The past couple years have been filled with more newsworthy stories than we know what to do with. Sifting through the countless moments of shock and despair has become a disheartening experience for most. Yet Harvey Weinstein’s conviction deserves recognition as a story of change and hope for survivors of sexual and gender-based violence everywhere,[1] and thus is still worthy of discussion more than a year later. The iconic Hollywood movie-mogul was sentenced in February 2020 to twenty-three years in prison as the result of the six courageous women who testified against him.[2]
A Manhattan jury convicted Weinstein of two counts: criminal sexual assault in the first degree and rape in the third degree.[3] The two respective victims were Miriam Haley, Weinstein’s movie production assistant, and Jessica Mann, an aspiring actress.[4]
Weinstein was acquitted on the three remaining charges: two charges of predatory sexual assault and one charge of first-degree rape.[5] To convict on the predatory sexual assault charge, the jury would have had to conclude that Weinstein had raped Annabella Sciorra in the early 1990s at her Gramercy Park apartment, but the jury could not come to an unanimous decision.[6] The final charge was first-degree rape for an alleged attack on Jessica Mann in 2013; the jury returned a verdict of not-guilty.[7] Convicting Weinstein of first-degree rape would have “required the state to prove the use of force or threat during the attack. The jury instead [convicted Weinstein] of third-degree rape, which required . . . only that [Mann] did not consent.”[8] Weinstein’s trial included testimony from “three other women – Dawn Dunning, Tarale Wulff, and Lauren Young.”[9] As part of their testimony, the three women explained that they “were aspiring young actresses [and] that [Harvey] Weinstein [had] lured them into private meetings [under the guise of] discuss[ing] their careers [and] sexually assaulted them [instead].”[10] Although Weinstein was not charged in those cases because of the statute of limitations and lack of jurisdiction, Justice Burke allowed for the testimonies “to establish a pattern of behavior.”[11] Additionally, prosecutors detailed four decades of sexual assault accusations against Weinstein.[12]
Arguably, Weinstein’s conviction would not have happened without the influence of the #MeToo Movement, which was founded by civil rights activist Tarana Burke.[13] “[Burke’s] vision from the beginning was to address both the [lack of] resources for survivors of sexual violence and to build a community of advocates” and survivors to lead the way in “interrupt[ing] [the damage of] sexual violence in their communities.”[14] While Burke’s original intention with #MeToo was not to shine a light on the sexual abuse prevailing through the power inequalities in Hollywood, the movement nevertheless found its way to Harvey Weinstein’s victims.[15] In 2017, The New York Times posted an article detailing how Harvey Weinstein had been paying off sexual harassment accusers for decades.[16] While more Hollywood women shared their stories of abuse from Weinstein, #MeToo skyrocketed on social media.[17]
The Hollywood community believed that Weinstein’s conviction could never and would never happen.[18] Weinstein’s predatory behavior was well known and even publicly referenced, sometimes discretely on talk shows, and other times overtly, like on an episode of 30 Rock or Seth McFarlane’s 2013 Oscar nominee announcement.[19] 30 Rock used the following joke: “[s]he’s ‘not afraid of anyone in show business because she ‘turned down intercourse with Harvey Weinstein on no less than three occasions, out of five.’”[20] McFarlane’s Oscar comment was: “Congratulations, you five ladies no longer have to pretend to be attracted to Harvey Weinstein.”[21] These two examples of blatant knowledge of Weinstein’s wrongdoing at the time made for seemingly harmless jokes, but today read as eerily grim. Furthermore, the portrayal of Weinstein’s predation on women as a joke illustrates how deeply rooted rape culture is in both Hollywood and American society.
The publicity of Weinstein’s conviction and the simultaneous justice brought to his victims illustrates how much gender-based sex-crime laws have evolved in the last century.[22] Manhattan district attorney, Cyrus R. Vance Jr., said Weinstein’s conviction helped to “pull our justice system into the 21st century by declaring that rape is rape and sexual assault is sexual assault, no matter what.”[23] This seemingly common sense statement is actually infuriatingly radical upon examining the history of American sex-crime laws.
