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The Senate is also on trial; the Packwood case.

The sexual misconduct case against Senator Bob Packwood is a cliche. Yet it is also unique. The case is a cliche because it tells the familiar story of an older man who takes advantage of his powerful position to impose himself on younger women. The case is unique because for the first time in history Congress seems on the verge of trying one of its own members for sex offenses. As a result, the Senate's verdict will not only resolve the charges against Packwood, it will also disclose the Senate's view of the seriousness of his conduct and, depending on its severity, sound a warning to all members of Congress and their staffs.

According to Senate ethics rules, Packwood's peers must decide whether their colleague has "violated a law" or "engaged in improper conduct which may reflect upon the Senate." It appears he did both. Twenty-three women, mostly Senate staff members or campaign workers, have told The Washington Post that Packwood, an Oregon Republican, physically assaulted them in incidents that span more than two decades. Most of the charges share a theme: Packwood, alone with a woman, often in his office, sometimes drunk, would suddenly grab her, hold her tightly, kiss her on the lips and try to put his tongue in her mouth. Some women have said that, Packwood placed his hands on their buttocks. Only vigorous protest would make him stop.

Packwood's defense has varied. Before last Election Day, when the Post asked him to address charges from six of the women, Packwood, in a tight race, denied them and offered evidence intended to discredit three of his accusers. By the time the Post reported the story after the election, it had evidence from four additional women (thirteen others would soon surface). Meanwhile, Packwood, having won a fifth term, changed his response. He now declined to dispute specific charges and expressed regret for any "discomfort or embarrassment" he might have caused. He announced that he would seek help for alcohol abuse and entered a treatment center.

Although Packwood no longer denies the charges, he has hinted that he is prepared to defend himself before the Senate Ethics Committee, which is conducting the inquiry. How will he do that? For a time, it seemed that he might question his accusers about their sexual histories, a strategy criminal defense lawyers once employed to dissuade sex-crime victims from pressing charges or to discredit them if they did. But after the Ethics Committee adopted a "shield" rule like the one state and federal judges routinely use to protect sex-crime victims from those inquiries, Packwood disavowed any such plan.

Four other possible defenses can be gleaned from Packwood's and his supporters' public statements:

* The "under the influence" defense. Packwood will say that he was not in control of, or did not fully appreciate, his conduct because he was drunk. He accepts that he has a drinking problem and is being treated.

* The "no meant no... eventually" defense. As every witness will concede, Packwood relented in the face of resistance. This proves that he is not evil, just confused. Once the rebuff penetrated his inebriation, he withdrew. The confusion won't recur. See the first defense.

* The "amnesia" defense. Hardest for Packwood to justify is his false pre-Election Day denial to the Post, coupled with an effort to discredit three women he no longer disputes. Nearly as hard to explain is his failure to seek help until his conduct became public. Packwood has offered a single incredible explanation for each instance: self-delusion. For two decades, until just after the 1992 election, he did not recognize his own behavior. "When I was originally interviewed by The Washington Post" he said last November, "I honestly believed these events had not occurred. I denied them to the Post, to my friends and to myself."

* The "already punished enough" defense. Packwood is sorry and ready to accept a mild sanction. Strategically, he may hope that a colleglal rebuke will provide cover back home with everyone but the zealots. His supporters will be able to say, "Look, he's contrite. He took his medicine. Let's not be punitive. He's good for the state."

Because these defenses aim to mitigate the degree of guilt, not the fact of it, suspense about the case will shift from what Packwood did to what the Senate will do. How seriously will it treat the charges? How seriously will it treat the defenses? How will answers to these questions affect choice of punishment?

Precedent is sparse. Charges against former Senator Brock Adams, a Washington Democrat, offer the closest comparison. Adams dropped his re-election bid in 1992 after eight women told The Seattle Times that he had engaged in conduct ranging from molestation to rape. Not only did the Senate not investigate these accusations, some senators sympathized with Adams. It was unclear whether Adams's accusers, who did not let the Times identify them, would have testified against him. By contrast, many Packwood accusers have allowed the Post to either print their names or reveal them to the Senator, insuring that the Packwood hearing won't lack for witnesses.

Despite this absence of direct precedent, the Senate will go a long way toward discharging its duty if it recognizes at the outset what the Packwood case is not about.

* The case is not about sexual harassment. Packwood has said that he "just didn't get it." That explanation, offered as a reason men treat sexual references in the workplace less seriously than women do, is no defense to the charges. Grabbing someone by surprise, pressing her against you, pushing your tongue into her mouth and putting your hands on her buttocks is not ambiguous conduct subject to different interpretations depending on a person's age and gender. Penal codes have names for these acts: They're called sexual assault in Washington, D.C., and sexual abuse in Oregon.

