Tag Archives: Rape and Sexual Harassment

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Why Clinton Should Get Limited Immunity

by Stuart Taylor, Jr.

"The entire presidency could turn on the occurrence of a trial like this" -White House Special Counsel Lloyd Cutler, May 24, on "The MacNeil/Lehrer NewsHour."

Wow. That really lets the cat out of the bag. This stuff about "temporal immunity" (as Cutler called it) is not, at bottom, about diverting President Bill Clinton from his weighty duties or wasting his time (although Cutler stressed that, too). It’s about muffling potentially ruinous publicity.

That’s why all the president’s lawyers are cooking up arguments for putting Paula Corbin Jones’ sexual-harassment lawsuit on ice for as long as seven years.

The president is worried that the American people will turn from him in disgust if they have their noses rubbed in the spectacle of Arkansas state troopers, who were the then-governor’s bodyguards, swearing that Clinton regularly sent them out to procure women and had them arrange and conceal his extramarital encounters.

Worse, Trooper Danny Lee Ferguson, Clinton’s co-defendant, has told reporters (and might testify) that the president telephoned him several times dangling possible federal jobs, perhaps in the hope of keeping him quiet, and that Clinton operatives pressured him not to tell the truth. (The White House denies this.)

Worse still would be the spectacle of the president undergoing cross-examination about whether he had ever had Ferguson bring Paula Jones to him in a hotel room (as Ferguson and Jones have both said), and if so, for what purpose. The president has said- through his private lawyer, Robert Bennett-that he "has no recollection of ever meeting this woman." Nobody I know believes that.

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The Rule of Nonsense at Harvard Law

by Stuart Taylor, Jr.

The whiff of censorship is in the air at the Harvard Law School. Look for a push by the faculty’s left wing this fall to adopt a campus speech/"harassment" code-one of those affirmative-action models aimed at punishing insensitivity toward women and minorities while smiling on the stigmatization of white males.

And look for more demands for appointment of a faculty-student committee-selected by racial and sexual quota-to investigate the "atmosphere" for signs of a "hostile environment."

The stage has been set by the widely publicized outcry this spring over the unfortunate scribblings of two student members of the Harvard Law Review. A sampling of the reaction;

• An open letter by "15 faculty members including liberal luminary Laurence Tribe declared the article a symptom of a law-school environment "seriously hostile to women" and pervaded by "institutional sexism and misogyny," especially in its hiring practices.

• Professor Elizabeth Bartholet added that the "incident and the charges of related matters involving treatment of women … involve conduct that is arguably illegal under federal and state civil rights law governing sex discrimination and sexual harassment," and "possibly tortious."

• Professor David Kennedy pressed the law school’s administrative board to bring formal discipline against the offending students because their actions-"lie … at the point where sexual harassment verges into assault," and involve "a terrorization of women general and feminist women in particular"-even "a direct threat of personal violence."

This outpouring of learned nonsense was provoked by students engaging in what used to be called pure speech: the publication of a parody.

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On Appeal, KO the Tyson Verdict

by

Stuart Taylor, Jr.

A prediction: Mike Tyson’s rape conviction will be reversed on appeal.

It certainly should be. The trial judge denied Tyson a fair trial by unjustifiably excluding important defense evidence, including testimony that would (if true) have shown Tyson’s accuser lied when she denied necking in his limousine.

Judge Patricia Gifford may also have violated due process in using Indiana’s rape shield law to bar evidence of a possible motive for Tyson’s accuser to fabricate the rape charge.

And the judge erred egregiously in refusing to tell the jury that the prosecution must prove that Tyson did not reasonably believe that Desiree Washington had consented to sex.

These flaws in Tyson’s trial in Marion County Superior Court, in Indianapolis, were so palpable that on the merits, at least, this date-rape appeal should be like shooting fish in a barrel.

So please, when the Feb. 10 conviction is reversed, spare us another self-promoting movie a la "Reversal of Fortune" about Harvard law Professor Alan Dershowitz (Tyson’s new lawyer) brilliantly riding to the rescue.’

And conversely, if the Indiana courts prove unwilling to correct this clear injustice, let’s not blame Dershowitz. This appeal will turn on the quality of the judging, not of the lawyering.

That’s not to say Tyson is innocent, or Washington is lying. He has a long, ugly history of brutal conduct towards women, and the excluded evidence doesn’t prove he did not rape the 18-year-old beauty contestant. It just casts grave doubt on the credibility of the only witness who says he did.

Tyson is entitled to a new trial at which the jury gets to hear all the relevant evidence and gets a proper instruction on the prosecution’s burden of proving criminal intent.

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Lies, Damn Lies, and Sex Lies

by Stuart Taylor, Jr.

Bill Clinton, Clarence Thomas, and Charles Robb have more in common than ill-starred acquaintanceships with women.

Their problems raise a question gnawing at our body politic: Is it ever justifiable, or at least forgivable, for one who holds or seeks high office to lie to the public to protect himself?

My gut tells me no. In a political culture increasingly polluted by mendacity of all kinds, it’s tempting to call for a zero-tolerance attitude toward political lying.

But recent experience suggests an exception: We should not judge too harshly those who lie (or whom we suspect of lying) to deflect the ever more shameless intrusions by news media into deeply private matters.

