Weinstein Rape Trial: Part One

By Jessica Sutton.

Dear Harvey,
No matter what lies you tell yourself, you did this. Today, Lady Justice is staring down a super predator: you.
– Rose McGowan.[1]

Last week marked the start of the much-anticipated criminal trial of former Hollywood producer Harvey Weinstein, for rape and sexual assault. A press conference held by the group of Weinstein accusers who have called themselves the ‘Silence Breakers’, had a collective message – “we aren’t going anywhere”.[2] These were the allegations that turned #MeToo from the little-known brainchild of activist Tarana Burke, to a global phenomenon. The preliminary stages of Weinstein’s trial mark an opportunity to revisit the scandal that kick-started the #MeToo era, and to explore the backlash women have suffered from industries and a society that continues to punish the victim.

The Scandal

It was a historic moment in late 2017, when the world was rocked by reports laying bare the scale and severity of sexual violence in the film industry. A series of women made multiple allegations of sexual violence perpetrated by producer Weinstein. The common themes to the allegations were that Weinstein had abused his power and position, like many other men in the industry, to sexually abuse countless women. After a hailstorm of allegations and a multitude of investigations, Weinstein now faces a criminal trial in New York for rape and sexual assault. Weinstein’s New York charges include raping a woman in 2013 whose identity is supressed, and forcible performance of a sex act on a production assistant, Mimi Haleyi, in 2006.[3]

Over 80 women overall have accused Weinstein of sexual violence since 2017, and some of these women will be called as witnesses over the coming weeks. Weinstein has already denied guilt regarding sexual assault charges from the 1990s, which unfortunately are now outside the limitation period for prosecution in New York. However, the woman concerned, Anabella Sciorra, will have a chance to speak as a witness in the upcoming trial.[4] These criminal charges follow a civil case, in which a class action brought by nearly 30 complainants was sidelined by Weinstein attempting to negotiate a settlement of 25 million USD drawn from insurance funds, rather than his own money.[5] This deal has provoked controversy, both for the source and poor level of compensation, as well as the lack of accountability inherent in a settlement rather than a binding judicial decision.[6] Hope for any real punishment lies in the criminal trials in New York, and later in California.

The Trial So Far

If found guilty, Weinstein could receive life imprisonment. Weinstein’s defence is that all sexual encounters were consensual. Donna Rotunno, his lawyer, has set the tone for the trial by describing sexual relations as “grey areas” with “blurred lines”, insinuating that complainants may be mistaken or intentionally lying about their assaults.[7]

In a positive development, the prosecution has been permitted to call other Silence Breakers as witnesses demonstrating Weinstein’s history of sexual violence. Known in the United States as “prior bad acts” witnesses, New York allows such witnesses in rare circumstances under the ‘Molineux Rule’. The traditional standpoint is that evidence of prior offending is generally excluded at trial. However, this is often taken to absurd lengths, meaning an accused rapist may conceal a long history of sexual offending from a jury. The practical effect in the Weinstein case is that allowing these women to testify will shed light on Weinstein’s propensity to be a predator. Since the #MeToo movement has gained traction, Judges have been more and more willing to allow this kind of witness to testify.[8]

Jury selection itself is hugely contentious in this case, and is expected to take as long as two weeks. This is largely due to the huge publicity of the case in the media, meaning many potential jurors self-report as being unable to regard the case impartially, or are otherwise challenged by the Judge or lawyers.[9] Weinstein’s lawyers have also gone further in arguing that both the Judge and prominent women’s rights attorney Gloria Allred should step aside.

For the Judge, it was argued that Judge Burke’s rebuke of Weinstein texting in court was “inflammatory” language, which demonstrated aggression and lack of impartiality. “Is this really the way that you want to land up in jail for the rest of your life? By texting in violation of a court order? Is it?” Judge Burke asked.[10] Weinstein’s counsel suggest this is indicative of bias on the part of the Judge, although as yet Judge Burke’s position has not been impeached.

For Gloria Allred, lawyer for three prospective trial witnesses, it was alleged that her presence in the courtroom would be prejudicial to Weinstein’s case. The suggestion was that she would relay information back to her clients and compromise his fair trial rights. However, Ms Allred has been described as a dedicated and professional attorney, and her presence would be a comfort to complainants giving traumatic evidence. Recognising this, Judge Burke has ruled that she should remain.[11]

With further challenges likely from defence counsel, the Weinstein trial is poised to move as slowly as Weinstein’s crawl up the court steps with the aid of his walking frame.

