Former Vice President Joe Biden told reporters in September 2018, in the midst of Brett Kavanaugh’s confirmation battle, that “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 — whether or not she forgets facts, whether or not it’s been made worse or better over time.”
One of Biden’s most important initiatives as vice president was spearheading the White House’s task force that dealt with sexual violence on college campuses. Biden was a hype man for the Obama administration’s vast reinterpretation of Title IX, a law that prohibits sex- and gender-based inequality in schools. Beginning in 2011, the Obama-era Education Department recommended that universities follow a set of norms and procedures that made it more likely that a student who was accused of sexual misconduct would be found responsible and punished.
These practices were prescribed with the best of intentions in response to a very serious problem. But they have also undermined the ability of the accused, usually men and often men of color, to get a fair hearing. Many campuses routinely deprive students of the ability to defend themselves effectively and default toward believing accusers — no matter how long it takes them to come forward.
As the Democratic Party’s presumptive nominee for president in 2020, Biden now stands accused of sexually assaulting a former aide who worked in his Senate offices in 1993. His supporters are wrestling with the very difficult question of whether to believe his accuser, Tara Reade. Biden owes them answers. But he must also denounce his own impractical sexual assault standard, believing all self-described victims, or be held to it.
In a Friday morning interview with MSNBC’s Mika Brzezinski, the candidate failed on both counts. Asked to square his automatic trust in Christine Blasey Ford with the position he finds himself in now, Biden first tried to pretend that he had merely advocated taking Blasey Ford seriously. After Brzezinski repeated his own words back to him, he retreated and claimed that victims such as Blasey Ford should be believed “unless it’s proved she wasn’t telling the truth or unless it’s clear from the facts surrounding it that it isn’t the truth.”
But such a standard, presumed guilty until proven innocent, wouldn’t get Biden off the hook since there’s no hard evidence confirming or denying the accusation against him.
Last year, Reade claimed in an interview that Biden touched her on the shoulders inappropriately and that his office was rife with sexual harassment when she worked there in the early 1990s. A more serious allegation, that Biden forcibly penetrated her with his fingers, did not emerge until recently. Reade has produced some support for her claim: A former neighbor has spoken on the record about hearing the full story from Reade in 1995 or 1996, and it’s clear Reade told her family about general mistreatment under Biden. On the other hand, she waited decades to go public, changed her story, and has previously voiced support for Biden — even praising him for his work on preventing sexual assault.
These are important reasons to be cautious about believing Reade. Yet none of them would deter a Title IX adjudicator from ruling against an accused student under the standards Biden advocated. Indeed, if the allegation against Biden were being decided by the kind of adjudication system that he helped enshrine on college campuses, it’s quite likely that he would be found guilty.
Samantha Harris, an attorney specializing in campus disciplinary issues and a senior fellow at the Foundation for Individual Rights in Education, told me, “For years, Biden has been a leading proponent of a system under which students accused of sexual misconduct are presumed guilty and routinely expelled without so much as a hearing or the opportunity to confront their accuser.”
For one thing, the Obama-era standards essentially obligated universities to investigate all sexual misconduct complaints no matter how long ago they had occurred. Many are adjudicated months or even years after the incident in question. According to one survey by an insurance group, the average period of delay is 11 months.
For another, universities have been encouraged to adopt a victim-centered approach to adjudication. This means that inconsistencies in a victim’s story are not considered disqualifying: On the contrary, they are to be anticipated. The University of Texas at Austin’s sexual assault investigation training materials, for instance, stress that “trauma victims often omit, exaggerate, or make up information when trying to make sense of what happened to them or to fill gaps in memory.”
Even if the accused has solid evidence on his or her side, there is little guarantee that the individual would be afforded a fair hearing. Federal guidance discouraged cross-examination at misconduct hearings, instead recommending a single investigator model of adjudication. Under this model, one university official is appointed to determine the charges, collect statements from both parties, decide which witnesses to interview (if any), and then publish a report that effectively decides the matter.
This system has produced some truly farcical results, such as the 2017 expulsion of University of Southern California student Matthew Boermeester for assault even though the purported victim, his girlfriend, emphatically denied that he had done anything wrong.
Unfair Title IX procedures have prompted more than 500 lawsuits, and the accused have won about half of them. To her credit, Education Secretary Betsy DeVos recognized the problems with the current approach early in her term and has worked to revise and improve the federal government’s Title IX guidance. She is expected to announce new rules later this month.
DeVos’s proposed changes have come under heavy criticism from victims’ rights advocates, including Biden, who panned them as “devastating” for college-aged women. But he can’t have it both ways.
Either the mere existence of an unproven allegation is disqualifying on its own and Biden cannot be a candidate for president, or people deserve some basic presumption of innocence, even outside a criminal setting — as on a college campus or in the court of public opinion.
A just standard would include empathetic respect for victims but would also require the vigorous pursuit of truth. Joe Biden’s sidestepping is failing both causes.
Robby Soave (@robbysoave) is a senior editor at Reason magazine and the author of Panic Attack: Young Radicals in the Age of Trump. He is currently writing a book about criticisms of big tech.
