Laura Kipnis writes about what the Weinstein trial, which commences with jury selection today, means for culture, for feminism. And what it doesn’t.
Over 80 women have made public accusations against the former Hollywood mogul. In the post-#MeToo court of public opinion there are many for whom a charge sheet this extensive demands an automatic guilty verdict. In the courts of New York state, however, where due process prevails and there are only two official accusers, the outcome is less certain.
She’s right, even if she severely overstates the prevalence of due process and understates the number of “official” accusers.
Here’s what we know so far: One accuser alleges that Mr. Weinstein overpowered and raped her in a Manhattan hotel room in 2013; the other that he forced oral sex on her in 2006. It appears that three additional women will be allowed to testify as “prior bad acts” witnesses to bolster the prosecution’s case. So will the actress Annabella Sciorra, who claims that Mr. Weinstein overpowered and raped her in the 1990s.
New York lawyers will recognize the Molineux problem, that the testimony about prior bad acts is being introduced to creates trials within a trial, to bolster the accusations of the two crimes for which he’s on trial with uncharged crimes coming through witnesses for the purpose of showing propensity, bulking up the case so a jury would have to find all of them to be liars rather than just the two complaining witnesses to be wrong. This was how they beat Cosby, and it’s long been a tactic to take make a weak case stronger.
But as Kipnis notes, a conviction is still hardly guaranteed, because Harvey is so damn ugly.
If #MeToo exposed the extent to which media moguls and kingpins operate on the assumption that sexual payola is their due, it turns out that sexual shakedowns go on in every industry, from fast food joints to auto assembly plants to Wall Street.
Do the media moguls and kingpins assume “sexual payola is their due,” or is this a two-way street, with wannabe ingenues desperate for their big break more than thrilled to go down on Harvey if that gets them a chance to be a star? Now, as history is revisited and inner feelings of revulsion for putting Harvey where the sun don’t shine are now seen as oppression rather than an opportunistic choice, is the sexual contract null and void?
The issue in the court of social justice is guided by a narrative where the oppressed has no choice, and so her knowingly knocking on Weinstein’s door, well aware of what she was about to do, is no longer a matter of personal agency but a matter of power asymmetry. Weinstein had the power and she had her body.
Should that be the law? Back in 1975, there was a trial of a guy they called “The Snowman,” which may prove instructive.
This is about the purported need to save women from facile-tongued men who would undermine their right to exercise their sexual options based on legally-compelled factually-accurate representations. It brings new meaning to Meatloaf’s “Paradise.”
To prove its need, Sacks quotes from the 1975 New York decision in the trial of Marty Evans by Justice Edward Greenfield:
“So bachelors, and other men on the make, fear not. It is still not illegal to feed a girl a line, to continue the attempt [to obtain sex], not to take no for a final answer, at least not the first time. . . . [A] male [will] make promises that will not be kept, . . . indulge in exaggeration and hyperbole, or to assure any trusting female that, as in the ancient fairy tale, the ugly frog is really the handsome prince. Every man is free under the law, to be a gentleman or a cad.” (People v. Evans).
Marty Evans wasn’t much better looking than Harvey Weinstein. But he was a shameless liar, a liar extraordinaire, and made up for his pot belly with his silver tongue, persuading women to be bedded by bullshit. The argument today would be that he obtained consent by false pretenses, and therefore the consent was not given freely, knowingly, voluntarily. Justice Greenfield wasn’t too keen on the idea at Evans’ bench trial.
Every man is free under the law to be a gentleman or a cad.
And no one suggests that Harvey Weinstein isn’t a cad, but being a cad isn’t a crime. Do lies change the equation? Be careful before answering, as that double-edge sword can be very sharp. Even women occasionally lie in their sexual liaisons to get what they want, whether it’s spanx and false eyelashes or it’s the affections of a wealthy man. That may not be you, but it happens. Are they rapists too?
There are allegations against Weinstein that accuse him of using physical force to compel a woman to engage in a sex act with him, although they’re blunted by subsequent years of emails suggesting the existence of a close, maybe even loving, relationship. If the accusations are true, then that would constitute plain vanilla rape: you can’t use physical force to compel sex.
If so, then it should be proved by evidence, the testimony of the alleged victim, and the jury will then decide whether it’s sufficient to prove guilt beyond a reasonable doubt. Even Weinstein gets the benefit of the presumption, much as he doesn’t on social media or think tank mandarins for justice. Yet, that won’t be the case before the jury, which will include the Molineux propensity evidence to gild the lily and assure, to the extent possible, that social justice is done.