Under His Rules, Biden Is Guilty of Sexual Assault

If Joe Biden is guilty of Tara Reade’s allegations, then he deserves all of his current public opprobrium and more. If he is innocent–if he is indeed a good man who, despite his history of poor regard for personal boundaries, would never do anything to intentionally hurt a woman–then he is undoubtedly experiencing some of the fear, anger, and helplessness that a great many college men and women experienced in the tribunals he helped create.
Former Vice President Joe Biden is the presumptive Democratic nominee. Photo: Matt Rourke/AP

In light of the new evidence supporting Tara Reade’s allegation of sexual assault against former Vice President Joe Biden–both the video of her mother apparently calling into Larry King Live in 1993 to discuss the matter, as well as the emergence of two additional witnesses to corroborate her story–it is worth reexamining the matter on a few different levels.

First, it should be noted that although these new pieces of evidence do strengthen Reade’s case significantly, her story still leaves enough room for our justice system’s evidentiary standard of reasonable doubt. However, one thing that is certain is that Joe Biden would not want to be tried in one of the campus sexual assault tribunals he helped create. 

As vice president under President Barack Obama, Biden led the administration’s crusade to end sexual assault on university campuses. In April of 2011, Biden, along with then-Secretary of Education Arne Duncan, released a “Dear Colleague Letter” announcing a wide variety of new procedures and requirements for educational institutions receiving federal funding. Among other things, the letter severely reduced the standard of evidence for violations of Title IX of the 1972 Education Amendments, thereby curtailing due process rights for students accused of sexual assault.

Let’s imagine, for a moment, that Joe Biden was being tried by his own standards. Pretend, if you will, that Tara Reade and Joe Biden were both university students, and the alleged assault occurred at a college party rather than on Capitol Hill. Importantly, Biden would only need to be proven guilty by “a preponderance of the evidence.” This means that his accuser’s story would only have to be more likely than not to be true. This is a significantly lower bar than the “clear and convincing evidence” standard which colleges were permitted to use prior to the Dear Colleague Letter, and lower still than the “proof beyond a reasonable doubt” standard which would be required in an actual criminal proceeding, which, for the benefit of justice for victims and the due process for the accused, is where sexual assault cases belong.

But that’s not all. During his hearing, Biden would be denied most of the crucial due process protections that would, in an ordinary civil or criminal trial, permit him a fair chance to defend himself. According to Harvard law professor Jeannie Gersen, he would almost certainly be unable to cross-examine Reade or her witnesses, and he would likely not even be presented with the full scope of the evidence against him. In fact, some colleges attempted to do away with the hearing process altogether, and implement “single investigator models” in which one sole official, whose singular biases could tend to favor either victims or the accused, investigates the case and acts as judge, jury, and executioner.

Let’s say that, even after all this, Biden was found not responsible. In a regular court of law, this would be the end of it: he would be protected from further prosecution by the Fifth Amendment’s double jeopardy clause. The Dear Colleague Letter, however, recommended that if the accused had the right to appeal, the accuser must, too. This means that Tara Reade could force Joe Biden to be tried all over again; either this, or Biden would be protected from double jeopardy but himself denied the right to appeal if found responsible.

Education Secretary Arne Duncan (right), President Barack Obama (center), and Vice President Joe Biden (left) coordinate gun violence strategy. Photo: Pete Souza/White House

A strong argument can be made that there now exists a preponderance of evidence pointing to Biden’s guilt. In addition to the Larry King Live video and the two new witnesses who claim that Reade told them of the incident in the mid-1990s, her account has been supported by at least one other friend, and, in part, by yet another friend and her brother. Reade is known to have worked for Biden at the time, and multiple interns report that Reade unexpectedly stopped supervising them in April of 1993. Although others who have worked for Biden deny Reade’s claims, and some doubt has been cast on her personal credibility, there is no strong evidence contradicting her account.

Reasonable people may disagree at this juncture as to whether Reade’s allegations are more likely than not to be true, but an exhaustive analysis of the evidence for and against Biden is not within the scope of this piece. Yet, though there is no certainty that Biden would have been found guilty in a campus tribunal of his making, it is a fact that many college students have been found guilty on far flimsier evidence than that which currently exists against Biden.

There are too many stories to list, but a number of them have been documented by Reason magazine. Most of these follow a familiar pattern: a sexual encounter leads to disputing accounts, bumbling (and frequently biased) campus administrators trying to get to the bottom of things, and a final result that flies in the face of all common sense.

At Colorado State University, an athlete was suspended for years over a consensual sexual encounter, despite the fact that the alleged victim told authorities the relationship was consensual and ongoing. At the University of Cincinnati, a woman was suspended indefinitely after a man, fearing she would report him after a mutually intoxicated encounter, opted to report her first. At Amherst, a student was expelled after a sober woman performed oral sex on him in her room when he was blacked out. At George Mason University, a student accused of sexual assault was exonerated by the campus tribunal, but an administrator unilaterally overturned the decision and expelled him anyway. At my own alma mater of UCSB, a student was suspended for two years despite the fact that the two eyewitnesses to the event said that a sexual assault would have been “physically impossible;” the judge who overturned the decision said that the accused had been denied “even a semblance of due process.”