* The case is not about determining what happened. The kind of factual dispute that beset the Clarence Thomas confirmation hearings--did he or didn't he say those things to Anita Hill?--is largely absent here. Packwood does not deny the charges. Although details remain to be clarified, the big picture is known. Aggressive cross-examination of witnesses can therefore have only a single unacceptable goal--intimidation of other witnesses. It should be forbidden.

* The case is not about a failure of communication or a lapse in judgment. The number of incidents forecloses any claim of honest misunderstanding. Their recurrence over a twenty-year period precludes any credible claim of momentary disorientation.

* The case is not about Packwood's private life. Many of Packwood's accusers worked on his staff or in his campaigns. Others sought those positions. Lobbyists and a journalist are also among the reported victims. The Senate has a legitimate interest in misconduct that is facilitated by Packwood's status as a Senator or that occurred in Packwood's Senate office.

What remains--what the Packwood case is finally about-- are the standards of tolerable behavior in public life. Those standards will be revealed in the sanction the Senate imposes and in the explanations individual senators offer (or fail to offer) for their votes. Although no sentencing guideline exists for this sort of thing, two traditional goals of punishment are apt. They are deterrence and retribution.

The Senate's punishment must be calculated to deter members of Congress and their staffs from similar conduct. This is the time for the Senate to proclaim the gravity with which it will hereafter treat sexual assault (and, by implication, sexual harassment) in order to stop its recurrence.

While the purpose of deterrence is to discourage misconduct, the purpose of retribution is publicly to declare the community's moral condemnation of particular behavior. So this is also the time for the Senate to affirm that Packwood's undenied conduct violates standards of acceptable behavior for public officials or, in the language of the Senate's own rule, that it was "improper conduct" that does "reflect upon the Senate."

Final conclusions about punishment must await the hearing. We need to have answers to several key questions: Are there other women we have not yet heard about? Did Packwood always stop when he met resistance? Has a woman's response ever hurt or advanced her job or other professional interests? Why did Packwood deny the charges before Election Day and attempt to discredit three of his accusers? It will compound the wrong if Packwood persists in claiming that for twenty years he suffered from a selective amnesia that only lifted after last fall's election.

Absent new mitigating evidence, censure is the minimally acceptable response to Packwood's conduct. Expulsion, the most serious penalty, would be an extreme reaction because of the lack of precedent for that penalty and because it would be disproportionate to the misconduct. One argument advanced for expulsion is that Packwood lied to the Post before the election, thereby delaying the story until after his reelection. In other words, he allegedly won by fraud. The fact is, however, that Congress does not ordinarily investigate the campaign statements of its members--much less their unpublished pre-election denials to the press--with a view toward invalidating an election if a statement or denial is found to be false and to have affected the outcome of the vote.

Perhaps Congress should get into the business of reviewing campaign statements, at least in extreme cases, and expel or refuse to seat those who tell the biggest lies. Doing so, however, would raise serious legal questions. In 1967 the House refused to seat the re-elected Adam Clayton Powell because he had diverted House funds and submitted false spending reports to a House committee. The Supreme Court eventually ruled that because Powell met the Constitution's criteria for membership, the House could not exclude him. Nor is it legally clear whether Congress can first seat and then expel a sitting member for conduct that antedated his or her most recent election. In any event, Packwood's false denial to the Post would not likely be seen as sufficiently extreme to warrant either exclusion or expulsion.

Between censure and expulsion lies the Senate's authority to strip a member of seniority, a move that would deny Packwood his powerful position as the ranking Republican on the Senate Finance Committee. This is serious. punishment. It may be justified, but we cannot know until we have all the evidence and see how Packwood defends himself.

Although we cannot yet say what the precise sanction should be, we can say who must choose it. The Senate Ethics Committee must not make the final decision. The committee should develop the evidence and make its recommendation, but the full Senate must decide the proper sanction. Both goals of punishment--deterrence and retribution--require it. Only a full Senate vote can convey--and, just as important, reveal-- that 'institution's, and each senator's, ethical judgment on Packwood's conduct. And only such a vote can deliver a persuasive warning to others against behaving in the same way. Packwood is not the only senator on trial here.
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Title Annotation:Senator Bob Packwood
Author:Gillers, Stephen
Publication:The Nation
Date:Mar 29, 1993
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