Tuesday Talk*: Is Weinstein A Watershed?

It’s almost as if America’s Dad, Bill Cosby, was never convicted, and yet the conviction of Harvey Weinstein for two of the five counts with which he was charged, Rape in the Third Degree (a Class E non-violent felony) and Criminal Sexual Act in the First Degree (a Class B violent felony), is held out as the case where everything changed.

What does the hard-won, long-overdue conviction of Harvey Weinstein demonstrate?

It shows how difficult it can be to bring abusers to justice, particularly when they are wealthy and powerful. It shows how much the #MeToo movement has changed American life. And it shows how far society still has to go.

How a conviction shows “how far society still has to go” seems to be a curious logical gap, but more to the point, a criminal conviction is supposed to show that a crime was committed and the accused was the person who committed the crime. What a conviction is not supposed to show is that a defendant was convicted because a movement “changed American life.”

Mr. Weinstein’s prosecutors were able to break through a barrier common to many assault cases, a lack of physical or other corroborating evidence. And they also overcame another, even more fundamental barrier: basic mistrust of women alleging sexual assault.

In most criminal prosecutions, a lack of evidence is a good indicator that a defendant should not be convicted. As for the “fundamental barrier” or trusting women accusers, there are two rather huge gaps to be addressed. First, the jury acquitted on the most serious charges of Predatory Sexual Assault (a Class A-II felony), presumably finding the most high profile testimony, slipped into the trial via the old Molineax propensity gimmick, to not be credible. So much for actress Annabella Sciorra’s star power.

The second gap is between the credible testimony of a woman, what’s decried as “basic mistrust,” and the burden of proof of guilt beyond a reasonable doubt. The narrative is that a failure to convict reflects the patriarchal belief that women alleging sexual assault are lying, not to be believed. This is deep enough thought for social media, and apparently the New York Times editorial board, but for lawyers, the issue isn’t belief, but sufficiency.

You can completely believe a witness, and yet still conclude that the prosecution has failed to meet its burden of proof. We don’t convict because we believe. We convict because we believe plus there is no reasonable doubt other than to believe.

Perhaps the most interesting takeaway from the conviction was offered by Irin Carmon at The Cut.

Instead, the jury accepted the complex set of facts prosecutors laid out, that Haleyi and Mann could be raped or sexually assaulted by Weinstein on one day and consent to sex with him or send him a warm note another — out of fear or denial, or out of deference to Weinstein’s economic power over them.

Whether the contentions of the prosecution are properly characterized as a “complex set of facts” or a narrative of rationalizations is a matter of whether facts are actual things or a litany of excuses.

The longstanding ordering of society has required women to stay on the correct side of male power. Jurors were asked to believe a relatively new, and radical, accounting of human relations: That it is precisely what we take for granted as the status quo — powerful men trading power and influence for sex, with or without additional force — that must be rejected.

This may be correct, although we’ll never know with any certainty.** But if so, was Harvey Weinstein convicted for a new type of sexual offense, exploitation of the power dynamic? If so, what does this portend for asymmetrical sexual encounters, where one participant either holds, or can be made to appear to hold, some greater power than the other, such that years later it overcomes all evidence to the contrary to establish that consent, even if transactional, could not have been freely given? If that’s the new theory of prosecution, then it is, indeed, a watershed verdict.

*Tuesday Talk rules apply.

**While it’s become de rigueur for jurors to give interviews, write an op-ed, even a book, to tell the secrets of why the jury did what it did, these tell-alls tend to be about what one juror wants it to be about rather than what it was actually about. They should be taken with a grain of salt.

29 thoughts on “Tuesday Talk*: Is Weinstein A Watershed?

  1. albeed

    “Instead, the jury accepted the complex set of facts prosecutors laid out, that Haleyi and Mann could be raped or sexually assaulted by Weinstein on one day and consent to sex with him or send him a warm note another — out of fear or denial, or out of deference to Weinstein’s economic power over them.”

    What this means is never, ever piss off the wife.

  2. Guitardave

    One persons unbridled desire and bad decisions, is now an opportunistic butt-heads crime. Got it.
    Now that they broke thru that pesky “evidence barrier”, its a good thing they’re getting rid of all those non-violent drug offenders cause they’re gonna need the space.
    When it comes to the sentence, i checked with the lovely souls in the Twittersphere, and it seems…

  3. B. McLeod

    This case is a more concrete illustration of the impact of the Zivian fake “science.” Cosby’s case was complicated by his prior deposition, an error that Weinstein avoided. But the Zivian premise that gaps and inconsistent statements merely establish rape victimhood interfered with the ability to defend based on accusers’ credibility issues. As courts continue to allow this bullshit to be handed to jurors at the start of the case, defendants will be behind the 8-ball from the outset. Especially where the defendant does not testify. It transforms the case from a they said/he said to an unimpeachable they said. Weinstein was lucky here to the extent that some aspects of Annabelle Sciorra’s credibility gaps were not covered by Ziv’s “blind expert” power-point presentation on “rape myths” (though Ziv will likely shore up her slides for future cases).

