Should Anyone Care that Sexual Assault is “Out of Character” for Biden?

Posted in: Injury Law

Last time I wrote on these pages, I considered the tension between “Believe All Women” and “Elect Joe Biden.” I discussed the difference between denying the truth of allegations and devaluing the importance of alleged misconduct, and I reviewed the compromises that one must necessarily make when the other candidate is Donald Trump. In this column, I will take up a different and more specific question: the relevance of character evidence in cases of sexual assault. As one commentator put it, the sexual assault allegation against Joe Biden seems “out of character.” What do people mean when they say that, and of what value is such a statement by a commenting character witness?

Why No Other Complaints?

During his campaign for president Herman Caine (a model of sober discretion, in retrospect), faced allegations of sexual harassment. Among the things he said in his own defense was that no one was talking to the many women who had not accused Caine of sexually harassing them. At the time, I found the line hilarious. Describing it to students, I likened the complaint to a murder defendant declaring that all anyone wants to talk about is the one person he might have killed but not all of the billions of people he didn’t murder. Putting the best face on it, the argument is that if this defendant were a killer, then wouldn’t there be other bodies? And if Herman Caine were a sexual harasser, would there be so many women ready to testify that he never harassed them?

If the question is whether a clean record has some relevance to the likelihood of guilt or innocence, the answer is probably yes. If a particular person has never before been accused of the bad thing he stands accused of now, then he seems less likely to have committed the act at issue than he would be if he had been accused or found guilty of other such deeds before. But it is not all that probative of innocence. People commit wrongful deeds and get away with them.

In the case of sexual harassment and sexual assault, moreover, victims tend to be ashamed of what they are enduring or have endured. They fear the questions about why they remained at the job or in the relationship if they were suffering abuse. And they worry that people will judge them as weak for failing to come forward before. We attach a tremendous amount of shame to the status of victim when the perpetrator is a loved one or close acquaintance, particularly in the common situation in which victims choose to stay where they are notwithstanding the abuse. As a result, many victims of sexual harassment and other such behavior keep things to themselves. When someone finally comes forward, the lack of predecessors accordingly means very little in such cases.

Joe Biden, accused of committing a serious act of sexual assault, could fall into this category, one in which the absence of evidence really is not evidence of absence.

What Can You Imagine?

If we know someone who stands accused of sexual assault, we might assess his character in a different way. Instead of looking at the absence of other similar accusations (prior bad acts), we could consult our own knowledge of the accused. If I served as a character witness for someone accused of misconduct, I might be inclined to say that I could not imagine the defendant doing the thing he is alleged to have done. Is my testimony here meaningful?

What exactly would it take for me to be able to “imagine” a person engaging in the misconduct? Do I literally mean that my imagination comes up short if I try to run the scenario through my head? If so, that seems to reflect only on the poverty of my imagination. I should be able to imagine the mildest and kindest person doing something violent because it really is not that difficult. Perhaps it means that the prospect of the defendant’s engaging in such conduct is so dissonant with what I have come to know about him that he could not possibly have done it. Is that a valid or logical inference?

It may be slightly better than the “cannot imagine” argument, but it is still extremely weak. We tend to think that people have a transparent character that good friends and acquaintances will necessarily detect and be able to apply to other situations. In fact, though, I probably believe my friend incapable of sexual misconduct because (a) I like my friend, and I don’t believe I would like a rapist; (b) my friend has never become violent or scary around me; and (c) I have never seen my friend become violent or scary around another person. None of this amounts to very much, though.

The willingness to commit a crime does not necessarily alter the appearance or style of the would-be perpetrator. I would tend to assume that a rapist has as many friends as anyone else does, even though lots of people would not think of themselves as the sort who would befriend a rapist. The fact that I have never seen my friend behaving in a scary or violent fashion with me or anyone else means only that my friend is capable of self-control and accordingly limits his misconduct to desired venues. Being willing to rape is not akin to having an allergy, where if a person breathes comfortably around a cat, she must not be allergic. A person who sexually assaults one victim generally has friends and even sexual partners whom he has never sexually assaulted.

Prior Bad Acts

Am I saying here that knowing an accused perpetrator’s affirmative prior history of misconduct is nearly irrelevant? No. Relevance can be a one-way ratchet. The fact that we know of no other complaints and that friends and others cannot imagine that the allegations are true has relatively little probative value on the question of guilt. But if we do know of other complaints and/or if friends and others find the accusation highly plausible, that would tend to provide strong support for the guilt hypothesis. This may sound like hypocrisy or bias, but it is not.

Consider the fact that people have a strong incentive to hide both their misconduct and their inclination to behave in ways that society condemns. Take a trivial example: people picking their noses. In the social psychology laboratory at Columbia, members of a professor’s team (including undergraduates like myself at the time) would watch our subjects through a one-way mirror when they believed they were alone, and we would take notes on their behavior. Unfortunately, this work was less glamorous than it sounds, and people generally did very little while “waiting for the experimenter to return.” I still remember the disgust I felt when I watched one subject picking his nose throughout the waiting period. What I witnessed singled this individual out from the crowd. The fact that he was willing to pick his nose in this context made it quite likely that he would do the same in another quasi-private milieu. The same could be said of the subject who thought that masturbating under a desk in the psychology laboratory would be an engaging way to pass the time. Such behavior has tremendous relevance precisely because it departs from the norm in the given circumstances. By contrast, learning that a particular subject neither picked his nose nor masturbated during the experiment would tell us nearly nothing about the subject. This could be true of him, and he could still be any sort of person. By the same token, the absence of observed and reported sexual misconduct tells us little about the observed.


As I said in my last column, I intend to vote for Biden, barring unforeseen circumstances, because he is better than Trump. Nonetheless, the remark that sexual assault “seems out of character” for Biden struck me as ignorant. The particular person who said it added that if there were more examples, that would be a very different story. He is right, I think, to consider other examples a relevant matter, as I have suggested. But the lack of other examples, or what he called a “one-off,” has little probative value. People in general do a good job of hiding various things about themselves from public observation, particularly those things that would attract condemnation and result in shame or even penalties. And character is far less transparent than we tend to assume. When we consider whether or not to believe Tara Reade’s accusations against Joe Biden, it would therefore behoove us to remember that the absence of other alleged victims does not exonerate him or suggest that Reade is lying, and our inability to imagine him committing a sexual assault means very little. Sexual assault is a crime that people not only commit in private but also, quite understandably, conceal their inclination to perpetrate so that friends and family would neither expect nor imagine their loved one conducting himself in such a fashion.

I have no idea whether Joe Biden committed sexual assault. I have not looked closely at the alleged victim’s account or at other evidence that might corroborate or contradict that account. It is nonetheless important for everyone to avoid logical errors in trying to reach a conclusion on the factual question. Only by doing so can we hope someday to get at the truth.