It's no accident that the first and only time the Vermont legislature has suspended a member is when that member was charged with sex crimes.
The member, of course, is Sen. Norm McAllister (R-Franklin), who has pled not guilty to three counts of felony sexual assault and three misdemeanor charges of prohibited acts involving three female victims, including a young intern.
"The question remains: Why do we have to say anything at all?" Senate Majority Leader Philip Baruth (D-Chittenden County) began his introduction of the Rules Committee's resolution to suspend. It was clear that the committee — and, as it turned out, 20 of 30 senators — felt that something urgently needed saying. The matter was the first item on the agenda on the session's first day of real business.
The genius of suspension — a procedure the committee sort of made up, on the model of a similar move in the California legislature — was that the senators didn't have to say anything. They could indict McAllister and at the same time not indict him. The Senate could indict by innuendo and let the public's hatred and fear of the "sex offender" deliver the verdict.
Suspension means that McAllister is removed from all duties and privileges of office (except pay) until the courts reach a verdict. His constituents are down one senator, in violation of Vermont statute, which requires the governor to appoint someone to fill a vacant seat.
Twice in its history the General Assembly has expelled — or impeached — one of its own, and in both cases for grave offenses against the state. In 1781, two representatives made an illegal deal on a government bill of credit. Monkeying with such instruments was punishable by death — but the expulsion lasted less than a day. The only representative permanently removed from office was Jonathan Fassett, in 1787. His crime: inciting "mutiny and riot & sedition" against the government.
In each instance, formal charges were lodged and evidence brought against the accused, who were allowed to defend themselves. Had the Senate impeached McAllister — a constitutional procedure, unlike suspension — it would have had to enumerate the reasons.
But the resolution to suspend McAllister gave no cause. Sen. Peg Flory, the Rutland Republican who has led opposition to the resolution, called this suspension without grounds a "very dangerous precedent." From now on, anyone may be kneecapped for any reason — or no reason — and no fingerprints will be left at the scene.
So why did the Senate have to act? "It's my own personal belief that the number and nature of the felony charges against Sen. McAllister requires us to suspend him," said Baruth, answering — and begging — his own question.
The integrity of the chamber was at stake, the resolution's supporters said. The trial would be a distraction. But safety was a major recurring theme. The Assembly was obligated to protect the young and vulnerable "in our care," Baruth said. In December, Senate President Pro Tempore John Campbell (D-Windsor) reported that after McAllister's arrest, the parents of at least one legislative page expressed anxiety about their kid's safety. One of McAllister's constituents, at the Statehouse to hear the discussion, told WCAX he was OK with losing one senator, because "the Senate should be a safe place" for other members, staff, pages and others; "people could be put in danger." Chittenden Progressive/Democrat David Zuckerman allowed that he was voting yea in deference to "any women in the Statehouse [who] feel that there's a risk."
Heightening this exaggerated sense of peril, the police inexplicably arrested McAllister at the Statehouse instead of at his home. You'd think the guy had been crouching in the cloakroom, picking off victims.
Some argued that the action was not unprecedented, as others had said. Schools, police departments and companies routinely suspend employees on claims of sexual harassment alone. And if McAllister used his position of power to pressure the intern to submit to sex, never mind the criminal charges, he'd have been committing sexual harassment.
But, as Flory noted on Vermont Public Radio's "Vermont Edition," even a harassment claim has to be described, investigated and found credible. And the accused enjoys due-process rights.
Yet the yeas kept insisting that due process was a moot issue. They were not rendering judgment on the criminal charges. In fact, that was the virtue of suspension, in contrast to impeachment, they said. An impeachment inquest might evince suggestions or evidence of guilt or innocence that could undermine the prosecution or the defense.
So here's the logic: The senators did not impeach McAllister because that would mean writing down what he did wrong and proving it — and they might end up inadvertently proving the wrong wrong. If, on the other hand, the senators avoided writing down what McAllister did to warrant suspension, they would not be implying anything about any particular wrongdoing. After all, as Baruth put it, it was "the nature of the charges," not the truth of the charges, that triggered the suspension.
This distinction smelled like sophistry to the 10 senators who voted nay. "If we are not implicitly determining guilt," declared Windsor County Democrat Dick McCormack on the Senate floor, there would be no suspension to debate.
On "Vermont Edition," host Jane Lindholm asked Flory if she thought the senators would have suspended McAllister if most of them believed "in their heart of hearts" that he was incapable of the acts of which he's been accused.
"It was a very uncomfortable position for a lot of people to be in, not knowing if he was guilty or innocent," Flory replied. Suspension was "convenient." It "made our jobs easier to not have to be reminded every day."
It was easier not to imagine McAllister's penis in the mouth of an unwilling woman. Easier not to look at the man whose old hands may have fondled a teenager's body.
But ease came at too high a price: "The very process of making it easier did away with the presumption of innocence," Flory said.
At the start of the debate, Baruth predicted that no one would feel good at the end of the day. But the next day, it seems they did feel better. All the legislators participated in a training session on sexual harassment — except McAllister, though he probably would have benefited. Baruth told Lindholm he had worried that the training might "produce additional feelings of strangeness." But, happily, it did the opposite: "I thought it produced a kind of good-fellow feeling," he said.
The pariah was gone. Comfort was restored under the golden dome. The senators had enacted that American rite of citizenship and community bonding: the ostracism of the sex offender.
The lawmakers had blasted away at the bedrock of the rule of law. Now it was time to get back to work.
Judith Levine is the author of four books, including Not Buying It: My Year Without Shopping and Harmful to Minors: The Perils of Protecting Children From Sex. Her column, "Poli Psy," appears biweekly in Seven Days.