The Kennedy Family: When Public Fame and Private Action Overlap : Trial: As if to make up for less-than-rigorous reporting in the past, the press told the public more than it ever wanted to know in Palm Beach.

For their sake, and ours, it would be better if members of the Kennedy family were not so incessantly prominent in this country and around the world. Yet there is no helping it. The shootings of President John F. Kennedy, in 1963, and Sen. Robert F. Kennedy, in 1968, punctuated some of the largest political upheavals in the nation’s history.

Sen. Edward M. Kennedy has proved no exception to the pattern. For his career has become the chief symbol and embodiment of vast changes that have taken place during the past 20 years--in the way this country deals with politicians’ sex lives, in our more general thinking about the issue of sexual consent and in the legal system’s treatment of delicate subjects and powerful individuals.

Even after more than two decades, many people still remember the outlines of the Chappaquiddick scandal. Late at night in July, 1969, Kennedy drove a 1967 Oldsmobile off a rickety bridge on the island into Poucha Pond. He survived the plunge, but his passenger, 28-year-old Mary Jo Kopechne, died trapped in the car under the water. Kennedy said afterward that, at the time of the accident, he had tried to pull the young woman out of the submerged vehicle. But the next day, when her body was discovered, he had still not notified the police. To this day, the debate continues over whether the young woman might have lived if Kennedy had acted differently that night.

Yet local officials cooperated with Kennedy lawyers and friends to minimize the incident. When the senator pleaded guilty in an Edgartown court to leaving the scene of an accident, he was given a two months’ suspended sentence and had his driver’s license lifted for a year. The records of the inquest into the affair were ordered sealed until the process was over, and there was no sustained outcry from the press. Kennedy survived the tragedy not only physically but politically.

In the early 1960s, people who thought of themselves as politically liberal also tended to be relatively tolerant in matters of sex. But, by the end of the decade, writers in the women’s movement had persuaded many of the same people that sex could be a vehicle for violence and degradation. In the same way, only a few years before Chappaquiddick, the stories circulating about the Kennedy brothers and sex had involved extramarital affairs that were made to sound harmless or even glamorous. But in 1969, the rumors were about manslaughter.

Despite this shift, the Chappaquiddick affair looks from today’s vantage point like a scene from the old order in national politics, with its relatively lenient standards for judging politicians’ private sins. But over the course of the 1970s, press coverage of political sex became more open and aggressive, and we saw an increasing number of sex scandals involving politicians. In the 1980s, this coverage took a new tack: More and more of these sex scandals turned, as Chappaquiddick had, on issues of sexual coercion and violence, from rape and spousal abuse to harassment and prostitution. Because these coercion scandals usually involved two adversaries--the perpetrator and the victim--instead of two consenting adults, and because they often included criminal activity, the public got to hear ever more explicit details of just what went on.

The rape trial of William Kennedy Smith was typical in this regard, and the contrasts it posed to the old Chappaquiddick scandal are instructive. At Chappaquiddick, the questions raised about Kennedy’s character stemmed directly from deeds he himself had clearly done. But in Palm Beach a little more than 20 years later, journalists and prosecutors, as if in an attempt to hold the trial that should have taken place in 1969, decided it was appropriate to examine Kennedy’s character by paying vast attention to an incident that involved him only peripherally. At Chappaquiddick, journalists were restrained enough to have hated themselves the morning after. In Palm Beach, by contrast, no one can argue that news organizations undercovered the story.

The earlier courtroom proceedings had revealed little about the accident at Chappaquiddick. In Palm Beach, by contrast, we got immense amounts of detailed information--more than many of us wanted to know. This difference was partly due, of course, to the fact that, with Chappaquiddick, the victim was a dead woman, while in the Palm Beach case she was a live and vigorous accuser. Contrast also stemmed from the clinical sexual detail with which we are now willing to pepper our public discussions. Finally, the difference in information between the two cases grew out of differing attitudes that public authorities took toward the Kennedy family.

There is little doubt that at Chappaquiddick, officials willingly helped limit Kennedy’s public exposure and the sanctions against him. In Palm Beach, it was the opposite. We heard and read repeatedly that, before the accusations against Smith, local prosecutors had come under heavy criticism for allegedly being too accommodating to the Kennedys in a prior drug case. Smith’s prosecutor, Moira K. Lasch, was not going to make the same mistake. In fact, at the trial she explicitly attempted to capitalize on negative images of the family: She told the jury there was a Kennedy “machine” that had gone into operation to cover up the alleged crime and must not be permitted to succeed. The Kennedy family’s money gave Smith the advantage of some very good lawyers, but the family’s political power and connections certainly bought the defendant no official favors.

Yet here is an irony: At the end of Smith’s trial, despite the increased openness and the substantially leveled playing field, we could not say that a rape had taken place any more than we knew that manslaughter had occurred at Chappaquiddick. This paradox comes partly from the fact that during the past two decades, as we have tried to find out more about officials’ private lives, we have also changed the nature of the offenses that we try to demonstrate and punish through the legal system.

Even in criminal cases built around a corpse, it can be difficult to find out how the body actually got that way. And with an offense like date rape, in which the alleged perpetrator can cite a perfectly good reason for having been alone with his victim-accuser, things can get even more puzzling. Under our system of criminal justice, puzzles and irreducible mysteries end in acquittals. Thus there will surely be charges of date rape--or, as the Clarence Thomas hearings showed, of sexual harassment--that the law cannot reach and that criminal trials cannot establish for us.

We may have arrived, in other words, at the far end of the swing of the pendulum. A few years ago, we could not learn even about private behavior that most certainly influenced an official’s public performance; now, with the Smith trial, we have paid an enormous amount of attention to an event whose connection to any official performance was tenuous. We have moved from not fully examining even questions of clearly criminal behavior to asking the courts to pass judgment on behavior that is sometimes unknowable or inherently ambiguous in meaning. We have swung from the days when family prominence can buy officials protection to a time when being prominent equals being a fatter target.

Things have gone a bit too far. It is time to start swinging back.