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I Pry

Paula Jones and the end of privacy.

At every stage in her ridiculous lawsuit against Bill Clinton, Paula Jones has deftly adjusted her allegations to take advantage of the peculiarities of sexual harassment law itself. When she filed her complaint in 1994, for example, Jones claimed unconvincingly that her career had suffered because she spurned Clinton's alleged advance, although she hadn't mentioned anything about retaliation in her initial interviews or press conference. Then, last week, Jones changed her story yet again. In parts of her October deposition that Clinton's lawyers made public on February 17, Jones alleged for the first time that Clinton "was trying to touch my pelvic area... I f I hadn't stopped him, he would have." In her initial complaint, she had claimed less melodramatically that Clinton "put his hand on Plaintiff's leg and started sliding it toward the hem of Plaintiff's culottes."

What can explain Jones's latest embellishment? Part of the answer may have to do with her lawyers' attempt to take advantage of an amendment to the Federal Rules of Evidence, adopted by Congress as part of the Violence Against Women Act and signed by President Clinton in 1994. A new rule of evidence, Rule 415, says that, in civil cases involving allegations of " sexual assault," evidence of the accused "party's commission of another offense or offenses of sexual assault ... is admissible." With the claim that Clinton tried to touch Jones's genitals, Jones's lawyers are clearly trying to satisfy the federal definition of attempted sexual assault, which includes attempted "contact, without consent, between any part of the defendant's body ... and the genitals ... of another person." John Whitehead, the president of the Rutherford Institute, which is funding Jones's suit, floated the new strategy in The New York Times on February 18. "This is not just some benign employer making a minor sexual advance," said Whitehead. "It's a sexual assault by someone we allege to be a sexual predator."

By alleging that Clinton didn't simply harass Jones, but tried to sexually assault her as well, Jones's lawyers are laying the groundwork for an argument that the judge in the case, Susan Webber Wright, violated Rule 415 when she excluded evidence of Clinton's alleged indiscretions with Monica Lewinsky. If the jury ultimately rejects Jones's claim that she suffered from sex discrimination in the workplace (as any sane jury should), her lawyers seem prepared to brandish Rule 415 as the main weapon in their effort to have the verdict set aside on appeal.

Jones's lawyers also tipped their hand on February 5 in their response to Clinton's motion for an expedited trial. Calling Judge Wright's decision to exclude evidence of the Lewinsky affair an "error," Jones's lawyers said they had "lost extremely valuable and material evidence concerning the Monica Lewinsky-Linda Tripp-Defendant Clinton-Vernon Jordan situation directly relevant to: Defendant Clinton's ... potential sexual assaults absolutely admissible under Federal Rules of Evidence 413 and 415" (my italics). If Jones ultimately loses her case, her lawyers threatened, she would move "to set aside the judgment and ask for a new trial because of newly discovered evidence and the fraud, misrepresentation, and other misconduct of Defendant Clinton ... in relation to the Monica evidence."

In language that reads like a parody of The American Spectator, Jones's lawyers concluded on the following note: "If the allegations inherent in the Monica evidence are true, then Defendant Clinton: sexually assaulted, sexually harassed, and/or committed oral sex with a 21-year-old White House intern in or about the Oval Office and rewarded her with two paying federal jobs... Defendant Clinton and his minions should not be permitted to cloak these asserted nefarious crimes in the mantle of the office of the president' in their desperate attempt to avoid personal, individual liability. "

Aside from the implausible claim that Clinton sexually assaulted Monica Lewinsky, there's just one problem with Jones's creative argument that Judge Wright may have committed reversible error under the new federal rules by excluding evidence of the Lewinsky affair: Rule 415 doesn't apply in the Paula Jones case because the amendments to the Federal Rules of Evidence apply only to "proceedings commenced on or after" the day the new federal rules went into effect. The Violence Against Women Act was adopted on September 13, 1994, and the new rules of evidence were then sent to the Judicial Conference, an organization of federal judges, which objected strenuously that the new rules "would permit the introduction of unreliable but highly prejudicial evidence and would complicate trials by causing minitrials of other alleged wrongs." Congress, alas, ignored the judges' prescient warnings, and the new rules took effect on July 1, 1994. Because Paula Jones filed her suit in May 1994, she can't take advantage of the new federal rules after all. Drinks on the house at Skadden, Arps.

Nevertheless, although Jones's lawyers may have miscalculated in their efforts to argue a case of sexual assault, it's worth trying to imagine how the Jones case might have come out under the new, rather than the old, federal rules of evidence. Before the 1970s, the traditional presumption in civil and criminal trials was that "evidence of other crimes, wrongs, or acts is not admissible" to prove the bad character of the accused or of the accuser. The exception to this rule was in rape cases, where lawyers were permitted to inquire into the sexual history of the alleged victim in order to cast light on the question of consent.

