The guilty verdicts against Harvey Weinstein in a prosecution that faced long odds is more than a victory for the #MeToo movement that his case propelled. Even though he was acquitted of the most serious charges — two counts of predatory sexual assault — the outcome sends a signal that social and legal barriers that have long denied justice to victims of sexual assault are beginning to crumble.
Mr. Weinstein was found guilty of a first-degree criminal sexual act against Miriam Haley, a former production assistant on a television reality show, and third-degree rape in an assault against a onetime aspiring actress, Jessica Mann. He was sent to jail to await his sentencing.
The convictions of the once-powerful movie producer certainly bring a measure of validation to his many accusers, both in and out of the courtroom. But this outcome is not an endpoint. While there may never be another prosecution quite like the one of Mr. Weinstein, increasingly we’ll see others that resemble it. This alone counts as real progress.
The trial was among the most watched in recent history, and for good reason. In 2017, blockbuster reporting unearthed multiple accusations of sexual assault against Mr. Weinstein going back decades, fueling the spread of a Twitter hashtag and a global movement in #MeToo.
That Mr. Weinstein, 67, even stood trial was a remarkable anomaly. A vast majority of sexual assault cases never reach the courtroom. Most sexual assaults are never reported; of those that are, few ever result in arrest or prosecution. The Rape, Abuse and Incest National Network estimates that out of every thousand sexual assaults, only five lead to felony convictions.
Those cases that do end in conviction tend to look very different from the Weinstein case. Prosecutors are most likely to pursue charges in “real rape” cases — those involving strangers, physical injury, a weapon, physical resistance and immediate reporting. (In the Weinstein trial, Annabella Sciorra’s account of being raped by Mr. Weinstein may have come closest to matching this paradigm, but the assault she described happened in the early 1990s, outside the statute of limitations, and could not be pursued as a separate criminal charge.)
The prosecution of sex crimes is relatively rare when the assaults are of the more commonplace kind — between acquaintances, with minimal force and delayed disclosure. Such circumstances can test the ability of jurors to set aside conventional notions of sexual assault. When friendly exchanges or even consensual intercourse between the perpetrator and the victim occur after the assault, as they did according to testimony in the Weinstein trial, it becomes difficult to fathom a prosecution, must less a conviction.
In all, six women testified that Mr. Weinstein sexually assaulted them, but only two of the cases were charged. Prosecutors had hoped that the other witnesses would establish a pattern of Mr. Weinstein preying on vulnerable women.
Not all men accused of sexual assault will have left such a trail. Prosecutors often have the testimony of only one witness, which is typically not enough to persuade jurors, even if additional evidence corroborates the victim’s account. Jurors often are unduly skeptical when judging sexual assault allegations. This “credibility discount” has historically pervaded the criminal justice system and persists, even in the age of #MeToo.
Cross-examination of Mr. Weinstein accusers sought to tap into what were likely deep-seated suspicions held by some jurors of women who report sexual assault. It is no surprise that age-old tactics were used to discredit the witnesses. At times, they were portrayed as lying for fortune or fame. They were blamed for putting themselves in a vulnerable situation. They were presented as vengeful women who regretted having consensual sex. Now the question is how long those familiar tropes will retain their power an era when accusers stand a chance, however remote, of being believed.
Throughout the trial and the jury’s deliberations, many supporters of the #MeToo movement felt a sense of urgency. If Mr. Weinstein was not held to account, they wondered, what hope was there for ordinary survivors of sexual violence seeking criminal justice?
Over the past six months, as I researched a book on credibility, I spent many hours talking with victims of sexual harassment and assault. Our conversations often turned to the meaning of accountability.
Some survivors told me they wanted nothing to do with the criminal justice system. For others, protecting possible future victims was a main reason to turn to the courts. Still others saw a criminal conviction as recognition of the harm they suffered and that it matters. For these survivors and countless others, Mr. Weinstein’s conviction is cause for hope.
To be sure, #MeToo aims to accomplish much more than sending the worst offenders to prison. The movement’s reach is ambitious — it demands that we transform our culture of male sexual entitlement and the misconduct it begets. But legal accountability is part of this evolution.
This shift may also require reforming our sexual assault laws, which continue to fixate on physical force rather than on the absence of consent. In the case of Ms. Haley, the jury believed her testimony that he forced oral sex on her, and conviction for this first-degree criminal sex act carries a maximum penalty of 25 years. But the conviction in the third-degree rape case of Ms. Mann did not require proof of force and carries a maximum penalty of only four years. What the law fails to recognize is another dynamic at work: coercion. The Weinstein accusers described him controlling their professional and personal lives in ways that were not mainly physical. But the law of sexual assault does little to account for that kind of power.
The Weinstein convictions show us that real progress is underway. But the system still mostly fails survivors. Women who are poor, of color, who come forward alone — especially these women — will continue to be disbelieved and blamed. Even women whose cases never make the headlines deserve more than an elusive promise of criminal justice.
Longstanding biases against accusers will not disappear overnight; not even an extraordinary conviction can remake the world. But the Weinstein verdicts indicate that we are beginning to correct course.
Deborah Tuerkheimer is a professor at Northwestern’s Pritzker School of Law and a former assistant Manhattan district attorney.
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