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Joe Biden’s Double Standard

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eye on the news

Joe Biden’s Double Standard

Confronting a sexual-harassment allegation, will the former vice president demand the due-process protections that he previously denied to others? April 15, 2020
Politics and law

After weeks in which the allegation remained largely below the surface, on Sunday, both the New York Times and the Washington Post published lengthy articles exploring former staffer Tara Reade’s assertion that Joe Biden sexually assaulted her in the early 1990s. Both articles included on-the-record denials from former Biden staffers and raised other doubts about the veracity of the Reade allegations.

Reade’s claims already seemed dubious, for reasons laid out in a tightly researched piece from columnist Cathy Young, published five days before the Times and Post exposés. The allegations, however, posed a problem unique to Biden among leading 2020 presidential candidates. For the past decade, contending that “this culture of ours is upside-down,” his rhetoric and policies have sought to make it far easier to prove sexual-assault allegations—even dubious ones like Reade’s—in a noncriminal context.

The highest-profile example, of course, was the Obama administration’s effort to use Title IX to weaken the rights of college students accused of sexual assault. Biden, the administration’s point man on the policy, oversaw a crusade that required schools to change their procedures to enhance the likelihood of guilty findings—generating hundreds of lawsuits from wrongly accused students as a result.

Biden’s rhetoric has also employed a de facto presumption of guilt. On a 2017 conference call with campus accusers’-rights activists, Biden offered a simple message to those who alleged that they had been sexually assaulted: “I believe you.” Proof for their claims, it seems, wasn’t necessary. The following year, during Supreme Court Justice Brett Kavanaugh’s nomination hearings, Biden suggested that women making high-profile allegations deserve an even greater presumption of truthfulness: “For a woman to come forward in the glaring lights of focus, nationally, you’ve got to start off with the presumption that at least the essence of what she’s talking about is real.”

For reasons that neither paper explained, the Times and Post articles declined to address the chasm between Biden’s past proposals on how to evaluate sexual-assault allegations against college students or his political foes and his current position regarding appropriate standards when he is the accused party. Instead, both articles provided context by exploring President Donald Trump’s past record. But the validity of past sexual-misconduct allegations against Trump has no bearing on the question of Biden’s changing standards. As lawyer and blogger Scott Greenfield observed, the key issue at play here is Biden’s “hypocrisy. Either it’s due process for all or none. Biden doesn’t get a pass.”

The Post included a quote from a Biden spokesperson asserting that the former vice president now believed only that women should be “heard respectfully,” and then that “such claims should also be diligently reviewed by an independent press.” To online news outlet The Intercept, the spokesperson offered an even higher standard, citing “an obligation to rigorously vet those claims.” Neither statement attempted to reconcile Biden’s new, due-process-friendly beliefs with his championing of Obama-era campus procedures that “strongly” discouraged cross-examination of accusers, forced schools to accelerate their timetables in adjudicating cases (in ways that might frustrate a diligent review), or mandated guilt-presuming training of the non-independent adjudicators.

As initially published, the Times article included a sentence indicating that the paper “found no pattern of sexual misconduct by Mr. Biden, beyond the hugs, kisses, and touching that women previously said made them uncomfortable.” The phrase similarly appeared in a tweet promoting the article. But the passage was then edited out of the article, and the tweet deleted, on grounds that it “had some imprecise language.” In an interview with Ben Smith, Times executive editor Dean Baquet revealed that the Biden campaign, which thought that the phrasing “made it look like there were other instances in which he had been accused of sexual misconduct,” had requested the edit.

Perhaps the Times (and Biden) no longer consider such conduct relevant to determining pattern evidence. That would be news to students subjected to such rules during the Obama years. Brandeis University, for example, found a student guilty of sexual misconduct in part for awakening his long-term boyfriend with kisses (which the boyfriend said, after a bad breakup, were unwanted) and looking at his boyfriend in the nude without asking advance permission. As U.S. District Judge F. Dennis Saylor’s opinion in the student’s subsequent lawsuit recognized, the standard that Biden sought to impose on others failed to understand that “whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning.”

Of course, it’s possible that Biden—having now been subjected to a seemingly false allegation himself—has seen the light on why due process matters for all. A test will come in the weeks ahead, when the new Title IX regulations presumably will be issued. Will Biden now support them, since they will create procedures allowing campus allegations to be “rigorously” vetted? Or will he revert to his “I believe” standard? And if he takes the latter course, will the Times and the Post maintain their silence about his double standard?

Photo by Mark Makela/Getty Images

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