The history of sex-crime law involves a consistent bias against women.[24] Our laws evolved from English common law, where “rape was a crime against property.”[25] A woman’s virginity was considered her father’s property, to be controlled economically however he saw fit; consequently, “rape was originally . . . the theft of . . . property, [and] [t]he bodily integrity of the woman was [entirely] irrelevant.”[26] Focusing sex-crime laws around the economic interests of men created a severe distrust of women’s sincerity around rape and sexual assault accusations.[27] Thus, these laws have evolved to include a unique set of procedures where the victim carries the heavy burden of proving his or her sincerity.[28] These procedures are comprised of “requiring prompt complaint to law enforcement; requiring the corroboration of the victim’s testimony by independent testimony and/or evidence of serious physical injury; allowing information regarding the victim’s past sexual history and character to be admitted into evidence; and permitting cautionary instructions which impugned the victim’s credibility to juries.”[29] These procedures disadvantage and stigmatize rape victims, making a successful prosecution of an alleged sexual-offender particularly difficult, and even more so when that offender has financial power and an elite social status.[30]
The cultural acceptance of sexual harassment in women’s lives also attributed to the overall difficulty of Weinstein’s victim’s fight for justice. Gender-based sexual abuse and harassment pervades all spheres of women’s lives.[31] One study found that fifty-two percent of middle and high school aged girls reported that they had already experienced at least one out of a list of sexual harassment behaviors.[32] Women have reported experiencing sexual harassment on the street, in their workplace, online, in school, and anywhere that women live their lives.[33] The commonality and consistency of sexual harassment in women’s lives engrains it in our culture.
Another important aspect of sexual harassment and assault that is rarely discussed is where this violence occurs. While most women in today’s world can understand and acknowledge that sexual harassment and the male gaze can happen anywhere, the discussion of violence against women and sexual assault focuses predominately on a woman alone in the dark suddenly attacked by a stranger.[34] However, “about 70 percent of sexual assaults occur in someone’s home and involve a person known to the victim. They are often related to social occasions like parties, dates or a gathering of friends.”[35] This leads to confusion for the victim while processing her trauma, and oftentimes results in victims continuing a relationship with their abuser.[36] Processing trauma in this way previously prevented women from receiving justice, but not anymore.
Harvey Weinstein’s recent conviction gives us hope that more women now have a shot at fighting for justice. In a touching tribute to rape survivors everywhere, “the Manhattan district attorney, Cyrus R. Vance Jr., . . . applauded the judge’s decision and thanked the women who helped to put Harvey Weinstein behind bars.”[37] He stated before the Court, “[these women] refused to be silent and they were heard. Their words took down a predator and put him behind bars and gave hope to survivors of sexual violence all across the world.”[38]
Due to his power, status, and the uniqueness of his accusers, Harvey Weinstein’s conviction has changed the dialogue around sex-crimes victims throughout the world.[39] For years, to prevail on sex-crime counts, the victim needed to be perfect to get justice.[40] To have your story believed you had to file your complaint quickly, have corroborating testimony, a rape kit, a clean sexual history and unquestionable character, making reports of sexual abuse, and actual cases making it to trial, few and far between. Haley admitted, “I showed up not as a perfect victim but as a human being.”[41] Harvey Weinstein forcibly performed oral sex on Haley, a violating act which was until recently not considered to be rape.[42] Haley also attempted to continue her professional relationship with Weinstein following the attack.[43] Similarly, Jessica Mann had consensual sex with Harvey Weinstein, but she was also raped by him.[44]
For years, women like Mann and Haley had cases deemed too messy or imperfect to go forward to trial;[45] cases that involved consensual as well as non-consensual intercourse, no rape kits, late reporting, or “he said, she said” testimony.[46] Harvey Weinstein’s conviction is enlightening society to the fact that the phrase “believe women” is not an irrefutable argument that women never lie, but an acknowledgment that for years the judicial system has behaved as if lying is typical of women.[47] “Believe women, rather than just defaulting to believing the men who claim the sex was consensual, she asked for it, she was wearing a skirt.”[48]
Harvey Weinstein’s conviction says to the world that unwanted sexual advances are not okay, no matter who you are. It says that victims’ stories can be messy, and that does not invalidate them. It says that imperfect victims are still victims. And, it says that men will be held accountable for their actions. Let us remember the courage of Jessica Mann and Mimi Haley who made history in 2020 by commanding justice for imperfect survivors everywhere.
* Olivia Graham, J.D., expected May 2022, The George Washington Law School. Thank you to the bold souls before me who dared to believe that life was meant to be more beautiful. Keep fighting.
