Everyone asked to resolve sexual harassment or assault (hereafter SHA) claims learns quickly that without clear, corroborating evidence — i.e. most of the time — the only basis for determining what happened is the testimony of the involved parties. Ultimately you have to decide whose account is more credible. There are methods for figuring that out, but no guarantee your decision, however well-considered, will be correct.
Based on my experience at UC Berkeley evaluating countless SHA claims, I use four guideposts to navigate them.
The first is that, according to the best study I’ve seen, roughly 95% of the time something bad went on between the parties. It’s rare for an accuser to wholly fabricate an allegation. Why do so when the process is so harrowing?
The second is that the accused must be presumed innocent, and the burden of proof must be on the accuser. SHA activists revile this legal standard, because it puts the accuser at a disadvantage. But to exempt SHA claims from the standard is to invite exempting other criminal and civil offenses. Think that’s okay? Imagine if Trump, instead of tweeting his tantrums, could throw the targets of his wrath in jail.
The third guidepost is past behavior. SHA activists hate this one too, for good reason: it’s usually applied to the accuser only. From my perspective, it’s more crucial to scrutinize the accused’s past behavior. Predators are often serial offenders; they keep going as long as they can get away with it. So if multiple accusers separately come forth, it’s more likely the accused did as alleged — especially if the accusers’ descriptions of what happened coincide.
The final guidepost is more technical (and irrelevant to the Reade-Biden matter because her statute of limitations has run): what is the legal standard for a criminal or civil violation, and did the accused’s alleged behavior violate it?
In accord with the first guidepost, I’m persuaded something noxious occurred between Reade and Biden. In accord with the third, Biden’s record of inappropriate touching strongly suggests what happened involved creepy, unwelcome contact. But did his touching extend to digital rape? In accord with the second and third guideposts, I believe not, because his other incidents occurred in public, no other accusers have alleged such extreme behavior, and he’s entitled to the benefit of the doubt.
I acknowledge the element of uncertainty in that conclusion. Why would Reade make such an accusation if it isn’t true? I don’t know. I’ve never met her. I haven’t seen the inside information about her case that I got to see in UC Berkeley cases. The inconsistencies in her story are probably due to trauma or mental illness. But they may also stem from political animus hinted at in a New York Times analysis, and her allegations may mark the start of a pro-Trump disinformation campaign intended to discourage women from voting for Biden. (Think that’s a stretch? Read this.) Only Reade and Biden can know for sure what went on between them in 1993, and each of them may be forgetting, misremembering, or lying, which doesn’t help the rest of us.
Biden wasn’t my first choice for president — he wasn’t even among my top six — but assuming he gets the nomination, I’ll vote for him. While lamenting a lack of justice for Reade, Linda Hirshman, the longtime legal activist and feminist writer, made this gimlet-eyed, utilitarian argument: “Mr. Biden, and the Democrats he may carry with him into government, are likely to do more good for women and the nation than his competition, the worst president in the history of the Republic.”
P.S. for the best description of what it’s like to be a Title IX officer on a college campus, check out this remarkable Chronicle of Higher Education article. At Berkeley, my Title IX colleagues never got the credit they deserve.