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Oral Sex Oral Argument Will the justices know it when they see it?

'But Ginsburg suggested Lewinsky may say she and Clinton engaged in an act other than intercourse. 'What's the president's definition of sex?' he asked in an interview minutes after Clinton's statement.'

--USA Today, Jan. 27, 1998

Justice O'Connor: I am trying to get my mind around this theory, Counselor.

Mr. Bennett: Yes, Your Honor.

Justice O'Connor: You say it was not sex? Though the affidavit and counsel all attest that she ... did as the affidavit attests?

Mr. Bennett: Your honor, we are proposing that not everything that looks like sex is sex and that some things that do not look like sex are in fact sex. To me, ministering to a person's toes in a particular way does not look like sex, but I am reliably told it is sex. On the other hand, say you visit your doctor and your doctor fingers your anatomy, to find lumps or sores or whatever. That's not sex.

Justice Kennedy: Sorry, Mr. Bennett, are you suggesting that your client was being checked for testicular cancer?

Mr. Bennett: Not exactly, Your Honor. We are saying that a mere sexlike act does not, prima facie, constitute sex. Sometimes it is something else. My client allowed himself to be attended to in a very particular fashion but, as you have seen, it was for his health.

Justice Thomas: I have had that operation, and it works. [Image] Mr. Bennett: Yes, Your Honor. Now, it would have been sex had it been something else--say, a procreative type of act. All major religions categorize that type of act as sex, which is why they oppose it except in very particular circumstances. But the type of act that my client was engaged in--no, he was not lying when he said he had not had sex, or else every woman in the country is having an affair with her gynecologist.

Justice Scalia: I don't believe that women actually enjoy these gynecological examinations. There's a difference, isn't there?

Mr. Bennett: Your honor, we maintain that my client also did not enjoy the particular operations in which the young woman assisted him.

Justice Scalia: 'Assisted him'?

Mr. Bennett: Well, he could not do it by himself, could he?

Justice Thomas: Some people can! [Image] Justice Scalia: If this was a necessary medical act, for his well-being and so forth, why didn't he go to his doctor to have it done?

Mr. Bennett: I take your point, Your Honor, but have you seen his doctor?

Justice Scalia: No, but I thought he needed an 'assistant,' not a sex object. That's your point, isn't it? If he needed a sex object, then it was sex, wasn't it?

[Image] Mr. Bennett: If you will bear with me, Your Honor, he needed a sex object to help him with a sexlike but nonsexual act. It is in the nature of this particular operation to require the assistance of a person who is, shall we say, physically qualified.

Justice Rehnquist: So he could not have had, say, a middle-age man do it for him?

Mr. Bennett: No, sir, not as I understand the matter.

Justice Breyer: How about a younger man? Say, a 21-year-old college wrestler who has worked up a good sweat? That might work, mightn't it?

Mr. Bennett: Your honor, we may be losing sight of the point, which is that even if he did go to such a person for this particular operation, and the operation was successful, then of course that also would not have been sex. [Image] Justice Stevens: Look, his wife could do it, couldn't she?

Mr. Bennett: Your honor, she in fact did do it, but that also was not sex. It was not the procreative-type act, and the procreative-type act is what defines sexual relations within the context of matrimony. Moreover, she has not done it very much lately.

Justice Scalia: So what he was doing with the young woman, these 'treatments' ... that would have been adulterous nonsex?

Justice O'Connor: Honestly, Counselor, I have never heard a more amazing argument in my life. Surely you can't maintain that his looking after this particular health need, as you call it, which is so highly pleasurable, is like having kidney dialysis or getting an enema?

Mr. Bennett: Your honor, he did not take pleasure in it. We have stipulated to that effect on numerous occasions and under oath. It was not enjoyable for him, except insofar as it was a purely physical release. It was a treatment for him. Of course, the release of any physical pressure is always pleasurable in some sense--for instance, when the [Illustration by Robert Neubecker]summons of nature is answered after a particularly long period of time--but it was not done for pleasure. [Image] Justice Souter: What if someone else did it with her? I mean, would that be sex, in the government's view, or does this rule apply only to him? I mean, what if she treated the vice president?

Mr. Bennett: That would depend on how much that person needed it. My understanding is that the vice president does not need it or do it, but if he did it, it would be sex, because he can get along just fine without it.

Justice Kennedy: So how are we supposed to be so sure that your client has this sort of intense medical-type need, as distinct from, I don't know--an ordinary sexual-type need? I mean, you want us to take his word for it, is that it, plus these expert witnesses you've corralled?

Mr. Bennett: Your honor, if this had been something less than an essential medical-type need, do you think he would have been so thoughtless as to risk his office and his place in history merely for sex?

Justice Kennedy: No. That would be implausible.


Jonathan Rauch is a national correspondent of National Journal in Washington.

Illustrations by Robert Neubecker. [Image]

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