JOE BIDEN And The Presumption of Innocence
Let’s not start with the Brett Kavanaugh precedent. Or with the vindictive excesses of the #MeToo movement. Rewind instead to 2011, when then-Vice President Biden and Education Secretary Arne Duncan announced a new policy of “comprehensive guidance” on matters of sexual violence and harassment for any school, college or university receiving federal aid. The guidance, issued in the form of a “Dear Colleague” letter, demanded that campus administrators use a “preponderance of evidence” standard — also known as “50 percent plus a feather” — to adjudicate accusations of sexual assault…As Joe put it, “We need a fundamental change in our culture. And the quickest way to change culture is to change it on campuses of America.”
It’s one thing to use a “preponderance of evidence” standard in a civil case. It’s another when there’s a 50 percent minus a feather chance that an innocent person might have his (and occasionally her) reputation destroyed and life wrecked by a dubious accusation. Within a few years there were at least hundreds of such cases. Accused students, sometimes facing charges based on ambiguous sexual encounters, were left to fend for themselves in campus tribunals with little regard for due process. Guilty verdicts in these kangaroo courts tended to run high, but so did stories of financial settlements between schools and the families of the accused.
There’s no reason why one can’t be in favor of tough penalties for sexual misconduct and fairness toward the accused. But if Biden ever spoke up against the miscarriages of justice carried out in the name of his policy, I’m unaware of it. For my part, I don’t believe Biden. I don’t believe Reade, either, barring dispositive factual disclosures. Belief in the absence of convincing evidence is a form of religion. It should not be a part of our legal system, confirmation hearings, campus codes, or political campaigns.
nytimes-Opinion piece by Bret Stephens