But the traditional concern for the rights of the accused over those of the accuser has since been turned on its head. In 1980, at the urging of Representative Elizabeth Holtzman, Congress adopted a rape-shield amendment to the rules of evidence, Rule 412, which excludes "evidence offered to prove that any alleged victim engaged in other sexual behavior." The rule was further toughened in the Violence Against Women Act in 1994, and Paula Jones's lawyers are planning to invoke it to prevent Robert Bennett, the president's attorney, from embarrassing her at trial by disclosing lurid details about her past. At the same time, Congress adopted rules 413, 414, and 415, which some commentators have construed to require the admission of evidence about other sexual assaults committed by the accused, regardless of whether or not their probative value is outweighed by their prejudicial effect--the traditional test by which judges decide whether or not evidence should be admitted. (Three appellate courts, however, have held that the new rules don't override the traditional relevance test.)

Let's put ourselves in Judge Wright's shoes in the Paula Jones case and try to decide whether or not to allow evidence of the Lewinsky dalliance under the old and new rules of evidence. Under the old rules, Judge Wright should almost certainly decide that the "probative value" of the Monica evidence-- that is, its relevance in proving Paula Jones's allegations--is " substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." In other words, the fact that Clinton may have had an entirely consensual affair with a young intern, begun after weeks or months of flirtation, casts very little light on whether or not he was likely to make a pass at Jones minutes after meeting her and then retaliate against her for rejecting his advances.

Imagine that Bill Clinton, like George Bush, was alleged to have had only one or two affairs during the course of a long marriage. Would it be fair to admit evidence of these consensual infidelities in an unrelated sexual harassment suit? The traditional legal answer is that no, it wouldn't be fair. The infidelities would be excluded on the grounds that they are highly embarrassing to Clinton and likely to inflame a jury while telling us almost nothing about Clinton's conduct toward women in the workplace, who may have rebuffed his advances.

Under the new rules, by contrast, Judge Wright would also have a hard time prohibiting Jones's lawyers from asking the prurient and inappropriate question that they posed to Clinton in their latest interrogatories: "Please state the name, address, and telephone number of each and every individual (other than Hillary Rodham Clinton) with whom you had sexual relations when you held any of the following positions: (a) Attorney General of the state of Arkansas; (b) Governor of the state of Arkansas; (c) President of the United States." This leering fishing expedition intrudes on the very core of the president's privacy. But it might have to be allowed, under the new rules, on the theory that some of the sexual contacts have been unwanted, which would convert them into sexual assaults. And, as long as there's evidence of attempted sexual assault, the new rules might require the evidence to be admitted, even if its relevance to the Jones allegations were difficult to discern.

In a recent article in The Harvard Law Review, Katharine Baker of the Chicago-Kent Law School argues that amendments to the federal rules of evidence contained in the Violence Against Women Act are, in fact, anti- feminist, because they are based on a false view of rape as a pathological activity, carried out by a small, mentally ill group of repeat offenders, rather than something that even otherwise healthy men may commit once in their lives. Baker thinks the new rules reflect a false view of sexual harassment, too, as something committed by lotharios rather than misogynists. In fact, Baker argues, Clinton's kindness to Gennifer Flowers and Monica Lewinsky, who appear to have reciprocated his advances, casts very little light on his treatment of Paula Jones. "No one thinks Clinton goes around harassing Donna Shalala," says Baker. "He's not someone who can't deal with women in a professional context and has to bring in porno magazines to work."

Despite their best efforts, even Jones's lawyers couldn't find evidence to support their mustache-twirling theory that Clinton rewarded those who succumbed to his advances and punished those who did not. Kathleen Willey seems to have rebuffed Clinton, but that didn't deter him from giving her the help she wanted. In any event, the relevant question under any defensible definition of sexual harassment is whether an employer systematically discriminates against the women he directly supervises in the workplace, not whether he occasionally makes passes at isolated women who are nominally (but not actually) under his control and then retreats with good grace when his gropings are rejected.

Of course, neither President Clinton nor his feminist defenders would have standing to protest the injustices wrought by the Violence Against Women Act. It was Clinton's cool-eyed alliance with the National Organization for Women on the one hand, and Representative Susan Molinari on the other, which led him to sign the Violence Against Women Act in exchange for Republican support on the budget in 1994. But, although Clinton would deserve whatever he gets at the hands of harassment laws he so promiscuously expanded, other citizens deserve the traditional due process guarantees. The new federal rules eliminate procedural protections for accused harassers at the moment those protections are most urgently needed. Now that Congress and the president are beginning to feel the sting of their own illiberal handiwork, perhaps they will reconsider what they have wrought.