While the New York Times looked the other way. Cathy Young addressed the Tara Reade accusation of sexual assault against Joe Biden, arguing that based upon what was known at the time, it was implausible.
And yet even with minimal scrutiny, Reade’s account has major credibility problems.
In response, Ben Burgis agreed that the “believe the woman” mantra was an absurd mantra, but that the accusations were plausible.
The moral calculation underlying the “guilty beyond a reasonable doubt” standard for criminal trials is “Blackstone’s Ratio.” It’s better for ten guilty people to go free than for one innocent person to be imprisoned or executed. This isn’t even the standard for civil trials, and it not only shouldn’t but can’t be the standard used by private citizens trying to muddle through the epistemic morass and decide what we think of Kavanaugh or Biden.
And in response to Burgis, Nick Grossman argues his rationalization as to why the standards for “judging” Kavanaugh and Biden are different, arising after Tara Reade’s neighbor came forward to say there was a contemporaneous prior consistent statement.
You don’t really know either.
And that’s what I think is missing most from the Kavanaugh and Biden discussions: accepting that we don’t really know and figuring out the best way to make a decision under conditions of uncertainty.
To be fair, none of these writers are lawyers, and their arguments relating to criminal burdens, civil burdens and “the epistemic morass” are largely simplistic, vague and confused. To the extent they get the rubric right, that fail miserably to grasp the rationale. Still, to people for whom the rubric is close enough, they appear to offer some sort of “moral” suasion that avoids the legalisms while justifying their rhetorical arguments that we can engage in some legitimate judging of guilt nonetheless.
It’s wrong. It’s nonsensical. It’s very dangerous.
First, whether the accusations are “plausible” is very much like the recently adored cry that accusations are “credible.” These aren’t standards. Implausible doesn’t make it false. Plausible doesn’t make it true. These are arguments based upon rhetoric, words that create the appearance to the legally ignorant of having some validity when they essentially mean nothing.
Yet, after additional information came to light, people are now taking this accusation far more seriously. It was one thing for Tara Reade to claim it. It’s another for someone else to bolster it. And this is where the danger comes into play.
You can, of course, vote for Biden for any reason or no reason. This is America and no one is under any obligation to explain or justify his or her vote. You can also believe in the tooth fairy and/or Santa Claus if you like. That’s entirely up to you.
But what you cannot do is pretend that there is some legitimate subconstitutional legalistic standard by which you are entitled to contend that anyone, whether Kavanaugh or Biden, is “guilty” of criminal conduct. And what we’re seeing happen is people taking for granted that the sole mechanism in our society for ascertaining facts, for determining “guilt,” has been eschewed, and so we’re somehow entitled to move to a second tier system of making up whatever rules, whatever standards, whatever rationalizations, we want to indulge in the mental masturbation of a non-trial trial as if it’s the real deal.
Non-lawyers waive away the legal rules that apply because, they argue, this isn’t a criminal trial, or even a civil trial, so no reason to bother with all that nasty technical stuff that impairs our ability to reinvent how we determine who to believe. What they fail to grasp is that these “technical” rules are the embodiment of both legal principles and the experience of hundreds of years of honing the mechanism for vetting the truthfulness of an accusation and, thereupon, testing it through the crucible of due process.
They aren’t aware of the reasons for discovery, motion practice, statutes of limitations, burdens of proof and presumptions of innocence. These aren’t merely rules, but rules grounded in foundational principles. These don’t get to be revisited in every case, as if we pick off a Chinese menu which rules we like as applied to any individual based on our tribe affiliation or personal ideology. There is no second tier mechanism for reaching these determinations with any validity. Either we play by all the rules or not. They don’t get to invent their own game because the real game, the game society has determined must be played, was forfeited.
When accusers choose not to avail themselves of the mechanisms society provides to address allegations of criminal conduct, they lose. It’s not that they are necessarily lying or wrong, but that we have a means of determining guilt and they failed to use it. There is no alternative means available. Indulging in the pretense that if an accuser neglected to pursue her allegations through the legitimate means, she gets a second try in the court of public opinion, where she will never been subject to the “technical rules” of due process or the crucible of cross examination, is nonsense. And yet, it’s becoming an accepted reality in the age of MeToo.
It’s bad enough that old claims on social media are sufficient for the unduly passionate to not only believe whatever suits their ideology, and to impose punishment* upon the “guilty” for no better reason than it feels right to the fearful. But to discuss and argue about it as if there were any validity to these faux standards has brought us to the point where we take for granted that there is some lesser mechanism for officially deciding fact and fiction, truth from falsity, and condemning the guilty as if we’ve given him some post-modern version of fairness.
You can vote for Biden or not. You can hate Kavanaugh or not. Nobody says you can’t be as foolish as you want to be. It’s your life. But take no refuge in the lie that there is some legitimacy to your belief that you know what happened, you know who’s guilty, you know the truth, because you heard it on the internet. It doesn’t work that way and can’t work that way.
The only valid conclusions are reached in court after the accused is afforded full due process. If that opportunity is passed, then you’re just making it up and believing what you choose to believe. You’re entitled to do so, but you’re not entitled to pretend there’s any legitimacy to it. This didn’t change for Kavanaugh and it doesn’t shift for Biden either.
*A perpetual and fundamentally flawed argument is that if prison time or money damages aren’t the outcome, then the punishment somehow isn’t serious enough to be worthy of any of the protections afforded an accused. As if destruction of a career, ruination of a life’s effort, forfeiture of years of tuition, is no big deal, this contention is utterly false.
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