Allan Favish is a Los Angeles-based attorney whose focus is on General Insurance Defense and Litigation Insurance Coverage/Reinsurance & Bad Faith Litigation. A UCLA graduate, he received his J.D. at Hastings College of Law in 1981.
[This article was published in the Daily Journal of Los Angeles on April 3, 1998, at p. 6. A very shortened version of this article was published as a letter to the editor in the Los Angeles Daily News on April 5, 1998, in the Viewpoint section.]
Paula Jones' lawsuit against President Bill Clinton included claims under federal civil rights laws and a claim under Arkansas tort law for intentional infliction of emotional distress. This article only discusses the latter claim.
The legal viability of Judge Susan Weber Wright's opinion that Paula Jones' claim for intentional infliction of emotional distress should not be heard by a jury rests on her statement that "the conduct as alleged by plaintiff describes a mere sexual proposition or encounter, albeit an odious one, that was relatively brief in duration, did not involve any coercion or threats of reprisal, and was abandoned as soon as plaintiff made clear that the advance was not welcome."
The conduct alleged by Jones, accepted as true for purposes of Wright's ruling, includes the following: Governor Clinton had a state trooper escort Jones to a hotel suite; the trooper told Jones he had a gun when asked; after a few minutes of small talk in the hotel room alone with Clinton, he asked her about her job and mentioned that Dave Harrington, Jones' ultimate superior within the state agency at which she worked, and a Clinton appointee, was his good friend.
Clinton then unexpectedly reached over to Jones, took her hand, and pulled her toward him, so that their bodies were close to each other; she removed her hand from his and retreated, but Clinton approached her again and, while saying, "I love the way your hair flows down your back" and "I love your curves," put his hand on her leg, started sliding it toward her pelvic area, and bent down to attempt to kiss her on the neck, all without her consent.
Jones then exclaimed, "What are you doing?," told Clinton that she was "not that kind of girl," and walked away from him. Jones was extremely upset and confused and, not knowing what to do, attempted to distract Clinton by chatting about his wife. Jones then sat at the end of the sofa nearest the door, but Clinton approached the sofa and, as he sat down, lowered his trousers and underwear, exposed his penis (which was erect) and told Jones to "kiss it." Jones was horrified by this and she jumped up from the couch and told Clinton that she had to go. Clinton, while fondling his penis, said, "Well, I don't want to make you do anything you don't want to do," and then pulled up his pants and said, "If you get in trouble for leaving work, have Dave call me immediately and I'll take care of it."
As Jones left the room (the door of which was not locked), Clinton detained her momentarily, looked sternly at her, and said, "You are smart. Let's keep this between ourselves."
Clinton's advances to her were unwelcome, she never said or did anything to suggest to him that she was willing to have sex with him, and during the time they were together in the hotel suite, she resisted his advances although she was stunned by them and intimidated by who he was.
When Clinton referred to Dave Harrington, Jones understood that Clinton was telling her that he had control over Mr. Harrington and over her job, and that he was willing to use that power. From that point on, she was very fearful that her refusal to submit to Clinton's advances could damage her career and even jeopardize her employment.
When she left the hotel suite she was in shock and upset but tried to maintain her composure. Jones went back to her job downstairs at the hotel with her co-worker who reported that Jones was shaking and embarrassed. Later that day Jones went to the workplace of a friend and told her of the incident as well. The friend testified that Jones was upset and crying. Within the next two days Jones told one of her sisters, who testified that Jones was "bawling" and "squalling," and that she appeared scared, embarrassed, and ashamed.
Jones' friend testified that she encouraged Jones to report the incident to her boss or to the police, but that Jones declined, pointing out that her boss was friends with Clinton and that the police were the ones who took her to the hotel suite. Her friend further testified that Jones stated she did not want her fiancé to know of the incident and that she "just wanted this thing to go away." What Clinton and the trooper had said and done made Jones afraid to file charges.
A few weeks later, the trooper told Jones that Mrs. Clinton was out of town often and that Clinton wanted her phone number and wanted to see her. Jones refused to provide her phone number to the trooper. The trooper also asked her how her fiancé, Steve, was doing, even though she had never told the trooper or Clinton his name, and that this frightened her.
Jones continued to work at the state agency even though she was in constant fear that Clinton would retaliate against her because she had refused to have sex with him. She was treated very rudely by certain superiors in her agency, including her direct supervisor, and this rude treatment had not happened prior to her encounter with Clinton.
Again, all of these assertions have not been established as facts in a court of law; however, they are assumed to be true for purposes of ruling on Clinton's summary judgment motion.
Wright is incorrect to say that no jury could ever properly conclude that Clinton's saying that he knew Jones' boss and that she should not talk about what happened, "did not involve any coercion or threats of reprisal." A jury could easily find that Clinton's alleged conduct could reasonably have been interpreted by Jones as coercive and threatening.
Wright is incorrect to say that this was "a mere sexual proposition or encounter, albeit an odious one..." "Mere" is defined as "being nothing more than what is specified" and "small" or "slight."
Wright's use of the word "mere" might be an accurate description if all Clinton allegedly did was the verbal invitation. But the verbal invitation plus the placing of his hand on her leg and the exposure of his erect penis coupled with the statement about her boss being his friend and his request for her to remain silent about something that she would have a natural need to discuss with friends and loved ones, is something a jury could easily find to be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society. Wright failed to cite any case that compelled her to characterize Clinton's alleged conduct the way she did.
Wright is incorrect to say that Clinton's conduct "was abandoned as soon as plaintiff made clear that the advance was not welcome." After Jones walked away from Clinton, rejecting his advance, including his touching her leg as he slid his hand toward her pelvic area, he allegedly exposed his erect penis. Wright found that Clinton's alleged exposure of his erect penis constituted abandonment of his sexual conduct. Wright failed to cite any case that supported her opinion on this point. If this constitutes abandonment, can you imagine what Clinton might have done if he had not abandoned his sexual conduct?
Wright also neglected to cite a single case that made her opinion about the severity of Jones' alleged emotional distress controlling over anything to the contrary a jury might have found. Wright failed to cite a single case that compelled her to rule that it would be improper for a jury to find that Jones' emotional distress was so severe in nature that no reasonable person could be expected to endure it.
Wright's decision is bad news for the women of Arkansas and good news for those Arkansas men who don't care if they hurt women by acting worse than pigs.