The first public sexual misconduct claim I ever evaluated was Anita Hill’s sexual harassment claim against Clarence Thomas. I was in law school, locked into the daily classroom battles with my fellow students and professors, and I dove deep into the details. After Clarence Thomas, the names of accused politicians are simply too many to remember. The big names stand out—Bill Clinton, Bob Packwood, Anthony Weiner, Eliot Spitzer, Donald Trump, Roy Moore—and now Joe Biden, former vice president and presumptive Democratic nominee for president.
Over the course of more than two decades, I’ve developed a simple test for these claims: If the weight of the available evidence indicates that it is more likely than not that the allegations are true, then the accused should not hold high office. Requiring proof beyond a reasonable doubt is imprudent. After all, no person possesses a right to public office, and requiring such a high standard of proof would create a perverse permission structure for bad acts.
But lower burdens of proof are dangerous as well. We frequently hear politicians and pundits use phrases like “credibly accused.” What does that even mean? There are plenty of questionable statistics that claim only the smallest fractions of women make false accusations, but our legal system doesn’t adjudicate innocence but merely burden of proof. The percentage of false claims is unknowable, and as a result, almost any accusation can be subjectively deemed “credible” absent slam-dunk evidence of innocence.
Perhaps my mindset is influenced by more than two decades of litigation (including work on multiple sexual harassment cases), but when I review sexual misconduct claims, I ask myself, “Based on the available evidence, is this a case I’d feel comfortable taking to a jury?”