Accusers not required to prove their charges Hearing's procedure differs from a trial

October 11, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The Senate Judiciary Committee's emotion-charged hearing on accusations of sexual misconduct by Supreme Court nominee Clarence Thomas proceeds today on one clear basis: His accusers will not have to prove he broke the law.

Potentially, the role of Anita F. Hill and Angela Wright may be even more limited, although this is more doubtful. They may not even have to prove there was sexual misconduct.

All they have to do, analysts of the process suggest, is to say enough -- on their own or in answer to senators' questions -- to create doubts in senators' minds about Judge Thomas' fitness to be a member of the Supreme Court.

That, experts in sexual harassment law say, is considerably less than they would have to do if their cases against him were legal ones.

The difference can be traced to a simple fact: This is not a case before a court or government agency with the power to decide whether Ms. Hill's or Ms. Wright's employment rights were violated when they worked for Judge Thomas in the government a decade ago.

This is, instead, a matter for Congress: mostly political, partly legislative, but in no sense judicial. Sen. Orrin G. Hatch, R-Utah, who is to be one of the lead questioners on the Judiciary Committee at hearings starting today, remarked yesterday:

"This is not a trial, and the only rule is that there will be an attempt by the chairman to keep this matter within the bounds of the allegations that have been made. . . . That's the only rule."

There is very little chance, according to legal experts, that when the hearing ends today or tomorrow, it will be crystal clear whether Judge Thomas did or did not sexually harass Ms. Hill and Ms. Wright -- no verdict, no formal judgment.

What there is likely to be, the experts say, is a collection of impressions 100 senators will have to weigh individually, using whatever values or decision-making processes they wish to employ.

The Judiciary Committee hearings are not geared to producing a definite outcome. Committee leaders are said to be going to unusual lengths to make this official investigation dignified -- even, in some sense, judicious. But civility and decorum would not change its basic character: a non-legal proceeding.

Some of Judge Thomas' supporters have complained that Ms. Hill, the University of Oklahoma law professor who once worked as a legal aide to Mr. Thomas, has never pressed her grievance in a formal way, so he has had no opportunity to mount a complete, point-by-point defense, as he would have had if she had charged him with breaking the law.

When sexual harassment is charged under the 1964 Civil Rights Act's Title VII ban on sex bias in the workplace, the person complaining is obliged -- throughout -- to carry the burden of proof. At the EEOC, which handles some of those complaints, or at a state human rights agency, which also can handle them, the individual making the charge must offer enough evidence to keep the case alive.

That evidence does not have to prove that discrimination did occur; it need only show that there is good reason to think it did.

If the agency is then satisfied that discrimination probably did occur, it may itself sue the charged person. If it believes there was no discrimination, it can then allow the complaining individual to go to court.

In court, the individual who charged harassment must prove -- by "a preponderance of the evidence" -- that it happened, and that it was intentional. The charged individual, by then fully aware of all of the specifics, gets a chance to argue the facts -- say, by contending that the incident never occurred.

Or, the charged individual could concede that something did happen factually, but then suggest that it did not amount to sexual harassment in a legal sense -- either because the conduct was "not unwelcome," or because the conduct did not create an atmosphere of sexual hostility.

In the Judiciary Committee hearings, there is no burden of proof, at least in the legal sense. Ms. Hill and Ms. Wright basically must withstand challenges to their version of the facts and their interpretations of what they mean.

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