Harvey Weinstein’s conviction is good. But it hasn’t changed the world
‘A rape case is still extremely difficult to win ... Weinstein hasn’t changed that’
Harvey Weinstein. Photograph: Angela Weiss / AFP via Getty Images
Life will never again be the same for inmate no. 3102000153. Society may never be the same either.
The trial of Harvey Weinstein – convicted on Monday of the rape of actor Jessica Mann, and a criminal sex act against production assistant Miriam Haley – systematically annihilated some of the most pervasive and enduring myths about rape and harassment, and about how “real” victims behave.
The disgraced movie producer is already preparing an appeal against a verdict his lawyer, Donna Rotunna, described as “bittersweet”, as he was acquitted of the more serious charges of first-degree rape and predatory sexual assault. But “he took it like a man”, she added, a statement with which decent men might well take issue.
As he embarks on life behind bars and awaits a trial on other charges in Los Angeles, it is worth taking a moment to remember that behind every successful prosecution for a sexual offence is someone who was prepared to risk vilification for speaking out. In Weinstein’s case there were more than 90 someones.
For Noeline Blackwell of the Dublin Rape Crisis Centre, the verdict was significant because it shattered the notion that “some people are untouchable and above the law. This was someone with great power and privilege, and they were ultimately held accountable.
“It was not easy. It took excellent investigative journalism. It took massive courage on the part of survivors – both witnesses in the case, and official complainants. It took a prosecution service that understood the seriousness of that kind of harassment. And it took all of that come together, pushed and shaped by the #MeToo movement.”
Dr Conor Hanly, lecturer at NUI Galway School of Law and author of a book on Rape and Justice in Ireland, agrees that “on one level, it’s quite an inspiring case. You have this guy who by all accounts is extremely powerful being made subject to the same laws as everybody else.”
On the other hand, he warns against reading too much into it in a global context. “I would be very slow to draw any wider conclusions because of the notoriety of Mr Weinstein, and the massive pretrial publicity he was subjected to. In ten years’ time we may look back and say this was a turning point, but it’s premature to conclude that anything has changed” as a result.
But in one aspect, at least, the trial was remarkable for the myths and assumptions it demolished.
It showed that there is no such thing as the “perfect victim”; that an alleged victim’s behaviour before or after an assault doesn’t imply anything about whether it took place.
It demonstrated that there is no “right” way for a victim to behave; that an accuser subsequently having a cordial, friendly, flirtatious relationship – or even a consensual sexual encounter with the alleged perpetrator of an assault, as both Miriam Haley and Jessica Mann did – does not mean those assaults did not happen.
It reminded us that there’s more than one way to say “no”, or that saying yes on another occasion does not invalidate that no.
Seeing how he weaponised that power is key to understanding how sexual offenders in all walks of life operate
“The fact we’re even talking about rape myths – or rape assumptions – is to be welcomed, and it’s a conversation we wouldn’t have had 10 years ago,” says Hanly.
The trial has shed light, too, on the parasitic relationship between rape and power, showing perpetrators are emboldened and protected by the cultures, the networks and the codes of behaviour that protect them.
The extent of the colossal power imbalance between Weinstein and his victims made it easy for the jury and the public to grasp, but seeing how he weaponised that power is to key to understanding how sexual offenders in all walks of life operate, Blackwell suggests.
“The level of fear and power imbalance in the Weinstein case is very instructive in teaching us about how rape can happen and hurt and be damaging and be criminal – even in relationships that continue and are intimate; even in cases where somebody says nothing for years,” she says.
“One of the puzzles of this case for many people is why don’t the victims of domestic violence or sexual violence just walk away from it. In fact, that is not how human beings operate.”
The trial reminded us, too, that behind every predator convicted of rape or assault there is – still – a victim or survivor who is willing to risk vilification and the attempted dismantling of their own reputation to be heard.
The vilification of Weinstein’s accusers was a certainty from the moment back in January when his defence lawyer, Damon Charnois, made his opening statement. The defence was, he said, in possession of “dozens and dozens and dozens of emails between Harvey Weinstein” and what he called “the complaining witnesses in this case”.
The defence would go on to paint these witnesses as opportunists, who had “bragged about being in a sexual relationship with him”.
Miriam Haley was described as “a flirtatious person.” Jessica Mann was said to have “borderline personality disorder”. When she sobbed in the witness box, it was hinted this was a sign of her instability.
Actor Annabella Sciorra, who appeared as a witness describing an alleged rape that happened too long ago for him to have been charged, was “acting”.
“The witnesses’ character and motivation were strongly attacked. And Weinstein didn’t have to say anything – nobody got a chance to confront him,” says Blackwell.
Similarly, “in your typical sexual assault case in Ireland, the complainant must give their evidence, and the defence is totally entitled to dismantle or discredit that evidence as best they can. That often means discrediting a person’s character; looking at how they behave; who they sleep with; their drinking habits.
“The accused may never have to take the stand. I’m not taking issue with the accused’s right to have that level of proof, but the witness remains vulnerable and unrepresented and unprotected.”
Weinstein’s prosecution was ready for this. It brought in forensic psychiatrist Barbara Ziv to systematically tear apart “myths of rape trauma” and the notion that there is a single way “real” victims behave. In her 20 years of experience, she had seen more than 100 different responses to assault, “none of which tells you whether a sexual assault occurred.”
A rape prosecution is still extremely difficult to win ... This case hasn’t changed any of that
It was, Ziv said, “extremely common” for accusers to keep in contact with their attacker, “because they can’t really believe that this happened to them. They’re hoping that this is just an aberration. You hear that all the time.”
In Ireland, the rights and protection of vulnerable witnesses are being examined in a report by a working group chaired by Tom O’Malley, a law lecturer at NUIG. The Dept of Justice said last week that the review “is at an advanced stage” and is expected to be published within the next month.
“The outcome of the review will be given careful consideration by the Department, alongside the recent work of the Law Reform Commission on Consent in Rape Law,” a spokesperson said. The spokesperson pointed to a new Victims Charter (victimscharters.ie) established earlier this month by the department as part of the Victims of Crime Act 2017.
Hanly says that this act, the O’Malley review and a recent Law Reform Commission report on Consent in Rape Law are all part of a much-needed national discussion on how rape is prosecuted which, in the long run, will have a far more significant impact than the verdict of any one trial.
“If similar allegations were made without the power imbalance, without the pretrial publicity, would we get to the same decision? I don’t know.
“A rape prosecution is still extremely difficult to win, by its nature. Invariably, there are rarely witnesses, and the presumption of innocence means the burden of proof lies on the State. This case hasn’t changed any of that.”