Sex, Politics, and the Judiciary: We’ve Seen This Movie Before

Sex, Politics, and the Judiciary: We’ve Seen This Movie Before
By Stephen B. Presser|


A claim of sexual harassment of any kind is now the nuclear option in American politics. It was most famously (although unsuccessfully) deployed against Clarence Thomas, 27 years ago, near the end of his confirmation hearings, by a former subordinate, Anita Hill. To this day, Justice Thomas’s detractors believe Hill, but Thomas has always denied Hill’s charges; and while, in my opinion, the evidence supported Thomas’s version of the story, when it is a matter of “he said; she said,” it is usually difficult, if not impossible, to know who is telling the truth.

No doubt, women are often subject to horrible abuse by powerful men. When the abuse is recent, continuing, and well-documented—as it was and is, for example in the case of Hollywood mogul Harvey Weinstein—it is only right that the full force of the media and society, and perhaps even criminal prosecution be used to punish the perpetrator and secure justice for the victims. But it is also true that fabricated charges of sexual harassment are difficult conclusively to rebut, and it is nearly impossible to repair a falsely besmirched reputation, as we learned, for example, in the case of the Duke lacrosse players or the more recent incident involving the University of Virginia fraternity.


So what are we to think about the recent bombshell allegations against Alabama U.S. Senate candidate Judge Roy Moore? The judge—known as the Ten Commandments judge, for his defiance of the federal courts when he was a sitting Alabama jurist and ordered (wrongly, it could be argued) to remove representations of the Decalogue from his courtroom—has been accused by three women of engaging in inappropriate sexual contact. One of those women reportedly was only 14 (the age of consent in Alabama was 16 at the time), when Moore was 32, almost four decades ago. Moore flatly and vehemently denies the allegations, published in the Washington Post, a liberal newspaper that endorsed his Democratic opponent.

Moore, a Republican, had been comfortably ahead in the polls in a state that has now been very red for some time. The U.S. Senate is nearly evenly divided between the two parties, and if the Democrat defeats Moore in the election a month from now, the Democrats would have a much better chance of defeating the legislative initiatives of the Trump Administration. The stakes, in other words, could not be higher, and this is one of the most chilling examples in this country of politics as a blood sport.

If the then-single and adult Moore did the acts of which he was accused with a minor, it is not clear that his conduct was necessarily criminal (since his conduct, while clearly immoral may not have violated any statutes). But if illegal, it is also clear that he would now be immune from prosecution, since the statute of limitations for any such crimes would have passed long ago. A statute of limitations forbids the government from bringing any charges regarding acts that occurred far in the past because of the risk that memories will have lapsed, corroborating witnesses may no longer be available, and any supplemental forensic proof would likely no longer exist.


Ours is a system of jurisprudence in which the accused is presumed innocent until proven guilty; it takes proof beyond a reasonable doubt to convict one of criminal acts, and even in a civil court one cannot prevail without a preponderance of evidence. Thus, “he said, she said” matters, in court, are losers. In the court of public opinion, however, slander, calumny, and unscrupulousness can prevail, which is why, strangely enough, America’s Founders used to say there were only two ways to ruin a republic: an excess of luxury and the licentiousness of the press.

Is it licentious of the Washington Post to publish these allegations, which, even if they were true, occurred more than four decades ago? The founders probably employed the word “licentious” in its older connotation to denote behavior that went against established rules or practices, rather than the new meaning of sexually illicit or promiscuous. Even so, these days sex sells and not only is it politically potent, in our prurient age a charge such as that levied against Roy Moore is likely to be trumpeted to the four corners of our country by every conceivable media outlet.

There was a time when there were customs of restraint regarding sexual innuendo and rumor, perhaps because of the difficulties of proof and the radioactive nature of the charges. That time is now gone. Current misconduct ought to be exposed, but is it asking too much once again to secure some sort of statute of limitations or standards for sexually sensational reportage?

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Pritzker School of Law, and the author of “Law Professors: Three Centuries of Shaping American Law” (West Academic Publishers, 2017).

https://amgreatness.com/2017/11/10/sex-politics-and-the-judiciary-weve-seen-this-movie-before/