Living among other people means accepting some unwanted touching — and Joe Biden

When I was handling sexual assault cases as a young state prosecutor outside Detroit, most allegations were clear: A man breaks into a woman’s house and sexually forces himself on her. It’s rape. 

But there were always a handful of cases in which the accuser and the accused recounted the same events with different perceptions of what happened. Typically, consent was the issue, and whether it was given or withheld turned on the finest of signals.

Unwanted touching occurs daily at offices, dinner parties, and bars across the country. It also occurs by politicians running for office. 

As we gear up for next year’s presidential election, we can expect a flurry of accusations of inappropriate touching. 

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In a criminal case of sexual assault, the jury decides the facts, but when no charges are brought, what’s “inappropriate” is decided in the court of public opinion. It is in this court that former vice president, Joe BidenJoe BidenDemocrats worry they don't have right candidate to beat Trump Trump threatening to fire Mulvaney: report Giuliani pens op-ed slamming 'unprecedented' impeachment inquiry MORE, recently came under scrutiny.    

As Biden was gaining momentum in his anticipated presidential bid, Lucy Flores, a 2014 Nevada lieutenant governor nominee, claimed that Biden inappropriately touched her shoulders when he appeared at an event in support of her candidacy. Flores also alleged that Biden kissed the back of her head.

No matter the pictures of Flores’ preferred candidate, Bernie Sanders, touching her shoulders. In her op-ed for The Cut, Flores said when Biden touched her shoulders, she froze and thought: “Earth, swallow me whole.” Flores also expressed particular offense that Biden “inhaled” her hair when he kissed the back of her head, thinking “I didn’t wash my hair today.”

I didn’t observe the reviled touch, so it’s impossible for me to assess its propriety. But if we have come to the point where a public touch on the shoulder is the stuff that can jeopardize political careers, we are in for a rocky presidential campaign in which substantive issues are relegated to second tier status and self-inflicted wounds risk leaving the Democratic nominee limping into the general election.  

This danger is particularly acute because a good portion of the Republican base is already inoculated against far worse claims that are credibly attributed to their 2020 nominee. Donald Trump’s infamous “grab them by the p----” admissions will have no effect on his voting base. But Biden’s shoulder touch sent pundits into a free fall and Biden on an apology tour. Biden's announcement Thursday, that he is joining the presidential race, will likely resuscitate this claim and bring others. 

The outline of this trend looks a lot like the same perilous false equivalency that made the scales of justice appear balanced with one side holding the way Hillary Clinton stored her emails, and the other holding Donald Trump’s bigotry, his credible accusations of sexual assault, his pathological lying, and his alarming lack of experience for the job he eventually secured. 

The core principle of the #MeToo movement sounds a legal and moral alarm that is long overdue. 

But the #MeToo mutation — which demands we assess the propriety of every physical contact by the feelings of the person touched — is wrong.  

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Living among other people brings with it physical contact. We’re tapped on the back when someone needs to pass us on the bus. We’re pulled in for an unexpected hug by a co-worker when we get a raise. We’re kissed on the cheek when introduced to our best friend’s dad at dinner. All of this physical contact may be unwanted, but social norms allow innocuous, congratulatory, and affectionate contact without being considered “inappropriate.”  

Criminal law only assigns liability when there is an intent to do something wrong. The same is true for daily contact like a shoulder touch, hug, or kiss on the cheek. If there is no sexual intent, there is no impropriety. 

Requiring express consent before every hug would make life a lot less human. People should not fear that a touch on the shoulder will get them labelled a pervert.  

In a social setting, if someone’s touch makes you uncomfortable, say so. 

If you can write an op-ed, telling hundreds of thousands of people that that you were grossed out by someone smelling your dirty hair, you’ve got what it takes to respond to a touch on the shoulder with a polite “Hey Joe, that makes me uncomfortable.” 

That should be enough to spare your shoulder the horrors of another touch: If it happens again, you’ve got a case.  

There is a difference between unwanted contact within social norms and sexual assault. 

Nothing I’ve said should be interpreted as an effort to justify unwanted contact of a sexual nature. I’ve been on the receiving end of that kind of contact, and it’s inexcusable. The first grope is not for free.

Democrats need to be careful before cannibalizing their own. Swapping “her emails” for any variation of “I was uncomfortable when he touched my shoulder” could leave all of us muttering “how the hell did this happen again?” come November 4, 2020. That would make the majority of Americans, and our foreign allies, “uncomfortable.” Very uncomfortable.

Michael J. Stern was a federal prosecutor for more than 24 years with the Department of Justice in Detroit and Los Angeles, prosecuting high-profile crimes, including conspiracy cases related to international drug trafficking and organized crime. He has since worked on the indigent defense panel for the federal courts. Follow him on Twitter @MichaelJStern1.