Compromise is one of those words that feels good, because it seems as if it’s always more reasonable to be, well, more reasonable. Except when invoking the brilliance of King Solomon, people often forget that the entire point of “splitting the baby” was that it would end up killing the baby. It wasn’t really an invitation to compromise, but a test of who cared enough to save the baby from certain death.
In an editorial at the Washington Post on the proposed Title IX regulations, the brain trust addresses a concern that a system providing minimal due process will serve to dissuade victims from coming forward.
At the same time, though, there are ill-advised revisions that are cause for legitimate concern because of the chilling effect they would have on the willingness of students to come forward with allegations of sexual misconduct.
Whether this is true at all is a matter of some dispute. Advocates argue this will happen, just as they claim now that very few “survivors” come forward under the current regimen, even though it does everything possible to facilitate their doing so.
On the other hand, if the system provided minimal scrutiny, would the potential that it chilled frivolous claims, false claims, be a bug or a feature? If someone was, in fact, sexually assaulted, raped, would their decision to act depend on their being believed without question, never questioned, never challenged, make the difference? Should it?
While WaPo doesn’t contend that the system should be entirely inquisitorial rather than adversarial, it does argue against one aspect of the new regulations, ironically the one held to be required by the Sixth Circuit’s decision in Doe v. Baum. Cross.
Most troubling, though, is a proposal that would guarantee a person accused of sexual misconduct the right to cross-examine the accuser. The examination would be done by the parties’ advisers, and personal confrontation between the parties would not be allowed. But there is still the very real risk that this requirement would discourage survivors of sexual assault from coming forward.
In a recent Post op-ed, Ms. DeVos acknowledged the emotional and psychological challenges that survivors face in reporting sexual harassment and assault. So surely she should recognize that requiring victims to submit to aggressive cross-examination in an adversarial setting would be a further deterrent to them coming forward.
Indeed, Betsy DeVos wrote the magic words of sensitivity toward “survivors.”
It is well known that survivors can face emotional and psychological challenges when reporting sexual harassment and assault. We must continue to have in place policies and procedures that encourage survivors to come forward, and we must support those who do.
A wag might suggest that these words were written to soothe the fevered brow of those who oppose the changes, but that would be cynical. A woman raped or sexually assaulted may well experience emotional and psychological challenges, but that doesn’t address the question at hand. How does a system distinguish between the woman who accuses and the victim?
WaPo employs the adjective “aggressive” before cross-examination, to add a whiff of harshness to its position. There are times when cross can be aggressive, almost invariably when the accuser’s testimony cracks and lies are exposed. It’s rarely harsh when the accuser is sympathetic, when their testimony rings true. When that’s the case, aggressive cross is counterproductive, and there’s no purpose in treating a sympathetic witness harshly.
There are other, far less traumatizing ways to pose questions and get needed answers.
This is true, even though WaPo fails to mention any. Questions can be submitted to the factfinder to ask on the accused’s behalf. They might be edited, or the factfinder might decide they’re not material or relevant, or too offensive, and not ask the questions at all. There would be no ability to follow-up based on answers, which is key to effective cross-examination. There would be no ability to exploit a lie or a surprise answer.
These are the things that make cross-examination matter, useful in their ability to expose deception and false accusations. They would be less traumatizing, for sure, but they wouldn’t get “needed answers” unless that means the answers that confirm a predetermined outcome where the accuser is never put under scrutiny.
And that, of course, is what is meant by discouraging “survivors” from coming forward. The thought of being cross-examined may well discourage some accusers from complaining. That will be up to them to decide, whether fear of challenge will dissuade them. But there is no effective alternative to cross-examination, whether aggressive or otherwise.
This isn’t to be callous toward women who have suffered rape or sexual assault, but to acknowledge that any system created to determine whether someone is a victim or not must provide the minimum tools to make that happen or it’s just splitting the baby. There is a serious doubt whether cross-examination will be sufficient, as it’s merely one aspect of due process in a twisted system. What of the burden of proof? What of the training and bias of factfinders? What of the investigation, designed exclusively to assure that the male is found guilty and punished?
Why WaPo chose to raise the specter of an alternative to cross without bothering to mention, no less justify, its position is curious. Perhaps they realize they’re shooting blanks. Perhaps they just couldn’t be bothered. But when it comes to adjudicating guilt, there is no baby to split if one cares at all about trying to ascertain facts. Except in these proceedings, the child who would suffer from splitting the baby is the accused. Somehow, it seems likely that the nice folks at WaPo know this, and that’s their point.