Laws that Run Amuck

As America struggles to understand the Lewinsky affair, there's a natural temptation to make sense of the drama by reducing it to a clash between individual heroes and villains. And so we have a parade of soap-opera caricatures--the overzealous and partisan prosecutor, the lusty young temptress, the bloodless wife, the philandering husband--all competing for blame in the public eye.

But the real villains in the current crisis are bad laws, rather than bad women or bad men. In particular, the explosive collision of sexual-harassment doctrine and the Independent Counsel Act, combined with the erosion of legal protections for privacy, has led to violent breaches of the boundaries between public and private life. At each stage in the endless legal battles, judges, prosecutors and lawyers have made decisions that, while technically defensible, have had brutal consequences for the parties, their innocent friends and, ultimately, the country.

Let's begin with sexual harassment. Last May, when the Supreme Court rejected President Clinton's claim that Paula Jones' sexual-harassment suit should be delayed until he left office, the Justices unanimously dismissed the President's claim that allowing the suit to proceed would generate unrelated litigation that might hamper his ability to do his job. The events of last week suggest that the court's optimism was misplaced.

Much of the problem stems from the elastic nature of sexual harassment itself, which is defined so expansively (it includes "unwanted advances" that create an "offensive working environment") that no one is quite sure what it means. After the court ordered the Jones case to proceed, President Clinton's lawyers made a plausible argument that her suit should be dismissed without a trial. Even assuming, for the sake of argument, that her allegations were true, the President's lawyers said they didn't add up to illegal harassment.

To win her case before a jury, Jones would have to prove that Clinton had conspired, in his official capacity as Governor, to deprive Jones of her constitutional rights. But it's hard to see how making a pass at someone and taking no for an answer violates the Constitution. (Jones' claims that Clinton retaliated against her for resisting his advances are far less convincing.) Nevertheless, the law required Judge Susan Webber Wright to give Jones every benefit of the doubt at the beginning of a case, and so she allowed Jones' lawyers to begin "discovery."

That's where the trouble started. Sexual-harassment suits have a tendency to spiral out of control because the relaxed rules of civil discovery permit lawyers for the plaintiff to rummage freely through the defendant's sexual history, to try to prove a pattern of "unwanted advances." In criminal trials involving serious sexual allegations, such as rape, inquiries into the sexual history of the alleged victim and the defendant are more carefully limited.