While these students were the direct victims of Biden’s policy, in a larger sense all college students are indirect victims. These regulations created a chilling effect on campuses, casting a pall of confusion upon ordinary human relations and replacing love with suspicion. Even those who never found themselves brought before a campus tribunal have had to live under the perennial threat of one.

Students walk through the campus of the University of North Carolina at Chapel Hill in 2018. Photo: Jonathan Drake/Reuters

One could argue that Biden, although motivated by noble intentions in promoting campus sexual assault reform, simply did not stop to consider all of the consequences of his actions. However, when confronted with opposing opinions, he refused to give them any consideration. Instead, when President Trump’s Secretary of Education Betsy DeVos took steps to draw back Biden’s reforms, he referred to supporters of her move to defend due process, who include the American Civil Liberties Union, as “Neanderthals” and compared them to the neo-Nazis who had marched in Charlottesville, Virginia. This speaks not to good intentions but to an ideological dogmatism that refuses to yield before new evidence.

DeVos did rescind the 2011 Dear Colleague Letter in September 2017, and has since been developing a new set of guidelines for handling such matters, including due process for the accused and greater attention to K-12 adult-minor transgressions. However, even after rescinding or modifying these guidelines, many “terrified” schools have continued to adhere to Obama-era guidelines. Amid these changes, Biden himself has given no sign of having gone back on any of his earlier views, and that should come as no surprise–he would hardly want to appear to be insulating himself from the consequences of his policies; Biden should consider himself very, very fortunate that he does not have to face the system which he helped design and  implement.

If Joe Biden is guilty of Tara Reade’s allegations, then he deserves all of his current public opprobrium and more. If he is innocent–if he is indeed a good man who, despite his history of poor regard for personal boundaries, would never do anything to intentionally hurt a woman–then he is undoubtedly experiencing some of the fear, anger, and helplessness that a great many college men and women experienced in the tribunals he helped create. To be accused of a heinous crime, and to have no means of fully exonerating oneself is a uniquely disempowering experience. But their fates were worse than his. Biden will almost certainly never see the inside of a jail cell, or even lose a lawsuit. Should he be found guilty in the court of public opinion, he will still be a wealthy and powerful man, but these young men and women have had their lives, careers, and educational futures forever asterisked.

A certain karmic justice will have occurred if  Biden’s presidential aspirations are thwarted by a sexual assault allegation; whether innocent or guilty, Biden has done little to earn the benefit of the doubt on this matter. However, a commitment to the due process to which every American is entitled requires that he be given it anyway. While Tara Reade’s allegation should be taken seriously, we should treat it with the same sort of scrutiny that we would want of an allegation against ourselves.

Perhaps Joe Biden might even learn a thing or two in the meantime. Hopefully, if he is elected president, then he will take this to heart and be a better defender of due process than he hitherto has been. Justice for victims of sexual assault remains an important goal, but there are no easy solutions to the thorny problem of sexual assault on campuses, and colleges have consistently demonstrated an inability to effectively handle such cases in a manner which is fair to both victims and the accused. While many of the concerns that led to the implementation of the 2011 Dear Colleague Letter–including the propensity of many colleges to sweep sexual assault cases under the rug rather than risk damage to their reputations–are legitimate, the letter was an overall step in the wrong direction. It created a system which has engendered such an atmosphere of distrust that even serious claims of sexual assault are delegitimized, and as of 2020, there is no longer room for any reasonable policy-maker to claim ignorance of the overwhelming evidence of its consequences.

The solution may very well be to largely remove the matter of sexual assault from the purview of the university. Campus tribunals and administrative staff, established and trained to punish offenses such as academic misconduct and underage drinking, are ill-equipped to handle one of the most heinous crimes imaginable, and such cases would in most instances be better handled by police and the criminal justice system. Although imperfect, these institutions have a far better track record of handling such cases than universities do, and in a court of law, the accused is given every due process protection that universities deny.

These cases should be investigated thoroughly, and the consequences for sexual assault should be severe; naturally, this also means police departments should be given the resources needed to investigate these claims fully. As to the matter of protecting victims of sexual assault from the accused, a reasonable system could include taking steps to ensure accusers’ separation from their alleged assailants, such as arranging for separate housing and classes, without infringing on the rights of the accused.

In any case, a functional solution to this issue will require a balanced consideration of multiple perspectives and moral impulsions. This is something that Joe Biden, up to this point, has not demonstrated, and the bind he finds himself in with the Tara Reade allegation is the inevitable result.

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