Harvey Weinstein: J’Accuse

THERE IS A phrase that has emerged from the flames of the MeToo movement: ‘Believe women’. But what does that really mean? When it comes to allegations of sexual assault, ought women to be never questioned? With the courtroom, police station and even the intimate setting of a household often failing to take serious accounts of abuse seriously, is it necessary to set aside conventional due process and factual investigations? The light that shone on Harvey Weinstein’s enormous sexual predations almost singlehandedly put these questions at the centre of social debate across the world.

Three years or so after the MeToo movement first took off, we now have the Weinstein verdict. He had been tried and found guilty in the court of public opinion but the court of law would take its own time to respond to him. The final verdict—guilty on two counts (a criminal sex act in the first degree and rape in the third degree)—delivered a few days ago, reflects a new cultural understanding of the nature of sexual assault and the idea of consent. His trial eventually boiled to the accounts of two accusers, the alleged abuses of the others who testified having occurred beyond New York’s statute of limitations. And both those accounts swayed very far from how we would think rape and abuse victims naturally behave.
Neither account was a straight story of abuse, but entangled in a messy and confusing narrative. One of them, after Weinstein had forcibly performed oral sex on her in his apartment, kept in touch with him afterwards, and two weeks after the night of the attack, had sex with him. Under cross-examination, she said that even though she was sobbing during this encounter, she “didn’t physically resist.” She would send messages signed off with ‘lots of love’ and ‘peace and love’. In the other case, the woman entered into a three-year-long sexual relationship with Weinstein after her rape. She sent friendly e-mails and even suggested that he meet her mom. According to her, Weinstein was a “pseudo-father” who could “lift you up,” but also a man who constantly negotiated for sex and demanded obedience, making the aspiring actress fear physical or professional harm. According to reports analysing the verdict, the fact that Weinstein was found guilty of third-degree rape (which involves an assailant having sex with someone without consent) but not first-degree rape (which requires proving that ‘forcible compulsion’ was used in the attack), suggests that the jurors believed this accuser had not consented to the sexual encounter but that they did not believe she had been physically forced into it.

Both accounts do not naturally fit the template of more widely-held views on sexual assault. Can victims maintain relationships with their accuser after a sexual assault? Can consensual sex and sexual assault co-exist in a bizarre and abusive relationship? According to reports, prosecutors in the US never bring such stories of abuse to court in the fear that the accused would be acquitted.

According to Weinstein’s defence, all these consensual sexual encounters were now being “relabeled”. One of them, according to a New York Times report, at one point said in court, ‘You don’t tell him you love him in 2016 and you are tired of being a booty call in 2017 and call him a predator in 2020’.

There is more to come for Weinstein after this case. He will reportedly be appealing this verdict. And Los Angeles prosecutors are readying another trial, based on two other accusations.

What the Weinstein verdict does affirm clearly is that the collective understanding of consent and sexual assault is changing. There is room for a more nuanced understanding of victims and victimhood, power and relationships. The ideas this verdict supports will lead to changes in the US, in its justice system and larger societal dialogues, and move to other corners of the world, possibly even to India.

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