Joe Biden doesn’t deserve due process and the presumption of innocence with respect to Tara Reade’s sexual assault allegation. Brett Kavanaugh didn’t deserve them with respect to Christine Blasey Ford either.

Why?

Neither is facing a criminal prosecution — no one has threatened to take their liberty away.

The #MeToo movement has inspired people across the world to speak out against sexual predators and put some, like Harvey Weinstein, in prison. But when the allegations don’t support a criminal prosecution (either because the evidence is too weak or the statute of limitations has expired), public figures continue to invoke criminal-law protections in the realm of the court of public opinion. For example, just two weeks ago, House Speaker Nancy Pelosi claimed that Biden is entitled to “due process.” The arbitrary use of this constitutional right, along with “beyond a reasonable doubt” and the “presumption of innocence,” dilutes these fundamental criminal-law protections, while abdicating Americans’ duty to properly vet our leaders.

We live in an America that incarcerates over a million people of color, who are five times more likely to be incarcerated than white Americans. As a criminal defense attorney, I’ve seen how this system operates. All too often, defendants who have been arrested, especially people of color and the poor, are treated as if they’ve already been found guilty. The presumption of innocence applies only in theory. Policies like the cash bail system, which force people who can’t afford bail to sit in jail indefinitely unless they agree to a plea deal, only exacerbate this injustice.

Thus, when white public figures invoke criminal-law constitutional protections for their own benefit, there’s a tone-deaf quality that completely ignores the staggeringly antagonistic and racist attitude towards these rights in our criminal-justice system. Unlike so many, Joe Biden’s freedom is not on the line.

Criminal law standards are not privileges that public figures should arbitrarily call upon to shield themselves from accountability. Rather, they’re constitutional pillars that only hold water when the government is attempting to take away the most sacred of American values: liberty.

That said, the criminal justice system is not the only place where we reckon with the consequences of allegedly wrongful behavior. Does an employer have to prove beyond a reasonable doubt that their employee stole from the business before firing that employee? Is a university professor entitled to the presumption of innocence when students claim that the professor acted sexually inappropriately with them at office hours?

The answer is “no.” As a country, we’ve never set the bar so high to prove malfeasance in relation to employment. And, at the heart of it, isn’t a presidential election ultimately an employment issue? The same goes for the Supreme Court confirmation process.

What standard, then, should we hold public figures to when there’s a decades-old allegation of sexual assault that can’t be prosecuted criminally? Far too often, those in power sweep inconvenient allegations under the proverbial rug. This certainly isn’t the answer. Since the “jurors” in a court of public opinion are the American people, a starting point would be to provide these jurors with access to the results of an independent, objective investigation. Such a non-partisan investigation team should be formed when allegations are lodged against someone seeking an important public office, such as President of the United States or Supreme Court Justice. This investigative committee should not draw conclusions. Instead, it should present the facts that it discovered from its independent investigation.

In the case of Joe Biden, American voters can then decide whether they believe Tara Reade’s allegations, and, if they believe them, whether Biden is still preferable to another man (Donald Trump) who has been accused of multiple sexual assaults, including rape.

What standard should people apply to the question of whether the allegations are true? Certainly, “beyond a reasonable doubt” is too high of a standard, resulting in a substantial likelihood that a culprit will be excused for their past wrongdoing. Since no one’s liberty is at stake, I propose that we use the civil law standard of “preponderance of the evidence.” This means that you treat the person as if they committed the alleged conduct if you believe that it’s more likely than not that the wrongful behavior occurred. That’s enough certainty to take money away from someone in civil court, and it’s enough certainty when choosing who to vote for at the ballot box.

As I said before, Joe Biden isn’t entitled to the same due process, presumption of innocence, or proof beyond a reasonable doubt that my clients are when facing criminal charges. But the voters are entitled to the facts, and the court of public opinion needs unbiased information so that we can make knowledgeable decisions about the future of America. This is the only way to ensure everyone’s voice is heard.

Chris Perri is a criminal defense trial and appellate attorney based in Austin, Texas. He’s committed to fighting for individual liberty, freeing the wrongfully convicted, and reforming the criminal justice system.

Suggested citation: Chris Perri, The Trial of Joe Biden in the Court of Public Opinion, JURIST – Professional Commentary, May 14, 2020, https://www.jurist.org/commentary/2020/05/chris-perri-joe-biden-sexual-assault-allegations/

This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org