Forget that Joe Biden is the vessel wherein the problem arises for the moment, but consider the problem itself.
Is Biden a faux-feminist sexual predator? Of course not. Yet under the modern standards he has championed, he would deserve condemnation. His intent doesn’t matter; neither does the fact that many women welcomed his affectionate gestures. (Biden himself has asserted that consent requires an explicit, “Yes, it is okay to touch me,” in which case all of his physicality is non-consensual.) Nor does it matter that some of his accusers took a while to be offended.
I believe Biden’s championship of women is sincere. Daily Beast columnist Danielle Tcholakian dismisses it as “benevolent sexism” more than feminism — chivalry, not equality.
Creepy sex predator or warm, affectionate human being? The reason the question arises with Biden is twofold, that he could end up the Democratic nominee for president and the anti-Trump forces are being somewhat cautious about destroying their last, best hope to oust Trump, and Biden has done yeoman’s time in the trenches pushing their cause, creating at least the facade of a bona fide feminist ally. Eating their own has become a sensitive point, hungry as the forces of wokeness may be.
But as Emily Yoffe notes, this same guy was the point
man person pushing the paradigm shift giving rise to this dilemma:
Among the cultural shifts orchestrated by the Obama administration was the assertion that evaluation of campus claims of sexual harassment and assault rest on the subjective feelings of the accuser. That meant it was irrelevant whether the accused had an intention to abuse, harm or offend. This was codified* in 2013, with the joint release by the departments of Education and Justice of what they called “a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” An analysis by the Foundation for Individual Rights in Education, a civil liberties group, found that the administration had abandoned the principle that claims of harassment should be evaluated based on an “objective” or “reasonable person” standard.
This was a critical change, and one that I would have expected lawyers, at the minimum, to appreciate. Particularly criminal defense lawyers, at least as far as my favorable bias toward my colleagues goes. After all, would they not be the first to argue, properly, that a person cannot be held to account for an offense when they have no notice of what conduct is prohibited, no definition of what the wrong to be prohibited might be?
The simpleton replies, “but don’t rape, but don’t harass, what’s so hard to understand?” At the top level, the question is what does the word “rape,” the word “harass,” mean? As these words once held meanings, at least to some extent, but have since become untethered from any cognizable definitions, they are now reduced to mere conclusory epithets. Of course rape is horrible, because it’s rape. Harassment too. But what are they?
At the next level, the best possible answer is “non-consensual” conduct, whether penetration, touching or, well, other stuff. Seems easy enough, and it’s the petard upon which Biden falls. His affection was given without his first seeking consent, enthusiastic or otherwise. The point is that people who forgive Biden his trespasses because he’s affectionate rather than grandpa creepy look to his intent, that he meant no harm.
But Emily’s point is that the intent of the actor isn’t relevant anymore. It’s the feelings of the recipient that define whether sex, touching and, well, other stuff, makes the act an offense. Some of the folks Biden touched were fine with it. Others, not. While ulterior motives may play a part in their post-hoc condemnations, the substantive difference is the level of sensitivity of the person being touched. Some are particularly sensitive, and so any touch will be deemed offensive, while others are made of sterner stuff and can tolerate a hand on their shoulder without crying “sexual assault!”
But how was Biden to know the level of sensitivity of the recipient of his affection? How would he know that he could plant a friendly and totally not sexual kiss on Sarah’s cheek but not Lucy’s? The obvious retort is that it’s a kiss. Clearly, a kiss is over the line, even a friendly one.
But then there’s the hand on the shoulder, or the knee. Is that the line, that no person should touch any other person without express consent? That would be an objective line for the actor to use to guide his conduct so as not to violate another person’s physical integrity, if that person was so sensitive as to find the touch offensive.
But we’re not done yet, as Joe Biden was the vice president, and Lucy Flores was a candidate running for office who sought, needed the veeps endorsement to the extent she wanted to have any chance of winning. So even if Biden had asked for consent, how could she say no? How could she risk offending Biden by responding, “keep your creepy old man hands, and lips, and nose, away from me”?
Had she given express verbal consent at that moment, was it really consent or merely coerced acquiescence? And this assumes she hadn’t imbibed, which would have relieved her of any agency to consent, since everyone knows people who have ingested a substance that could alter one’s thoughts, release one’s inhibitions, are incapable of consenting.
Or would it not have been clearer had the mechanism by which offense would be taken was a simple “no,” clear and timely, thus preventing whatever trauma that might be felt by even the most sensitive soul, no matter how benign or creepy the actor’s purpose might be?
The offense is neither better nor worse because of the availability of a rhetorical excuse for its condemnation or excuse, but it can’t be avoided if no one is clear on what the offense might be or how to ascertain whether ordinary human conduct, inflicted without any purpose to do harm, crosses the line. And even so, whether the line is fixed or in constant motion, even moving days, years, later, based on a perfectly fine excuse, but one that does nothing to alert the actor to the offense at the time, and in fact informs the actor that it’s not an offense at all?
If Biden’s conduct isn’t merely a matter of karma biting him in his woke butt, but a realization that we’ve been playing with an entirely untenable set of rules based on the feelings of the recipient rather than the conduct of the actors, this could prove a worthwhile turning point no matter what becomes of his candidacy. And it might actually help people by providing a viable rule for those who intend no harm and respect others.
Nobody has to be touched by Biden, or anybody else they don’t care to be touched by, but just say “no” if that’s what you want, and then survive the consequences, whether it’s denouement or silence. These are rules we can work with, and if Biden ends up being the means to expose the fallacy of affirmative consent, then he will have finally accomplished something useful.
*The use of the legalish word “codified” is unfortunate, as it suggests that it was lawfully enacted and made a part of the Code. It was not. Memorialized would be more accurate, as some bureaucrats put it into a letter that was never subject to congressional or even regulatory approval.