The issues are framed by the Clinton and Thomas cases. We should, of course, be reluctant to judge either of them guilty of deception without very strong proof. But suppose we had conclusive evidence that they lied. Would that alone demonstrate unfitness for high office?

The answer, I submit, should be yes in Thomas’ case and no in Clinton’s.

If I am right, then the judgment of the nation on Thomas and the conventional wisdom on Clinton are both wrong.

Thomas was confirmed even though. I am convinced, a majority of both the Senate and the public did not really believe he had told the truth, the whole truth, and nothing but the truth in his blanket denials of Anita Hill’s charges.

While many who sided with him may have believed every word of his testimony, many others-enough, probably, to account for his margin of victory-did not. They (and I) found it difficult to believe that Hill had made up her story out of whole cloth. And therefore they found it difficult to credit Thomas’ assertions that he had never once asked Hill for a date, or mentioned pornography to her, or said any of the things she alleged.

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When to Take the Mask Away

by Stuart Taylor, Jr.

On CNN, she was a round blue blob, haloed by dark hair, hovering over a strand of pearls, expressionlessly emitting rape accusations, memory lapses, whimpers, and sobs.

On Court TV, she was a flickering checkerboard mosaic, a high-tech mask.

She had a human face and a name only for the six jurors and the handful of spectators squeezed into the tiny Palm Beach courtroom. The rest of us could catch fragments of her identity only when the TV people mistimed the annoying bleeps they used to censor out each utterance of the name of history’s most famous rape victim.

Or is she just a famous perjurer?

We couldn’t see whether her gaze was steady or shifty, whether those sobs looked as genuine as they sounded, whether the woman herself was more believable (as some who saw her say), or less, than the disembodied voice behind the blob.

Was all this really necessary, while she was face to face with her alleged rapist in the courtroom, trying to send him to prison and destroy his reputation forever? Is it still necessary, after the jury has found William Kennedy Smith not guilty in just 77 minutes’?

We all knew his name. We all saw his face. And while he was legally presumed innocent unless and until proven guilty, no one was showing much solicitude for his privacy. Wherever he goes, people will know him as the alleged Palm Beach rapist.

So why should she be shielded from public view while testifying at a public trial? Why, indeed, so many months after everyone in Palm Beach knew who she was, and after two national news organizations first used her name?

Protecting a rape complainant’s anonymity (if she wants it protected) is, in fact, very good journalistic policy, up to a point. But in my view (not my employer’s), that point was reached in this case the moment she appeared on the witness stand-or, if not then, at least by the time that the jury had found Smith innocent.

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Why Confirm an Artful Dodger?

by Stuart Taylor, Jr.

It is hard not to have doubts about the fitness of Judge Clarence Thomas for the Supreme Court after his sometimes distressingly evasive testimony to the Senate Judiciary Committee last week.

He was not credible when he told the committee that he had never discussed Roe v. Wade with anyone, at Yale Law School or since, nor developed an opinion about it.

He was unconvincing in repeatedly disavowing, rather than defending, the apparent meaning of his controversial (but perfectly defensible) past statements on the importance of "economic rights" and the like.

Thomas’ stubborn insistence that his mishmash of musings about natural law had no relevance to constitutional adjudication, for example, is hard to reconcile with his 1988 contention that "the higher-law background of the American Constitution . . . provides the only firm basis for a just, wise and constitutional decision."

He dodged too many questions about law by talking about his now famous grandfather and reciting chapters from his justly celebrated climb out of poverty and segregation.

Thomas’ efforts to depict himself as a reassuring moderate fly in the face of a paper trail that suggests a tendency to veer toward ideological extremes and an uncritical enthusiasm for conservative nostrums.

In recent years he has gone beyond expressing grave (and well-founded) doubts about the fairness and social costs of racial preferences; he has condemned wholesale virtually every Supreme Court decision going back to the 1978 Bakke case that has upheld any kind of preference for minorities or women, even as a last resort to put an end to an employer’s continuing, egregious discrimination against blacks.

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Quelling the Fires of Hate Speech

by Stuart Taylor, Jr.

If the First Amendment protects political protesters who burn the American flag, must it also protect racist hate-mongers who burn crosses and display swastikas?

That is just one of the questions floating through a major case the Supreme Court will face in its coming term. It’s a case that divides free-speech libertarians from civil-rights groups, and that puts to a severe test our commitment to what Oliver Wendell Holmes called "freedom for the thought that we hate."

The Court’s decision could shed light on the validity of the codes barring various forms of offensive speech that have been adopted by dozens of cities, states, and universities. Spawned by rising concern about outbreaks of racist harassment, the codes have in turn provoked complaints about censorship of "politically incorrect" views.

The facts the Court will confront in R.A. V. v. St. Paul, No. 90-7695, are ugly. A group of white teen-agers burned a cross on the front lawn of the only black family living on a block in St. Paul in the early morning hours of June 21, 1990.

One of the alleged cross-burners, Robert Viktora, was charged under a 1989 city ordinance making it a crime to place on private or public property a burning cross, swastika, or any other "symbol, object, appellation, characterization or graffiti … which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender."

The main issue for the Court will be Viktora’s claim that he cannot be prosecuted under the hate-speech ordinance because it is unconstitutional on its face.