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.