#MeToo has lost its way: In defense of Joe Biden

It’s official: The pendulum of #MeToo claims has now swung too far. When a friendly gesture with no sexual intent is labeled a reprehensible act that should be subject to public shaming and even disqualification from public office, it is time that we all recognize that we are starting to lose perspective.

Let’s be clear before I continue: I am not talking about the crass comments by the current President that it’s okay to “grab [women] by the pussy” or inappropriate sexual relations between then-President Clinton and an intern. Those are clearly beyond the pale. But the “allegations” against Joe BidenJoe BidenRepublicans consider skipping witnesses in Trump impeachment trial Trump trade deal likely to sow division in Democratic presidential field Trump supporters at Pa. rally 'upset' after Democrats introduce impeachment articles MORE — that he touched Linda Flores’ shoulders and kissed the back of her head — are very different. 

Biden is an affectionate guy, but in a grandfatherly sort of way. He explained: “In my many years on the campaign trail and in public life, I have offered countless handshakes, hugs, expressions of affection” and never intended to disrespect or cause any harm to Flores or anyone else. But Flores has gone so far as to say that Biden’s intent is irrelevant. Kelly Ann Conway has repeated this argument, saying that it does not matter what Biden intended.

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Of course Biden’s intent is relevant. It’s the most important question here. That’s why Stephanie Carter, wife of secretary of Defense at the Pentagon, has had to publicly speak out about the picture of her and Biden that is making the rounds again. As Carter made clear, "The Joe Biden in my picture is a close friend helping someone get through a big day, for which I will always be grateful. So, as the sole owner of my story, it is high time that I reclaim it – from strangers, Twitter, the pundits and the late-night hosts."

She explained that she was nervous as her husband was speaking, and Biden leaned toward her as her husband spoke "to tell me 'Thank you for letting him do this' and kept his hands on my shoulders as a means of offering his support." She "felt awful" that Biden's support was wrongfully being used as "supposed proof positive that he didn’t understand how to respect women."

With both Carter and Flores, Biden was there to offer his support — not to demean, sexualize, or otherwise disrespect women.

If it’s the subjective feelings of the accuser that we prioritize over the intent of accused, then we will have flipped our presumption of giving the benefit of the doubt to the well-meaning. We will also put at risk coaches and teachers who encourage their students with a reassuring pat on the back. The same for business colleagues with a handshake. What’s next, criminalizing the close-talker? The list goes on. Let’s not send the message that there is to be no touching at all without fear of false accusation that it was “uncomfortable.”  Even the latest nose rubbing accusation, while super weird, wasn’t sexual.

Although accusations like this are good for tabloid click-bait, that can’t be the society we want to live in. Accuser’s feelings can’t count when it is objectively reasonable behavior, unless the person has expressed particular preferences. Otherwise anything at all can be deemed an offensive touching.

If the #MeToo movement is going to string up people for innocent, non-sexual, and well-intentioned acts, it has lost its way. There are plenty of well-deserving bad actors out there to focus on. Biden is not one of them.

David Oscar Markus is criminal defense attorney at Markus/Moss in Miami. He is a magna cum laude graduate of Harvard Law School. He tries criminal cases and argues criminal appeals throughout the country. Follow him on Twitter @domarkus.