Legal Analysis

Could Joe Biden’s Behavior Be Considered Criminal?

Former Vice President Joe Biden has been the subject of multiple allegations of questionable behavior involving women lately. Several women have accused the potential Democratic presidential candidate of making them feel uncomfortable as a result of inappropriate touching, but could any of it really be considered a crime? Let’s explore.

Recently, Lucy Flores claimed that she met Biden when she was running for Lieutentant Governor of Nevada in 2014. In a piece published by The Cut, Flores alleged that at one point, Biden came up behind her, put his hands on her shoulders, sniffed her hair, and then proceeded to “plant a big slow kiss” on the back of her head.

Days after that allegation came out, Amy Lappos told her own story. She claims that in 2009, Biden grabbed her by the back of the neck, leaned in, and rubbed noses with her.

“When he was pulling me in, I thought he was going to kiss me on the mouth,” Lappos said, according to the Hartford Courant.

It’s easy to view these acts, as described above, as creepy. Criminal, on the other hand, is a higher standard that depends on the laws of the states in which they allegedly took place.

Flores’ allegations are based on something she says happened in Nevada. That state doesn’t have much in terms of specific sex crimes laws. There is “sexual assault,” which is Nevada’s term for nonconsensual sexual penetration, and “open or gross lewdness,” which covers a broad range of activity that includes indecent exposure or lesser sexual acts that don’t meet the definition of sexual assault/rape.

As Flores herself said, “It wasn’t sexual,” so these laws wouldn’t apply. What about others? Nevada is pretty strict when it comes to standard assault or battery. While other states have statutes that cover unwanted touching in general, Nevada battery is defined as “any willful and unlawful use of force or violence upon the person of another.”

Assault in Nevada is defined as either “[u]nlawfully attempting to use physical force against another person” or “[i]ntentionally placing another person in reasonable apprehension of immediate bodily harm.”

Connecticut, where Lappos said Biden rubbed noses with her, has more specific offenses for varying degrees of sexual assault, but they all deal with sexual contact; rubbing someone’s nose with your nose doesn’t fit the bill. Regular assault in the third degree requires some sort of physical injury, so that doesn’t work either.

Connecticut’s statute for disorderly conduct, however, might cover something like this. It says:

A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior; or (2) by offensive or disorderly conduct, annoys or interferes with another person[.]

See that subsection marked (2). It means that even if Biden didn’t mean anything by it, if he was reckless in his behavior and his conduct is deemed offensive, he could theoretically face trouble if it annoyed or interfered with another person. Lappos certainly seems to be annoyed, but it would ultimately be up to police to determine whether it warranted an arrest, and up to prosecutors to decide if the case is worth filing charges.

Now, besides these allegations Biden has faced backlash over photographs of him with women such as Stephanie Carter, wife of former Secretary of Defense Ash Carter. Biden can be seen behind Mrs. Carter with his hands on her shoulders, possibly whispering in her ear. These instances appear to be less substantial than the others, given the reaction to the controversy from those closest to it.

Mrs. Carter herself wrote in a piece on Medium.com that this is a non-story, and that it was a moment between friends.

“The Joe Biden in my picture is a close friend helping someone get through a big day, for which I will always be grateful,” Carter wrote.

Another image, showing Biden with Maggie Coons, daughter of Sen. Chris Coons, (D-Delaware), where he is grabbing her by the arm and leaning in to talk to her, as she appears to be uncomfortable. Sen. Coons denied that his daughter was upset about it.

“He was leaning forward and whispering some encouragement to her about how when he was sworn in and his own daughter Ashley was 13 and she felt awkward and uncomfortable and he was encouraging her about how to get through a day with lots of cameras and lots of folks watching,” Sen. Coons explained.

Even if Biden’s acts didn’t rise to the level of criminal activity, any woman who claims that Biden touched them in a way that was offensive to her could probably sue him with a claim of battery. Under tort law, battery is generally considered to be a harmful or offensive touching. The “or” there means that the touching doesn’t have to cause physical damage as long as it was offensive.

Biden’s touchy-feely behavior hasn’t exactly been a secret, as he’s developed a reputation for maybe getting a little too familiar with women. Until now, it’s been treated with a general eyeroll, as a habit that wasn’t quite condoned so much as shrugged off with a “That’s Joe” kind of attitude. Now that he may be a viable candidate for the nation’s highest office, however, it’s being taken much more seriously.

[Image via Scott Olson/Getty Images]

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