On Sept. 7, 2018, the U.S. Sixth Circuit Court of Appeals ruled in the Doe v. Baum case that the University of Michigan must allow and mandate “live cross-examinations” in sexual misconduct cases where the accused could face suspension or expulsion or where the accuser’s credibility is disputed. The interim policy has been in effect since January 2019, but instead of having an attorney perform cross-examination, it is the accused interrogating the accuser. It was not mandated by the court that the cross-examinations happen this way.
Since January, the interim policy has been protested. In September 2019, the American Civil Liberties Union sent a letter to the University calling on the University to change the sexual misconduct policy to adhere to Title IX and due process by having the cross-examination performed by a lawyer, not an accused student. The ACLU claims that by having an alleged abuser conduct the cross-examination, it discourages reports, re-traumatizes those who do report and creates a “hostile campus environment.” Since the letter, the University has still not changed its policy. While the University does have a student advisory committee in place, the committee has not made any lasting changes to the interim policy, as it has been in effect for almost a year with no changes made. Students are in danger of becoming re-traumatized.
Beyond the ACLU, University students have protested the policy. I spoke with LSA sophomore Emma Sandberg, an aspiring public policy student, about her non-profit Roe v. Rape. The non-profit aims to help survivors heal through their activism. Sandberg has “met with countless administrators” to discuss the University’s policy and work to change it. Roe v. Rape’s goals are to have the University change the requirements and have the cross-examination conducted by professionals and for the University to cover the costs for attorneys. This way, regardless of their financial situation, both parties will have equal representation.
Cross-examination by an attorney is by no means a good solution. The process can be re-traumatizing, with the purpose being to find damning discrepancies. An attorney will know how to ask more cutthroat questions than the accused. The questions will be brutal, and the process will likely be longer. However, at least it is not the accused doing the cross-examination. Reporting is already traumatic, and an investigation even more so. But cross-examination performed by the accused heightens trauma. According to Roe v. Rape, survivors on and off campus have stated it would be “far more traumatic to be cross-examined by their assailants than by attorneys.”
As a survivor, the idea of not only facing my assailant but being cross-examined by him is beyond belief. I never reported, much less went to court against him, but the thought of even being in the same room as him is disturbing and causes anxiety. I cannot fathom having to be cross-examined by him, and those who have had to go through it should be commended for their bravery.
Healing from sexual assault is not just physical. The emotional healing process takes months and years to recover from. Even without reporting or seeing their abuser again, sexual assault survivors face shock, denial, depression, guilt, shame and anger. Furthermore, post-traumatic stress disorder can develop, as well as general fear and panic. With these emotions, other symptoms include flashbacks, nightmares, anxiety and depression.
Even though the court mandated the live cross-examination of survivors, the University can and should make it as comfortable as possible for the survivors. Cross-examination is going to be traumatic no matter whether it is an attorney or the accused performing the cross-examination. However, it will be even more traumatic if the accused is doing it. Cross-examination will force the accuser to relive the assault in distinct detail as their story is questioned over and over again. While the University does allegedly offer the cross-examination to be done using technologies like Skype, this does not necessarily make the cross-examination less traumatic or painful for the survivor. Furthermore, even through Skype, survivors still have to communicate with their assailant. They have to see their assailant’s face, and they have to listen to the questions and defend their trauma to the very person who perpetuated it, all in hopes of obtaining justice.
Whether through Skype or in-person, this is traumatic. Moreover, it is unnecessary. By either providing attorneys or covering the legal costs, the University can still adhere to the court’s mandate while also adhering to Title IX and due process. While providing legal aid obviously costs money, it would be money well and fairly spent. Additionally, providing legal assistance will benefit both parties as it relieves them from the financial stress of the situation. Despite the fact that University of Michigan students live in an expensive city, the student population is financially diverse. Not everyone can afford lawyers, but in investigations like sexual misconduct and assault, both parties deserve equal legal representation to ensure the trial’s equity.
The current sexual misconduct policy has been in place for almost a year. It is time the University reforms the policy. Enough is enough. In the meantime, remember to continue to support survivors. Support can be shown in a myriad of ways: listening to and believing their stories, providing resources, giving them space, respecting confidentiality and educating yourself about sexual violence. Do not pressure them to report. Reporting is not the responsibility of survivors; healing is. Instead, resources provided can be national or local, on or off campus and survivors can choose whether or not to utilize them.
Beyond supporting a specific person, you can show support by continuing to educate yourself, joining groups like the ACLU and even attending protests to show your allyship. A benefit of our large campus is that there are multiple ways to get involved even for one-time events. We, as students, do not have to quietly allow poor policies to continue. Through education and protest, we can convince the University to reform the policy. It takes time and passion, but the outcome is well worth it.
Chloe Plescher can be reached at firstname.lastname@example.org.