Muddle vs. Fairness

The late Supreme Court Justice Potter Stewart once famously commented of hard-core pornography — in a case concerning obscenity — that it was very hard to define BUT “I know it when I see it.”

I was reminded of the phrase by the recently emerging allegations of sexual assault against former Vice President Joe Biden. If people actually saw such behavior, they would, of course, be appalled, disgusted and horrified. But, as in most cases of this sort, the only witnesses—the alleged participants — have totally conflicting accounts and very slim—or no — supporting evidence.

In a court of law, those circumstances tend to favor the accused – indeed, it’s a well-known cornerstone of our justice system that it’s better for a guilty person to go free than to wrongly convict an innocent person.

The court of public opinion, though, is another matter. Guilt is in the eye of the beholder, according to whatever facts, values, or evidence they care to apply (or ignore). For Joe Biden, the jury is not 12 peers, but about 120 million Americans from all walks of life.

During the massive cultural shift sparked, in part, by the #MeToo movement, the framework of the legal system is rightly recognized as insufficient to this task, and our society does not yet have widely-accepted standards for assessing either the certainty or severity of cases outside of that system.

Perhaps we simply haven’t gotten far enough down our new, enlightened path. “Believe women,” after all, makes an important point, but that leaves half the population essentially presumed guilty. That can hardly be anyone’s idea of a just society. “Hear women” might be a better way of stating it, but falls short in its own ways. From there, we probably must forget about the idea of certainty and learn to replace up-or-down guilt or innocence with a spectrum of unclear conclusions, from which to determine the different societal responses appropriate at each point.

While such new standards could never be universal, people are likely to coalesce around one of several based on their underlying views, interests and values. Like much of America’s history, getting there will probably be messy, and in most cases unfair to too many. In the meantime, the trolls and propagandists will spew vitriol and manufacture ‘fake news’ regardless.

But, we’re not there yet, so we’re all considering how to weigh the allegation against Biden as an individual case. For me, I find the shifting story of the accuser and at least one of her witnesses disturbing; Biden’s reluctance to publicly search for personnel records at the University of Delaware is not helpful; and the Senate’s refusal to release any information that might confirm or refute the existence of a 27-year-old complaint is ridiculous.

I am unwilling to ascribe a nefarious motive to the accuser. If her story was provably false, it would be despicable (beyond deplorable—thanks Hillary!) – as it would be if provably true.

In this muddle, I simply do not see enough to disqualify Biden from seeking the presidency or serving in that office.  Absent more clarity, doing so would offend democratic principles – the common goal, after all, is justice, and no one (except perhaps Trump) would argue that a standard of guilty until proven innocent advances that lofty ideal. Others might reach a different conclusion, and Biden himself has urged people to “vote their heart” on the matter.

For disqualifying behavior, one needn’t look any further than the current occupant of the Oval Office.

Indeed, I know obscenity when I see it—on TV, almost daily.

Full stop!