Joe Biden, Tara Reade and the steps that can provide a full accounting in the #MeToo era

We believe that justice requires a more nuanced approach than we are seeing in the current debate.
Image: Joe Biden
Joe Biden speaks at a campaign rally in Columbia, S.C., on Feb. 29, 2020.Matt Rourke / AP file
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By Barbara McQuade, Jill Wine-Banks, Joyce Vance and Maya Wiley

Tara Reade’s allegation of sexual assault against Joe Biden has provoked an important debate about how to balance the twin goals of holding powerful men to account for misconduct and protecting individuals and our political process from false allegations and disinformation.

As former prosecutors and attorneys deeply concerned about respecting the survivors of sexual assault and protecting the rights of the accused, we believe that justice requires a more nuanced approach than we are seeing in the current debate. We approach this, as we would any the report of any crime, through the neutral lens of investigation.

As former prosecutors and attorneys deeply concerned about respecting the survivors of sexual assault and protecting the rights of the accused, we believe that justice requires a more nuanced approach.

Reade, a former Senate staffer, has made deeply disturbing claims that in 1993, Biden pinned her against a wall and penetrated her with his fingers under her skirt, without her consent. Biden has denied the allegations.

Recently, a number of men in higher office have been accused of this type of sexual assault and misconduct. Pursuing justice in these cases is complicated by the passage of time as much as by their positions of power. The era of #MeToo has brought ever more revelations to light. It also exposed just how difficult they are to investigate, and why believing women doesn’t mean we don’t also ask for further information, context and clarification.

That means that step one after accepting Reade’s allegation is to investigate it. Because her allegations occurred long enough ago that the statute of limitations bars any possibility of prosecution, law enforcement agencies don't have jurisdiction to investigate, and investigation funded by either Reade or Biden would likely be viewed as lacking objectivity. But there is a vehicle for investigation — the independent press, where investigative journalists are highly motivated to seek out details and witnesses and where competing views will be aired.

While Reade did not report this at the exact time of the incident, we must not dismiss her allegation solely for that reason. Many survivors of sexual assault do not report it at the time due to the trauma it causes, fears that they will not be believed and will face consequences for reporting, and feelings of shame and humiliation.

For too long, women who reported sexual assault have been ignored, attacked, blamed or silenced to protect powerful and ordinary men. All of this has made sexual assault an underreported crime, and for this reason it is all the more important that Reade’s claim be thoroughly investigated to determine the truth. Accepting the allegation and investigating it is what we mean when we say believe all women.

Corroboration is key here. A few weeks after Reade made public her initial allegations of sexual assault, a handful of people — including her brother, a work colleague, and a neighbor — say that she told them about an incident with Biden years ago, though the stories vary, and at least one involved harassment, not assault.

In criminal prosecutions, these types of statements are referred to as “contemporaneous statements,” which can rebut an allegation of recent fabrication. In addition, there is an anonymous telephone call made by a woman to Larry King on his television show in 1993, referring to problems her daughter had with a “prominent senator.” Reade says this woman was her late mother. This has not been corroborated and is vague as to what the “problem” was.

These contemporaneous statements help to propel a case to the next level of investigation even in the absence of forensic evidence. Many of these witnesses have already been interviewed by journalists, including The New York Times. The Times also interviewed several friends of Reade, who anonymously confirmed in varying degrees that Reade spoke to them about a traumatic encounter with Biden. The Associated Press also talked to two people who anonymously said Reade had told them Biden assaulted her and that Biden harassed her, respectively.

In the context of sexual assault, complicated factors can contribute to such inconsistencies, making them important, not dispositive.

Prosecutors also examine prior inconsistent statements. In the context of sexual assault, complicated factors can contribute to such inconsistencies, making them important, not dispositive. Here, Reade has praised Biden for protecting women from sexual assault. As recently as 2016 or 2017, Reade, under the name Tara McCabe, tweeted praise for Biden’s efforts to address sexual assault and retweeted the accolades of others for his efforts. In one tweet, Reade said, “My old boss speaks truth. Listen."

Reade has also changed her story about the reason she left her job at Biden’s office, first claiming that she was fired for complaining about being asked to serve drinks, and then saying that she resigned when she was assaulted. She is also on record as saying Biden touched her shoulder and neck in a way that made her feel uncomfortable with no mention of assault.

This brings us to the next stage of an investigation: assessing the accused’s credibility and response to the allegation in comparison to the credibility of the accuser and supporting evidence.

In a lengthy interview with Mika Brzezinski on MSNBC’s “Morning Joe” last Friday, Biden stated repeatedly that the alleged incident “never happened.” He further said that he has not entered into nondisclosure agreements with Reade or anyone else “ever.” When asked how to reconcile his prior comments about believing women who reported sexual assault, Biden explained, “Look, women are to be believed, given the benefit of the doubt. If they come forward and say something that is, that they said happened to them, they should start off with the presumption they’re telling the truth. Then you have to look at the circumstances and the facts. And the facts in this case do not exist.” Following Biden’s interview, Reade canceled an interview that had been scheduled with Fox News on Sunday.

Biden has also called for transparency and investigation, asking the secretary of the Senate to search for and make publicly available any complaint filed by Reade, as well as “any and all other documents in the records that relate to the allegation.” Reade’s response was to equivocate, saying the complaint she filed with the Senate does not mention sexual assault. The secretary of the Senate later denied the request.

During the MSNBC interview, Biden was pressed to go even further and to allow a review of his personal papers, which are stored at the University of Delaware and are to remain sealed until after he leaves public office. Biden explained that the documents do not have any personnel records and therefore contain nothing relevant. Former Senate staffers say that when a senator’s office is packed up, personnel records are destroyed.

In addition to the unlikelihood of any personnel files being there, now that Reade said her complaint did not mention sexual assault, there is no reason to believe a search of those papers would advance the investigation of Reade’s claim. Staffers interviewed by The Associated Press neither recalled a complaint nor witnessed any inappropriate touching. Under these myriad facts, an expedition into personal papers decades old would set the tone for an investigation akin to that of Hillary Clinton’s emails. The search that should take place is the one that Biden has already called for within the records maintained by the secretary of the Senate.

The #MeToo movement means that Reade’s allegations must not be dismissed out of hand. Ultimately, the American people will render their own verdict in November, and voters should be informed by the facts. To help voters make their decision, Biden has already been more transparent about these allegations than President Donald Trump has about any of the multiple allegations of sexual assault made against him. The public, as well as Reade and Biden, deserve a full accounting. These steps will help provide one.