      1. B. McLeod

        Only in the sense of “historical significance.” She has ushered in a field of fake expertise that may fundamentally change the calculus on whether defendants have to testify to survive sexual assault cases. Possibly even that will not be enough, as the defendants will not be allowed “experts” to cover their own gaps and inconsistencies, nor to explain how aspects of their conduct show they are falsely accused.

  4. John Barleycorn

    What is it with criminal defense lawyers these days?

    “We need to talk about stroller glides Harvey. The medical gray stubs that came with the-adjustable legs- unit we got you might send the wrong message about your penis. The team has talked it over and you need to go with yellow tennis balls.”

    WTF!!!??? Seriously!? You guy really need to get the fuck out of the house more often…. You do know that you don’t even have to special order NOVA Walker Glide Skis in black anymore right? They are right there in every corner drug store in America.

    Fuck even the tailor could have told you that, along with the phone numbers of a few “custom” medical device shops in town. Must be CDL’s don’t tip anymore or something???

  5. rxc

    We are getting to the point where any guy who thinks with his brain, rather than his other principal organ, has got to come to the conclusion that the other organ should never be indulged, ever again. It is too dangerous, possibly leading to a long residence in an institution where a third organ gets a LOT more action than the others.

    It could result in extinction of the species, but if so, then we will be the first species to have willed ourselves to extinction. Or maybe only the really stupid will breed, which will have a very bad effect on the women.

    1. B. McLeod

      That probably overstates the impact of this case. I think the main signal here is that certain, unwritten exemptions people in the entertainment industry thought they had can no longer be relied upon.

      1. SHG Post author

        That probably understates the impact of this case. We know about celebs because the media makes a big thing about them. What we don’t hear about are the “little” people, but their lives matter a lot to them as well even if they don’t make the front page of the Times.

        1. B. McLeod

          It’s not an especially good development for Joe Sixpack, if a DA is hellbent on a conviction. On the other hand, they’re not going to hire Ziv and recruit a bevy of pile-on witnesses for every slob they have some reason to hate. This happened to Weinstein because he was Weinstein, and because he had a longstanding rep for casting-couch activities. Had he been some unknown slob, the case never would have been filed.

          1. rxc

            The unknown slobs are getting nailed in the halls of higher education, by people who carry mattresses around campus on their backs.

  6. Pedantic Grammar Police

    Since it’s Tuesday, let me put on my tinfoil hat and speculate. This case has nothing to do with Weinstein. He was a convenient vehicle. It is about setting a precedent for evidence-free prosecutions of people that we hate. Why do we hate them? Because the media told us to. Who will be the next Emmanuel Goldstein?

  7. Steve White

    The news reports I found on Ziv’s testimony did not indicate the defense did much to counter her claims of expertise, or directly counter her claims of “rape myths” such as, a woman would not maintain a relationship with her rapist (and would not want him to meet her mother maybe?).
    Since this seems to be crucial, and they had forewarning with the Cosby trial, did the defense try to discredit her? If she is discredited after the fact, can this be applied to Weinstein’s appeal?

  8. Chris Halkides

    Juror 11 either lied during voir dire, or she lied on her web site regarding her novel. I cannot understand why she was not excused. However, this may be a one-off event.

  9. Jardinero1

    For pretty young white girls experiencing regret about what might or might not have happened in their encounter with the male top .0001 percent, this likely represents a watershed. But for the rest of the sisterhood experiencing just garden variety, non-consensual, sexual violence(as well as the low brow perpetrators); nothing has changed at all.

  10. Louis Renault

    Yes, the conviction of Weinstein is a watershed. It is the most prominent example to date of a man being convicted in a court of law by the same kind weak, questionable evidence that has been used in college “judicial systems” to convict many male students of sexual assault. There are many cases of college males that were judged “responsible for” (i.e. guilty of) sexual assault despite maintaining friendly and often sexual relationships with their alleged victims after the supposed assault. In some cases, the women didn’t even want to see their alleged abusers convicted. These cases have been documented by KC Johnson, a professor at Brooklyn College, and others. The Weinstein case will encourage women who have experienced “regret sex” to file rape charges against their regretted partner(s).

  11. KP

    “asymmetrical sexual encounters, where one participant either holds, or can be made to appear to hold, some greater power than the other, ”

    Yes, ANY sexual encounter where only one participant has a vagina and has the power to say ‘yes’ or ‘no’..

  12. Guitardave

    Just heard Ms. Ziv got hit by a car yesterday.
    In spite of not being on board with her rap being some kind of substitute for evidence, I wish her well and hope she has a speedy recovery.
    But man….I’m just not enough of a ‘coincidence theorist’ to not wonder. Help me dear host….the rabbit holes gravity is p u l l i n g m e i n

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