A lengthy debate followed between the two teams of lawyers. It turned out points 2 and 3 were too broad: anyone accidentally brushing their hips against another person could be accused of having "sex." Judge Susan Webber Wright therefore eliminated points 2 and 3. However, notice that point 3 would have clearly included oral sex performed on Clinton. Its removal set the stage for the controversy to follow.
The Jones’ lawyers then asked Clinton if he had sex with Monica Lewinsky based on the remaining definition.
Unfortunately, the definition still contained ambiguities. Who are the "persons" mentioned in the definition? Clinton interpreted it this way:
Given that understanding, the definition clearly does not include oral sex performed on Clinton. Why? Because oral sex is performed with the mouth, and "mouth" is not listed among the other body parts in point 1. Furthermore, a man receiving oral sex is generally considered to be receiving pleasure rather than giving it, and so fails the criterion "to arouse or gratify the sexual desire" of Ms. Lewinsky. Which may make Clinton sexually selfish, but that is not illegal.
Some have argued that Clinton’s interpretation of "person" is wrong, and that makes him guilty of perjury. But his interpretation is reasonable at most, and arguable at least. Even if Clinton did misinterpret the most obvious meaning, it is up to prosecutors to prove that he intended to lie about it rather than he was mistaken, something that is impossible to prove. And in any case, it is up the to the prosecution to agree to definitions that are not ambiguous. The Jones’ lawyers could have easily eliminated any confusion by replacing the term "person" with "deponent and any second party," but they did not. They could have also asked follow-up questions to clarify anything – indeed, they were invited to by Clinton’s lawyers – but they did not. The whole incident is a classic case of prosecutorial incompetence.
Others have charged that Clinton lied because there was another form of sexual activity – namely, the infamous "Cigar incident." This was when Clinton allegedly inserted a cigar between Ms. Lewinsky’s legs. But this fails the definition too. It defines "contact" as "touching, either directly or through clothing." "Direct" means skin-on-skin. "Through clothing" means skin-on-clothing or clothing-on-clothing. The Cigar incident was cigar-on-skin, which fails the definition.
Critics have yet another argument that they claim proves perjury. For Clinton’s legalistic answers to be true, he would have had to remain "hands off" during the many intimate encounters he had with Ms. Lewinsky. This is extremely unlikely, especially since Lewinsky testified that Clinton frequently touched her breasts and genitals, which is within the legal definition. In fact, the reason why Starr included so much graphic detail of Lewinsky’s testimony in his report was to show that Clinton did touch her sexually. The sheer volume of the testimony is damaging.
There are several defenses: Lewinsky may have exaggerated her testimony, or Starr may have coerced it. Another possibility, implied by Clinton himself, is that he did not touch her with "an intent to arouse or gratify." He may have been "hands on," but it might have been for his pleasure, not hers. In that case, his answers are still legally accurate. Again, this may make him sexually selfish, but that is not illegal. For critics to prove perjury, they must somehow enter Clinton’s head and prove that he did not intend to sexually gratify Ms. Lewinsky. Which, of course, is clearly impossible. Clinton may have even made a mistake by interpreting the definition too narrowly, but that is not the same thing as lying.
The bottom line is that the definition crafted by the Jones’ team was deeply flawed, and allowed Clinton to make legally accurate answers in spite of what actually happened.
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