From the Daily: The problems of cross-examination

Sunday, September 16, 2018 - 6:05pm

Last Friday, the Sixth Circuit Court of Appeals ruled on a controversial sexual assault case against the University of Michigan. Judge Amul Thapar wrote the decision, stating that “if a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.”

This case involved a male student, referred to as John Doe, and a female student, named Jane Roe, who were attending a fraternity party. Doe allegedly sexually assaulted Roe after serving her alcohol, and Roe went to the hospital to have a rape kit administered later that evening. No criminal charges were made against Doe; however, the University decided he was guilty of sexual misconduct, and he left school before being expelled. Doe then sued the University on the grounds that he was denied his right to a cross-examination of his accuser, and the circuit court eventually ruled in favor of Doe. In light of this ruling, we as the Editboard at The Michigan Daily encourage the University to stay committed to supporting and protecting all survivors of sexual assault.

The ruling declares those accused of sexual misconduct must be given the option to cross-examine their accuser. Researchers have shown that live cross-examination does little to find truth in legal proceedings, but rather it gives the defense an opportunity to intimidate and manipulate the victim. Cross-examination is, at its essence, combative and aggressive; Thapar himself characterizes the practice as “the back-and-forth of adversarial questioning” in the ruling. 

In cases of sexual misconduct, this process of adversarial questioning is gratuitously traumatizing for the accuser, as it requires them to face their alleged abuser and recall distressing events. Due to this effect, the ruling may discourage victims from coming forward to the University about the assault or misconduct they have experienced, in fear that they will be forced to relive it through cross-examination. Furthermore, it may also discourage witnesses from testifying on behalf of accusers, as they are also subject to cross-examination. There is reason for having separate University and legal proceedings in sexual assault cases, so as to provide the survivor with greater agency in handling the case. This ruling narrows the gap between these two kinds of proceedings, thus removing a substantial part of that agency.

This ruling also has implications beyond cross-examination; it has been framed as a victory for the accused in cases of sexual assault, and also as a victory on behalf of men in general. In the ruling, the judge writes the University has “discredited all males, including Doe, and credited all females, including Roe, because of gender bias,” suggesting in the effort to support survivors, the University has in fact been discriminatory against all men. This rhetoric conflates “males” with “accused,” and “females” with “accusers,” which reinforces the idea that men cannot be victims to sexual assault. Furthermore, it paints an image of accusers as conniving or wrongly motivated in coming forward. Framing sexual assault in this way is dangerous and harmful to survivors of all genders.

The University has yet to announce if they will appeal this ruling to the Supreme Court. We hope regardless of their decision, they will stand ardently on the side of survivors and not succumb to rhetoric that seeks to intimidate them. Assuring that sexual assault proceedings are done in a manner that makes the victim as comfortable as possible is essential to this goal, as we want survivors to feel empowered to come forward, rather than discouraged by fear of intimidation. Moreover, we encourage the University to continue creating a process that encourages healing for survivors rather than disturbing traumatic memories.

In summary, we as an Editboard do not believe cross-examination will add anything beneficial to sexual assault cases at the University; moreover, it will unnecessarily upset survivors. The rhetoric surrounding the case has also been harmful and counterproductive. For these reasons, we do not support the circuit court’s ruling. Despite the University’s decision in this particular case, we hope they will continue to protect their students by supporting survivors in all future legal proceedings.

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