By Jessica Sutton.
Harvey Weinstein’s New York trial wrapped up last week, with the jury finding the former Hollywood producer guilty of third-degree rape and first-degree criminal sexual act, but acquitting him of predatory sexual assault. The jury had a fraught deliberation of five days in length, pausing multiple times to ask for clarification, and at one point reaching what appeared to be a stalemate, with jurors divided on the outcome of the predatory sexual assault charge. Ultimately, Weinstein’s conviction on the lesser charges means he faces between 5 and 29 years in prison. This mixed victory is a cause for both celebration and concern. Weinstein will spend some time in jail, without doubt. However, the jury’s attitude to the more serious charges displays clear impact of rape myths, and the very disregard for the humanity of the complainants that I feared. Rape myths seem to be here to stay, and are a consistent barrier to accountability even in the supposedly enlightened #MeToo era.
Understanding the Verdict
The jury found Weinstein guilty of first-degree criminal sexual act for the assault on Miriam Haley, and also for the third-degree rape of Jessica Mann, defined as sexual intercourse with a person without their consent. However, the charge of first-degree rape failed, as the jury decided Ms Mann’s rape lacked the necessary context of force, coercion, or helplessness of the victim. This result is possibly due to rape myths concerning “real” rape victims “fighting back”. Jurors typically lack information around the diverse ways rape victims may respond to assaults, including “freezing” in self-preservation or shock, which Ms Mann described in her testimony. If the jury had convicted Weinstein on this charge, the maximum sentence would have been 26 years in prison.
Meanwhile, predatory sexual assault was the most serious charge, which requires prior commission of rape or criminal sexual act in the first degree. The rape of Annabella Sciorra, although unprosecuted, was presented as a basis for convicting Weinstein of predatory sexual assault. The jury needed to be satisfied that Weinstein committed first-degree rape against Ms Sciorra for the charge of predatory sexual assault to succeed on this basis. If the jury had found Weinstein guilty on this charge, he would have been subject to a period of imprisonment ranging from 10 years, to life in prison.
The reason the jury was unable to find Weinstein guilty of predatory sexual assault arguably lies in juror attitudes to Annabella Sciorra’s evidence. Ms Sciorra testified earlier in the trial that she was raped by Weinstein when he forced his way into her apartment in late 1993 or early 1994. This incident was unable to be prosecuted in isolation due to being outside the time limit prescribed by the statute of limitations. It is possible that confusion about why Ms Sciorra’s rape was not being prosecuted may have added to the jury’s distrust of her evidence.
During deliberations, the jury asked multiple questions concerning the testimony of Ms Sciorra, including reviewing the cross-examination. Ms Sciorra’s cross-examination evinced multiple application of rape myths by defence counsel, particularly the questions of whether she “fought him off” sufficiently for her story to be believed, why she couldn’t recall some aspects of the rape, and why she opened her door to Weinstein at the start of the incident. These three elements were emphasised in cross-examination, with the clear implication being that Ms Sciorra was lying about the non-consensual nature of the incident. The defence essentially argued that a “real rape victim” would never have voluntarily opened the door to Weinstein, and would have put more effort into finding an escape route or physically resisting Weinstein. Similar issues were raised around Ms Haley and Ms Mann continuing to communicate with Weinstein after their assaults, with defence counsel alleging this meant that the incidents were part of consensual sexual relationships.
As women are stereotyped as “sexual gatekeepers”, the burden, in the eyes of jurors influenced by rape myths, fell on Ms Sciorra to make lack of consent clear, and show she did not “invite” the sexual assault. Whether Ms Sciorra behaved in a way which satisfies the misconceptions held by laypeople without any knowledge of sexual violence, should be irrelevant in a court of law. However, without judicial intervention to ensure the jury could separate fact from myth, the jury was unable to find Weinstein guilty of predatory sexual assault.
This is a clear example of the need for jurors to be insulated from damaging misconceptions about “real rape”. When a misconception is common in society, a majority of jurors may hold that belief and therefore produce a biased verdict. Rape myths are worryingly prevalent in society. Although research on this point is sparse, an Irish study indicates 40.2% of respondents think women often lie about being raped, nearly 30% believe women invite rape via revealing clothing, and a similar study in Victoria showed 44% of respondents think rape is committed in response to uncontrollable sexual desire, and therefore perpetrators are less responsible.
Rape myths swaying juries and resulting in more not guilty verdicts is a pervasive problem in all legal systems. It is small wonder then, that in light of juries’ reluctance to convict, the New Zealand Law Commission advocated for a specialist sexual violence court, and also argued that sexual violence cases may simply be too complicated for laypeople. Another possible solution is for experts in sexual violence to be integrated into rape trial juries, to counter-balance biased jurors. This is a way in which jurors may be advised of inaccurate foundations for a verdict, while maintaining the democratic involvement and community development inherent in jury service.
Thus far, trial by jury for rape remains unchanged in most countries.
Is this a Victory?
The celebration in the media following the guilty verdict is encouraging, however it must be remembered that this is a partial victory at best. Depending on sentencing, Weinstein could receive as small a sentence as 5 years in prison. Without conviction of Weinstein for predatory sexual assault, his devastating impact as a sexual predator is minimised. Further, the decision of the jury suggests that they relied on basic misconceptions about sexual violence in reaching their verdict, meaning that the credibility of Ms Sciorra, Ms Mann, and Ms Haley was improperly undermined. While the bringing to justice of a powerful sexual abuser is a cause for celebration, the quality of that justice must also be questioned. Weinstein’s lawyer has already confirmed that he will be appealing his conviction.
At the very least, Weinstein will go on to face charges in Los Angeles. Whether the same flaws will be demonstrated in that trial remains to be seen, however, one of the complainants’ lawyers has already stated that “not a single email exists” between his client and Weinstein, implying that the lack of communication between them will bolster their case. The important point, is, of course, that it shouldn’t matter. But until some meaningful attempt is made to regulate juries and rape myths, “what was she wearing?”, “why did she keep talking with him?” and “why didn’t she fight back?” will continue to be painfully familiar rhetoric in rape trials globally.
Nevertheless, we must not lose sight of the small successes. Despite these prejudices and obstacles, the complainants and witnesses secured a conviction. Until there is positive change, may we all be inspired by the courage of the women involved in this trial, to keep speaking truth to power.
 Joanne Conaghan and Yvette Russell “Rape Myths, Law, and Feminist Research: ‘Myths About Myths’?” (2014) 22 Fem Leg Stud 25 at 39.
 H McGee and others “Rape and Child Sexual abuse: What Beliefs Persist About Motives, Perpetrators, and Survivors?” (2011) 26(17) J Interpers Violence 3580 at 3593.
 Natalie Taylor Juror Attitudes and Bias in Sexual Assault Cases (Australian Institute of Criminology, 2007) at 6.