[1] See Audrey Carlsen, et al., #MeToo Brought Down 201 Powerful Men. Nearly Half of Their Replacements Are Women., N.Y. TIMES (Oct. 23, 2018), https://www.nytimes.com/interactive/2018/10/23/us/metoo-replacements.html.
[2] See Jan Ransom, Harvey Weinstein’s Stunning Downfall: 23 Years in Prison, N.Y. TIMES (Mar. 11, 2020), https://www.nytimes.com/2020/03/11/nyregion/harvey-weinstein-sentencing.html.
[3] See Azi Paybarah, Harvey Weinstein: Guilty, N.Y. TIMES (Feb. 25, 2020), https://www.nytimes.com/2020/02/25/nyregion/harvey-weinstein-guilty.html; see also Jan Ransom, et al., Full Coverage: Harvey Weinstein Is Found Guilty of Rape, N.Y. TIMES (Feb. 24, 2020), https://www.nytimes.com/2020/02/24/nyregion/harvey-weinstein-verdict.html.
[4] Ransom, supra note 2.
[5] Paybarah, supra note 3.
[6] See Ransom, supra note 2.
[7] See id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] See id.
[13] See Tarana Burke, History & Vision, ME TOO., (Apr. 1, 2020), http://web.archive.org/web/20200331182219/https://metoomvmt.org/about/.
[14] Id.
[15] See id.
[16] See Jodi Kantor & Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades, N.Y. TIMES (Oct. 5, 2017), https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html.
[17] See Monica Hesse, Harvey Weinstein’s Conviction Allowed Victims to Have Messy Stories. That’s Revolutionary., WASH. POST (Feb. 24, 2020), https://www.washingtonpost.com/lifestyle/style/harvey-weinsteins-conviction-allowed-victims-to-have-messy-stories-thats-revolutionary/2020/02/24/463ae858-54c6-11ea-929a-64efa7482a77_story.html.
[18] See id.
[19] See Anna Menta, All the Times Hollywood Hinted at Harvey Weinstein’s Sex Scandal in Film and Television, NEWSWEEK (Oct., 12, 2017), https://www.newsweek.com/2017/10/27/hollywood-references-harvey-weinstein-683280.html.
[20] Id.
[21] Id.
[22] See CAROL E. TRACY, ET AL., RAPE AND SEXUAL ASSAULT IN THE LEGAL SYSTEM 3-7 (2012), https://sites.nationalacademies.org/cs/groups/dbassesite/documents/webpage/dbasse_080060.pdf.
[23] Paybarah, supra note 3.
[24] See Tracy, supra note 22, at 4-7, 10-12.
[25] Id. at 4.
[26] Id.
[27] See id. at 4-5.
[28] See id. at 5-6, 10-12.
[29] Id. at 5.
[30] See id. at 5, 10-12.
[31] See Shawn Meghan Burn, The Psychology of Sexual Harassment, 46 TEACHING PSYCHOL. 96, 97-98 (2019), https://journals.sagepub.com/doi/full/10.1177/0098628318816183.
[32] See id. at 97.
[33] See id. at 97-98.
[34] See Sheryl Ubelacker, Experts Say Socialization Can Affect How Women Deal with Sexual Assault, CANADIAN PRESS (Feb. 11, 2016, 8:17 AM), https://atlantic.ctvnews.ca/experts-say-socialization-can-affect-how-women-deal-with-sexual-assault-1.2773507.
[35] Id.
[36] See id.
[37] Ransom, supra note 2.
[38] Id.
[39] See Hesse, supra note 17.
[40] See id.
[41] Shayna Jacobs, Harvey Weinstein Sentenced to 23 Years in Prison for Sexually Assaulting Two Women in New York, WASH. POST (Mar. 11, 2020), https://www.washingtonpost.com/lifestyle/harvey-weinstein-sentence-trial-sexual-assault/2020/03/11/398f2cf6-630b-11ea-acca-80c22bbee96f_story.html.
[42] See id.; Tracy, supra note 22, at 3-4, 13-34.
[43] See Jacobs, supra note 41.
[44] See Hesse, supra note 17.
[45] See id.
[46] See id.
[47] See id.
[48] Id.
Photo illustration by Lyne Lucien/The Daily Beast.