Lately, a slew of sexual-misconduct accusations have been leveled against powerful men in Hollywood and the media, as well as in politics and the law. It’s the #MeToo moment.
While the alleged sexual predators in the first two categories have been paying the ultimate professional price — getting canned and banned — the situation is different when it comes to politicians and judges. Those guys have been getting away with it.
{mosads}How so? Just look to our electoral system: Punishing an elected official is extremely difficult.
The current public reckoning over sexual abuse by the rich and powerful began with Roger Ailes, Bill Cosby and Bill O’Reilly.
Then came Harvey Weinstein, Kevin Spacey and Louis C.K. Monday it was Charlie Rose.
As of Nov. 17, the running list of high-profile men accused of sexual misconduct since the beginning of October had climbed to 28, according to The New York Times. Of that number, all but three men have been fired, suspended, replaced, banned, dropped, had television or film work canceled or “postponed,” resigned or stepped away from their jobs.
What do the three others have in common? They are all government officials. Roy Moore is an Alabama judge and the Republican candidate for the U.S. Senate. Al Franken is a sitting U.S. senator. Jeff Hoover is the Republican speaker of the Kentucky House of Representatives.
We’ve seen it before. Donald Trump was elected to the most powerful office in the land despite his own vile — and recorded — boasts of sexual assault, not to mention the credible tales of his alleged predatory behavior by 15 women (some of whom were minors when the events they recount took place).
Bill Clinton finished his second term as president despite an impeachment for having sexual relations with a White House intern and lying about it.
Clarence Thomas won a lifetime appointment to the United States Supreme Court notwithstanding a law professor’s testimony under oath that he repeatedly harassed her at the Equal Employment Opportunity Commission.
The question is, what happens now? Should Franken step down? Even more urgent (given the breadth and the severity of the allegations against him), will Moore, if elected, be expelled by the Senate now that he’s been accused of sexual misconduct by eight women, including one who was a child of 14 at the time of the events she describes?
Probably not. Article I, Section 5 of the Constitution provides that the Senate has the power to “punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.”
As a practical matter, it is hard to imagine that two-thirds of the Senate would vote to expel Moore, let alone Franken. And even if they did, the loser could make a viable constitutional argument that the clause applies only to “disorderly behavior” while in office.
Keep in mind, of the 15 senators who have been expelled over the course of congressional history, one was expelled for treason. The other 14 were kicked out for supporting Confederates during the Civil War.
Franken’s incident occurred before he was elected to the Senate while he was still an entertainer. The allegations against Moore stem from his days as a district attorney; he was in his early 30s while the women accusing him were merely teens.
What about accountability through the court system? Alabama’s statute of limitations for criminal sexual offenses involving victims under the age of 16 is . . . forever. What that means is that the legislature determined — on behalf of the citizens of Alabama — that sexual assault of children is so reprehensible that offenders never get a respite from prosecution. They can be dogged for those bad acts until their dying day.
(However, in civil cases — for monetary damages brought by the victim, not a state prosecutor — the statute of limitations is a measly two years from the date of injury.)
A criminal prosecution would not necessarily stop Moore from serving in the Senate if he is duly elected, however. At the end of the day, it’s probably up to Alabama voters to decide whether Moore’s alleged crimes are “firable” offenses — not the Constitution or a state statute of limitations. Voters did just that with Donald Trump.
Yet from the point of view of good governance, an electoral solution is troubling. Elected officials should be more — not less — accountable for sexual misdeeds than the likes of Harvey Weinstein.
Senators — like presidents and judges — possess the power to make laws that affect many people, to enforce those laws against individuals, and to decide not to enforce those laws even if they are broken.
In hindsight, Moore’s own record as a judge in sexual assault cases appears to be an example of the proverbial fox guarding the henhouse. While serving as chief justice on the Alabama State Supreme Court, Moore repeatedly sided with alleged sex offenders in cases affecting children. In one case involving a 12-year old girl, he wrote in favor of a convicted rapist who sought to present “evidence of the complaining witness’s sexual history to show that [she] had a motive to lie about having been raped.”
In another case, Moore rejected a decision by eight colleagues to uphold a teenager’s conviction for sexually assaulting a younger boy at a day care center. Although “sodomy is an abhorrent crime and should be strictly punished,” he wrote in a dissenting opinion, “I am concerned the court is stepping into the shoes of the legislature in this case.”
As the Republican candidate for Alabama’s Senate seat, Moore might well be stepping into the shoes of the United States legislature very soon. Hysterical claims that criticism of Moore is a media conspiracy to take down the GOP obfuscate the very serious moral issues at stake.
For Hollywood moguls, the ends are all about profit margins, and bad publicity hurts. For government servants, making money is not the goal. In theory, the goal is serving the public’s best interest.
Having alleged sexual predators in government disserves that interest. As a matter of logic, the result of the Alabama election would appear to be a foregone conclusion: Moore is unfit to serve. But the “boss” of public servants — the voters — may refuse to see it that way. We must all live with the consequences.
Kimberly Wehle is a professor of law at the University of Baltimore School of Law, former assistant United States attorney and associate independent counsel in the Whitewater investigation and the author of the forthcoming book “The Outsourced Constitution: How Public Power in Private Hands Erodes Democracy.”