The Backlash

The sheer scale of the Weinstein case is liable to incite a certain amount of male insecurity and backlash to the allegations. The influential accusers in the Weinstein scandal have escaped the worst of the usual dismissal of complainant credibility in rape cases, likely due to their number, and their celebrity status. Nevertheless, the harm suffered by these prominent women is horrendous, and their activism and courage despite it, is humbling. The complainants in the trial have also endured a gruelling ordeal, which will only worsen with the coming weeks.

Meanwhile, attacks on the motivations and credibility of every woman involved in the case are growing. Is this #MeToo business going too far? Men bleat from the side-lines. Complainants are termed career ruining shrews, talentless women jealous of male success, or desperate to re-cast a “regretted” sexual encounter in a different light. These false and stereotypical narratives portray the possible loss of male reputation as a more potent risk than letting repeated sexual violence go unpunished.

Beyond the effect on the complainants and witnesses, women in the workplace are also documented as suffering due to male backlash to #MeToo. Men who are threatened by the possibility of women breaking the silence around sexual violence may respond along the following lines.

Oh, so I can’t even be friends with a woman now, is that it?

Makes a guy nervous, all these accusations – I could get in trouble over anything.

Why can’t women take a joke these days?

Excluding women from certain social situations, avoiding one-on-one meetings, and being less likely to hire ‘attractive women’ have all been documented reactions to the increased accountability brought by #MeToo.[12] This is a poor counter-attack on women’s workplace safety, disguised as ‘good blokes’ concerned about false accusations or misinterpreted actions.

This kind of rhetoric is implying that men are blameless but ignorant buffoons, unable to distinguish harmless banter from harmful behaviour. Surely, this stereotype is offensive enough on its own, but it has also repeatedly been shown to be false. In a recent study conducted on workplace behaviours, men performed better than women at identifying what constitutes sexually inappropriate conduct.[13]

Sexual offenders know what harassment is. They know what assault is. They know what rape is. They choose to violently offend because of their own perverted desire for power over women, fostered and facilitated by industries which turn a blind eye to female suffering. #MeToo isn’t about ‘friendly’ behaviour being misinterpreted, or women flying off the handle at a harmless joke. Those are fabrications meant to conceal and devalue sexual harm, coming from offenders who are frightened to realise that their conduct, finally, is starting to have consequences.

What Next?

Weinstein faces separate charges in California for the rape and sexual assault of two women, meaning that whatever the outcome of the New York trial, Weinstein will go on to be tried in California.[14] The very fact that an extremely powerful white man is to be tried for sexual violence is a cause for celebration in the eyes of many. However, simply reaching trial should not be termed a victory.

Romanticising the gains made by #MeToo in this case, poses the risk of becoming grateful for the simple opportunity of being heard. Reluctant societal acceptance of certain prominent women speaking out about sexual violence does not in itself provide redress for male violence. If the court system fails to hold perpetrators accountable, #MeToo is ultimately an empty means to placate women without giving victims actual redress. Thanks to the strength and courage of the survivors who will take the stand during this trial, we have the chance to achieve accountability which has thus far been elusive. #MeToo has been about speaking out, but it now needs to be about real, tangible justice, something we hope to see in the coming weeks of the trial.

[1] https://www.standard.co.uk/insider/alist/harvey-weinstein-trial-new-york-rose-mcgowan-a4328041.html

[2] https://www.hollywoodreporter.com/news/silence-breakers-harvey-weinstein-we-arent-going-1267119

[3] https://time.com/5751657/harvey-weinstein-trial-rape/

[4] https://www.telegraph.co.uk/films/0/hollywoods-avenging-angel-could-annabella-sciorra-bring-harvey/

[5] https://consequenceofsound.net/2019/12/harvey-weinsteins-civil-deal-money-guilt/

[6] https://www.bbc.com/news/entertainment-arts-50755113

[7] https://www.bbc.com/news/entertainment-arts-50956870

[8] https://edition.cnn.com/2020/01/06/opinions/weinstein-criminal-case-me-too-polisi/index.html

[9] https://www.usatoday.com/story/entertainment/celebrities/2020/01/08/harvey-weinstein-trial-day-3-jury-screening-new-york/2836321001/

[10] https://edition.cnn.com/2020/01/08/us/weinstein-phone-judge-recusal-request/index.html

[11] https://www.usatoday.com/story/entertainment/celebrities/2020/01/08/harvey-weinstein-trial-day-3-jury-screening-new-york/2836321001/

[12] https://hbr.org/2019/09/the-metoo-backlash

[13] https://hbr.org/2019/09/the-metoo-backlash

[14] https://www.latimes.com/california/story/2020-01-06/harvey-weinstein-criminal-charges-los-angeles-prosecutors

Photo by Michelle Ding on Unsplash

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