Following the Weinstein Conviction Prosecutors Can and Should Pursue Cases Without the Perfect Victim.
After decades of open secrets, then blockbuster reporting in 2017, Harvey Weinstein was convicted this week of committing a first-degree criminal sexual act and third-degree rape. What was different about this case from many others was that the evidence included witnesses with complicated relationships and not a lot of physical evidence to prove sexual assault. The victims didn’t go straight to police (most victims don’t), and the two main victims kept up their relationships with Weinstein after he assaulted them (some victims do). In response, Weinstein’s defense was to put #MeToo on trial, and he failed. This tells us that prosecutors can and should do more to bring cases that don’t have the perfect victim. Expanding the cultural understanding of who can be a victim of sexual violence, and what protections are due to them, is an important feature of growth since Tarana Burke started the #MeToo movement in 2006.
Many experts on sexual assault have noted how unusual the case was in its lack of physical evidence. The prosecution relied on the testimony of victims, without substantial forensic evidence. Further, the two main witnesses, Miriam Haley and Jessica Mann had ongoing relationships with Weinstein after he committed criminal sexual assault against each of them. The question for the jury, and for our culture, was: can you prove sexual assault in that context? The answer is yes.
Weinstein’s conviction shows us that jurors are willing to accept a nuanced understanding of what sexual assault is, including that sexual assault happens within established relationships — friendships, dating, workplace colleagues and others. According to CDC research, of women in the United States, 43.6% have experienced sexual violence, and 18.3% have experienced sexual violence at the hands of an intimate partner. This is not news to those who study sexual assault, but the understanding of sexual assault within established relationships is not widely accepted in popular culture.
Prosecutors can successfully bring cases where victims testify without corresponding physical evidence to prove sexual assault. Bringing a sexual assault case on the basis of witness testimony alone has been unusual in the past. The prosecution added testimony of four women beyond the Haley and Mann. The other witnesses, Annabella Sciorra, Dawn Dunning, Tarale Wulff, and Lauren Young, testified to establish a pattern of behavior by Weinstein in attacking women. By presenting the testimony of six women, the prosecutors used a tactic that established a pattern of behavior, similar to the one used in the second sexual assault trial of Bill Cosby where five women testified against him. The jurors found the witnesses sufficiently credible to find Weinstein guilty beyond a reasonable doubt of two of the five charges brought against him.
Prosecutors can also bring more complex cases because, in this instance, the jury rejected the outdated victim-blaming arguments. Defense counsel used a variety of antiquated arguments in the courtroom and in the media to put #MeToo on trial and claim that Weinstein was the victim of cunning women looking to exploit him for power and access, and that these women had no risk to themselves in coming forward. The jurors rejected these arguments. Even more surprising was the argument that being sexually assaulted was a choice that women make. When asked in an interview whether she had ever been sexually assaulted, defense counsel Donna Rotunno replied no, “because I would never put myself in that position.” Rotunno argued in the trial that women are responsible for what happens to them when, for instance, they go to meetings in hotel rooms, that women must “start taking on equal risk.” The jury rejected these arguments, too.
As his story unfolded over the years, the response to Weinstein’s crimes has been a bellwether for the credibility of women who accuse men of sexual misconduct. Weinstein’s conviction shows that we are ready to engage with deeper understandings of how trauma affects victims of sexual assault, how they can keep contact with the people who hurt them deeply.
The prosecution’s win was also a rejection of the argument that a victim is responsible for being raped. The person who has an obligation to prevent rape from happening is the one who would commit it, never the victim. It is never a victim’s responsibility to prevent rape. The drive to prevent sexual assault needs to happen with those who are responsible for sexual assault.
What made this case different from other sexual assault cases was that women were believed when they said he assaulted them, and that rape prosecutions that don’t have the ‘perfect victim’ can still be brought — and won.
Audrey Roofeh is the CEO of Mariana Strategies LLC, a workplace culture consulting firm based in Washington, DC.