There Is No “Gray Area” When It Comes to Consent

The internet is awash in images of former Vice-President Joe Biden with his hands on the shoulders and faces of women and girls. Some are close friends, like Hillary Clinton. Others are not, like 13-year-old Maggie Coons, daughter of Sen. Chris Coons (D-DE). So when Nevada politician Lucy Flores told the story of Biden putting his hands on her shoulders, smelling her hair, and kissing her head, it was easy to visualize. Amy Lappos recounted a similar story to the Hartford Courant a few days later of an encounter with Biden in 2009 when she was a congressional aide. There are articles going back years reference “Bidening,” among them “9 Times Joe Biden Creepily Whispered in Women’s Ears”; The Nation’s national affairs correspondent Joan Walsh stating, “The Democratic primary doesn’t need Joe Biden”; and New York magazine’s feminist columnist Rebecca Traister querying whether Joe Biden is getting a gender advantage. Even Samantha Bee took on Biden, with her funny/not-so-funny mockumentary sketch of his handsiness on The Daily Show several years ago, with the spectacular title, “The Audacity of Grope,” compiled from file footage of Biden’s years of touching women and girls on-camera.

But while some have characterized these latest revelations as Biden’s #MeToo moment, others, like Senate press secretary Elizabeth Alexander, have shrugged off Biden’s behavior with an op-ed defending him. Another op-ed suggests we can believe both Flores and Biden and just move on as if nothing ever happened, while others believe she is trying to manipulate the polls to favor Bernie Sanders, whom she supported in the 2016 primary, forcing Flores to repeatedly insist on Twitter that she hasn’t endorsed anyone, and reminding people that Biden hasn’t yet announced his candidacy.

Most concerning, though, are those asserting what one female colleague said to me: “When Trump stands trial for sexual assault and Kavanaugh gets kicked off the Supreme Court, then we can talk about a little affectionate hugging and kissing by a guy we know is a good guy. It’s not like [Flores] is accusing him of rape.”

Is this the new litmus test for sexual misconduct? Do we give a pass to anything that doesn’t rise to the level of actual assault, attempted rape, or rape? Do we give a pass only to someone on our side of the aisle, since the Republicans have failed to police and punish their own—they are the party who ran a pedophile for a Senate seat, after all. If the man being called out is a Democrat like Biden or former senator Al Franken, women should be willing to take one for the team because these men have done other good things for women?

In a Facebook post, Lappos said, “Shame on some of the women here excusing this as boys being boys or it’s not as bad as Trump. I can speak from experience when I say it’s an incredibly uncomfortable situation and not at all acceptable. We need to hold our men to the same standards we hold all men.”

Flores has been quite clear that Biden wasn’t attempting to assault her. Nor was she claiming to know a dangerous side of Biden that no one else knew, like Dr. Christine Blasey Ford sharing her story of attempted rape and suffocation by U.S. Supreme Court Justice Brett Kavanaugh.

But does that distinction make Flores’s story any less a critical issue for our time? The problem of Biden and all the other men like him reveals another layer of the #MeToo movement. Yet because sexual assault is so prevalent and women are literally being kidnapped and murdered like Samantha Josephson or raped and killed while jogging, like Carolina Cano, we never seem to get to sexual harassment and the grey area of misconduct that doesn’t quite rise to the level of actual assault.

It’s been 28 years since Anita Hill took on Clarence Thomas during his confirmation hearings for the U.S. Supreme Court, highlighting sexual harassment in the workplace. Re-reading Hill’s testimony and how she was spoken to and treated is instructive. It is also shocking to recall that Thomas never grabbed nor groped nor kissed nor fondled Hill. And yet the testimony is searing, compelling and unquestionably disqualifying for Thomas.

Is Biden’s behavior disqualifying for him? Or have #MeToo revelations of truly harrowing instances of assault and rape set the bar so high that “merely” touching women and girls without their consent seems tame and possibly beside the point—except for the women to whom it is happening, of course.

Flores is talking—as Hill did 28 years earlier—about a layer of misconduct that women are expected to accept as benign, even if it feels uncomfortable, distressing, or even traumatizing. Flores is articulating what we’ve all witnessed from Biden, that has been characterized for years as “Biden being Biden,” and it feels really humiliating when it’s happening to you and it changes your perception of the person doing it.

And Biden has been Bidening for decades. So have millions of other men—touching women casually without consent. Giving unsolicited shoulder rubs. Hugs. Intimate whispers. Even kisses. In the workplace, in work-related settings like the one between Biden and Flores, at schools and colleges. In the doctor’s office. We’ve all witnessed it. Many of us have experienced it.

One woman told me, “Every interaction with an unknown man is a minefield. Be friendly, but not too friendly, smile, but not too much, don’t flirt, but don’t be ‘cold,’ seriously—the dance we do to get out of these situations safely.” Another explained, “Shelving books at my library, at least once a day some asshole brushes past my ass or touches me. Men are always trying to touch me in normal conversation, too. And that’s just one aspect of the shit I deal with at my workplace.”

Sexual harassment doesn’t rise to the level of sexual assault in most instances, and it’s important that we distinguish the nuance. But sexual harassment still evokes feelings of discomfort, humiliation and shame in its victims. Flores described her encounter with Biden as just that: “I felt two hands on my shoulders. I froze. ‘Why is the vice-president of the United States touching me?’ I felt him get closer to me from behind. He leaned further in and inhaled my hair. I was mortified. He proceeded to plant a big slow kiss on the back of my head. My brain couldn’t process what was happening. I was embarrassed. I was shocked. I was confused …  I couldn’t move and I couldn’t say anything. I wanted nothing more than to get Biden away from me.”

