In lieu of an abstract, here is a brief excerpt of the content:

Chapter 9 Sex, Harm, and Impeachment Robin West Conservative and liberal legal commentators on the Clinton impeachment agreed on very little, but they agreed emphatically on the characterization of the various sexual behaviors which triggered the scandal. They all agreed that the President’s sexual relationship with Monica Lewinsky, although indecorous, indiscreet, disloyal, ill-advised, kinky, revolting, juvenile , thoughtless, immoral, and reckless, was nevertheless consensual, and therefore not criminal, and that it was welcome, and therefore not sexual harassment. They all concluded, then, and reiterated mantra-style that although it might have been a breach of private morality, this noncriminal and nontortious and non–civil rights-violating private sex should not be the basis for the impeachment of the President.1 They also agreed over the characterization of the “sex” at the heart of the charge of sexual harassment brought by Paula Jones. Conservative and liberal commentators agreed that, if true, this alleged encounter in a hotel room constituted a boorish and obnoxious although seemingly pathetic instance of indecent exposure. But at most it presented a weak case for “sexual harassment ,” involving as it did a solitary incident and only trivial, or at any rate nonactionable, damage. So here as well, they agreed that this appalling but nevertheless nontortious sexual conduct should not be the basis for the impeachment of the President.2 Rather, it was the perjurious lying about the Lewinsky affair that in turn corrupted the legal process to which the noninjured Jones was entitled—even assuming the fatal flaws in her underlying claim—that legitimately was at the heart of the drive to impeach.3 And finally, liberal and conservative lawyers seemingly agreed, after the impeachment process had wound down, that the claim of forcible, violent rape made by Juanita Broaddrick, which came to light only after the Senate failed to convict the President of a single offense, 129 was “too little, too late”: that although quite serious if true, it very possibly was not true, was at any rate unprovable, whether or not it was provable it was ancient history, and in any event, it was not a case which could ever have been prosecuted. For all these reasons it too was irrelevant to questions of fitness for office, and should not be the subject matter of impeachment proceedings.4 We were left, then, with a Greek-style chorus: the President’s persecutors and prosecutors, his defenders, and eventually Clinton himself, were singing slightly different melodies, but nonetheless doing so in harmony: it wasn’t the sex—immoral, kinky, pathetic, nondecorous, ill-advised, exploitative , and perverse but nevertheless not tortious, not provably criminal , and not a violation of anyone’s civil rights—that was or should have been at the heart of the inquiry, but the lying about it under oath.5 It was not his sex life that was under investigation, it was his contempt for the Rule of Law. It was not Clinton’s insulting, injurious, or demeaning behavior toward women—although that behavior and its endless media dissection were certainly enough to entertain, circus style, the voting and nonvoting public—but rather his insulting behavior toward the judiciary, and toward the special prosecutors appointed by the judiciary, and toward the House prosecutors, and generally toward the Rule of Law and toward the legal process, that was legitimately at the heart of a constitutional and political crisis. This conventional, choral wisdom among lawyers regarding the irrelevancy of the President’s sexual behavior, as was often remarked, was joined not just by the President’s prosecutors and defenders, but more strikingly by many (though certainly not all) feminist lawyers who took a position on the President’s impeachment over the course of the year.6 This struck many as puzzling and possibly hypocritical. Why would feminists , of all people, seek to trivialize sexual violence, sexual harassment, and sexual exploitation, after a two decades-long effort to heighten public concern, even public alarm, about the seriousness and frequency of the occurrence of these very offenses? Could it really be simply of no moment —virtually unworthy of comment—that the so-called leader of the free world admittedly exploited, most likely harassed, and quite possibly raped women, apparently as a matter of course and apparently with notable frequency, and, until the disastrous impeachment, seemingly with no consequences? In these comments, I want to make two separate observations regarding the legal consensus. First, I want to briefly note some of the reasons 130 r o b i n...

Share