Addressing charges that Joe Biden behaved inappropriately toward former Nevada legislator Lucy Flores, a spokesperson for the likely presidential candidate said, “Neither then, nor in the years since, did he or the staff with him at the time have an inkling that Ms. Flores had been at any time uncomfortable, nor do they recall what she describes.” Flores has alleged that, at a 2014 campaign appearance, then-Vice President Biden leaned in behind her, “inhaled” her hair, and “proceeded to plant a big slow kiss on the back of my head.” She described behavior that’s (at least) creepy, and goes well beyond what could be expected even of a “tactile” politician such as Biden. On the other hand, there appears to be no video of the interaction between Biden and Flores, and no witness has come forth to corroborate her account. As a prominent Bernie Sanders supporter in 2016 who seems eager to back a non-Biden candidate in 2020, Flores might have a political motive to exaggerate her recollection. Going on the evidence that now exists, her charge is hard to evaluate.
According to the standards of culpability that Biden has articulated in similarly conflicted situations, however, it’s an open-and-shut case. Perhaps no major American political figure has so consistently championed the erosion of due process for those accused of sexual misconduct. Even if Flores’s claims might be unprovable, distorted, or simply wrong, changing the culture about sexual misconduct and mistreatment of women requires that we accept her version of events. Biden will now learn firsthand how the mantra of “believe all survivors” has the effect of presuming the guilt of the accused.
Biden has certainly championed this approach for accused college students, as the Obama administration used Title IX to impose guilt-tilting procedures on the nation’s campuses. Until 2016, high-ranking administration officials consistently refused to provide much, if any, explanation on why they imposed a preponderance-of-evidence (a hair over 50 percent) standard; discouraged colleges from granting accused students the right to cross-examination; or demanded that schools let accusers appeal not-guilty findings.
Biden has been the most outspoken senior Obama administration figure to defend these policies. In a 2017 appearance at George Mason University, he framed campus sexual assault as a problem consisting solely of male attackers and female victims: “Guys, a woman who is dead drunk cannot consent—You are raping her! We’ve got to talk about this. Consent requires affirmative consent! . . . If you can’t get her to say ‘yes’ because she wants to, you ain’t much.” He used an interview with Teen Vogue to give a hypothetical address to fraternity members: “If you see a brother taking a drunk freshman coed up the stairs to his room and you do nothing, you’re a coward . . . You know that she’s not able to give consent.”
Biden responded with fury to Secretary of Education Betsy DeVos’s attempts to create fairer procedures for adjudicating campus sexual-assault claims. In a September 2017 conference call with victims’-rights activists, the former vice president derided DeVos’s supporters as “culturally Neanderthals.” Biden’s approach to campus sexual misconduct effectively reverses Blackstone’s central premise of common law: to undo the injustices of the past, this new tenet holds, it is better that 10 innocents suffer than one clearly guilty student escape. If this approach requires a presumption of guilt that sweeps up the innocent and the almost-certainly innocent as well as the guilty, that’s a price that society (and, of course, the innocent) must pay.
Biden’s current situation recalls that of former senator Al Franken, who bitterly criticized DeVos’s Title IX policies, only to flail about in defending himself against allegations (mostly less serious than what Biden faces) of sexual misconduct. Ideologically boxed in, Franken could not defend himself by challenging his accusers’ veracity, lest he appear to reject the party’s consensus about believing all complainants.
In an ideal world, Joe Biden would use his new experience as an accused party to champion fairer treatment across the board. More likely, he’ll fall back on a double standard, demanding that he receive the benefit of the doubt denied to others—especially students with far less power than he possesses.
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