Inquiring minds

November 04, 1997|By Ellen Goodman

BOSTON -- Isn't this where we came in? With Gennifer Flowers? With the first of the so-called bimbos erupting like Jills-in-the-box from Bill Clinton's past?

Now Ms. Flowers has been subpoenaed for the pretrial depositions in Paula Jones' sexual harassment case. She is about to be the centerpiece in what they call the discovery process, as if the lawyers in this case were mini-Magellans rather than National Enquirers.

The Jones team already has questioned childhood sweetie Dolly Kyle Browning. They've also asked three state troopers for records involving anyone Mr. Clinton made a move on. After that it's Ms. Flowers turn to bloom.

Remember when Mr. Clinton's lawyer Bob Bennett threatened to delve into Paula's past? Remember his warning, ''It's a two-way street''? Remember his repentance: ''We have no intention of dragging out Paula Jones' sex life''?

One-way street

Now the testimony in this unseemly case is beginning to look like it's racing one way: right down Bill Clinton's memory lane. With all the legal rules shifting, it's easier to cruise through his past than through hers.

Not that long ago, any woman who had been raped was likely to have her sexual history, her style of life or dress, paraded out as evidence that she was asking for it. The woman was portrayed as either a ''nut'' or a "slut," but either way the victim got blamed.

The rape shield law was passed to prevent her past or ''predisposition'' from being used against her. Then, in 1994, Congress extended the shield to civil cases, so that a woman suing a rapist for damages would have the same protection. Well, it turns out, this law -- which Mr. Clinton signed -- applies as well to an alleged victim of sexual misconduct. Like Paula Jones.

At the same time, Congress also passed and the president also signed another new law. This one said that the history of an accused sexual offender can be admitted as evidence.

Congress was thinking of nailing rapists who had committed prior sexual assaults or child molestation. But as Jane Aiken, law professor at Washington University in St. Louis, analyzes it, the lawyers for alleged victims got a green light. They can search an accused assailant's past for other examples of ''sexual assault.'' And the definition of sexual assault may be wide enough to include such things as unwanted advances.

In theory, this change in the direction of our societal street signs isn't all bad. Research shows that in routine cases, juries still ask what she did to invite it and how much harm a conviction will cause him.

But like Ms. Aiken, many worry that this switch can go too far. In this most high-profile case, Ms. Jones' lawyers are counting on it.

Last Tuesday, they asked the court to drop the charges that the ''other defendant,'' state trooper Danny Ferguson, had defamed Ms. Jones' reputation. This will make it harder for the president's proxy to go searching through Ms. Jones' dating history to expose her reputation in its pre-Bill state. But Paula's men can dig up every patch of Flowers on the pretense that they are rooting about for a history of sexual misconduct.

In short, Ms. Jones now seems to have more legal fishing rights to Mr. Clinton's sexual past than he has to hers. Does this sound unfair? You bet. But it's more complicated than that.

The humiliation stage

At this pretrial stage, lawyers often strut their stuff, trying to show how they can humiliate their opponents. A judge allows more leeway now than in a trial.

The real test of evidence should be its relevance. Paula Jones' history of consensual sex or even topless photos have nothing to do with whether she was harassed. Bill Clinton's history of consensual sex with Gennifer or Dolly or whomever has nothing to do with whether he was a harasser.

In the shifting direction signals, we still need a stop sign. As Ms. Aiken says, ''We're trying to end the use of sexual character evidence and get at a real problem, the abuse of sexual power. Just because somebody engaged in sex activity in the past tells us nothing. The real question is whether they abused their power.''

In the end, Ms. Jones' claim of sexual harassment makes a weak legal case. But for the moment, in the game of mutual public humiliation, Ms. Jones is one up.

Ellen Goodman is a syndicated columnist.

Pub Date: 11/04/97

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