More even than the kiss, the smelling of the hair seems so deeply intimate, something only a lover would do—not a complete stranger, and certainly not the vice-president. When Flores said she wanted nothing more than to get Biden away from her, she spoke for generations of women who have been touched by men without their consent. Men they knew, worked for, maybe even liked and/or admired, but nevertheless men they did not want to be touched by then or ever.

Most of us learn about consent early in childhood, when we are taught to “keep your hands to yourself!” as we teach our children boundaries of personal space and autonomy.

But where does the line on consent fall when men can and do touch women whenever and wherever they want? The president of the United States argued that no such boundaries exist for men like himself and that women allow such touching if you’re a celebrity. In Donald Trump’s now infamous Access Hollywood tape he alleged he could touch any woman he wanted, even grab her by her genitals, and have it be accepted. Yet the women who have accused Trump of touching and/or kissing them inappropriately would argue against that assertion. Wouldn’t most of us?

Hill said after the Brett Kavanaugh confirmation hearings that Trump had created an atmosphere of acceptance for sexual harassment that had bled into the courts. “The president compromises the presidency,” Hill said about sexual misconduct. “The legislative bodies that support him or don’t call him out are enabling him to make comments that suggest he believes that he is entitled to be abusive to whomever he wants. And we should have known that eventually it would get to the courts, too. How it compromises the legal system—as a lawyer, that is so deeply troubling to me.”

Just as Hill herself introduced the country to the concept of sexual harassment, the #MeToo movement has been jettisoned to the forefront of our national discourse. Shocking details of the sexual predation by Hollywood mogul Harvey Weinstein, comedian Bill Cosby, CBS CEO Les Moonves, director Bryan Singer, and singer R. Kelly all suggest that time really is up on the celebrity casting couch. But is time up on Democratic men, your boss, your thesis adviser, or your own “Uncle Joe”? The Biden-Flores account, and before it, the Al Franken story—all suggest we haven’t gotten started on any of this.

Sen. Kirsten Gillibrand (D-NY), one of the most progressive members of the Senate and a long-time champion of sexual assault victims, has been the target of fans of former Sen. Al Franken, because she was the first of 32 Democratic senators to call for his resignation after he was accused by eight women of sexual misconduct. Richard Painter, a former Bush White House counsel, even switched parties to run for Franken’s old Senate seat against Franken’s Democratic replacement, Tina Smith, on a Franken-should-never-have-been-forced-out message.

But who can set an example when there are so many excuses being given for this behavior, many by other women? Karen Tumulty referred to the “mob” going after Biden and gave him a pass for his previous touching while saying he should stop it, now. Tumulty was deeply concerned that frivolous stories of mere kisses and nose-rubbing would discredit other allegations of a more serious nature.

Therein lies the problem. Characterizing pushing back against patriarchal assumptions and presumptions about how women are expected to grant access to their bodies is not a mob mentality. It’s the most basic self-care, it’s feminism 101 and it’s pretty late in coming, this being 2019 and not 1919. And yet the narrative persists that there is something charmingly avuncular about Biden that is somehow outside the sphere of #MeToo. Mika Brzezinski said on Morning Joe, “I am sure that somebody can misconstrue something he’s done. But as much as I can know what’s in anyone’s heart, I don’t think there is bad intent on his part at all.”

The constant micro- and even macro-aggression of always being available to men for unexpected and unwanted touching creates an atmosphere of tension for women in nearly every setting. The apologies for Biden and Franken by so many women and the outrage from men over “just a little kiss” speaks to how deeply accepted such behavior is. Women are expected to not just accept it, but even embrace it as “just Biden being Biden” or the equivalent in their own lives of a boss who rubs the shoulders of his women workers and whispers in their ears, a professor who does the same or a doctor who always greets patients with a hug. In The New Yorker in December 2017, Masha Gessen argued that the forced resignation of Franken was nothing more than sex policing and had nothing to do with power. Gessen compared Franken’s ouster to bakers denying same-sex couples wedding cakes.

It is not sex policing and it has everything to do with power. Anita Hill was referred to as a prude by some, alleged to have been a lesbian by Sen. Alan Simpson with his veiled reference to her “proclivities” and tagged as “a little bit nutty and a little bit slutty” by then-conservative journalist David Brock, who later apologized for his characterizations of Hill.

In fact, women who “tell” on men are often accused of prudery. Yet if a man came up behind a woman in a supermarket, laundromat, or subway and performed the same action as Biden did to Flores, it wouldn’t be considered benign, but threatening, a precursor perhaps to a worse assault. As Margaret Atwood famously wrote, “Men are afraid women will laugh at them, women are afraid men will kill them.”

No one has ever accused Biden of sexual assault. And the things he does likely don’t rise to that level. But their inappropriateness cannot and should not be ignored nor tolerated. Just because women don’t object when they have witnessed this behavior doesn’t mean they advocate it.

And we don’t have to coddle men who are serial harassers. We don’t have to give these men permission to touch women just because some other men are far worse. Just because it isn’t rape, doesn’t mean it isn’t wrong.