Weinstein and the Verdict on Male Responsibility
Weinstein’s defense lawyer Donna Rotunno contends that her client committed sins, not crimes. But it’s for the jury to decide if he’s legally entitled to his sins.
In the coming days, a jury of five women and seven men will deliver a verdict in the case against Harvey Weinstein, in what is being widely considered the first legal test of the #MeToo movement. Of the 90+ women who made accusations against Mr. Weinstein, only two accusers’ claims are being tried in Manhattan’s criminal court. Miriam Haleyi, a former production assistant, alleges that Mr. Weinstein forced oral sex on her in his SoHo apartment in 2006, and Jessica Mann, then an aspiring actress, alleges that Mr. Weinstein forcibly blocked the door to a hotel room and raped her in 2013.
In addition to testimony from Haleyi and Mann, actress Annabella Sciorra testified to an assault in 1993 or 1994, in which Mr. Weinstein showed up at her apartment, pushed past her, physically overpowered her, and sexually assaulted her. If convicted of the charges brought on behalf of Ms. Mann and Ms. Haleyi, Mr. Weinstein could face a maximum of 25 years in prison. If in addition the jury finds that Mr. Weinstein is guilty of assaulting Ms. Sciorra, the charge will be predatory sexual assault, which could carry a life sentence.
Three additional women, so-called “prior bad acts” witnesses, also testified to being assaulted by Mr. Weinstein. Before the attacks occurred, all of these women had met with Weinstein in a professional context. Often they were asked to meet Weinstein in a hotel room or other private place, where they were sexually assaulted or, in one instance, raped.
That all of these women took the opportunity to meet with one of Hollywood’s titans, and in some cases humored or ignored his advances in hopes of getting a foothold in the entertainment industry, allowed Weinstein’s lead attorney, Donna Rotunno, to paint these women as opportunists: women who engaged in consensual sexual relationships to get ahead. Not only did they use Harvey, she contends. They were now capitalizing on the #MeToo movement. Several of the alleged victims were questioned as to their motive for hiring plaintiff attorney Gloria Allred, implying it was in hopes of obtaining a settlement.
Rotunno has received rampant media coverage, as Weinstein’s mouthpiece and critic of the #MeToo movement, and as the subject of scathing op-eds. Ms. Rotunno, who describes herself as the “ultimate feminist,” attacked the prosecution by appealing to female autonomy in her closing statement:
“They have created a universe that strips adult women of common sense, autonomy, and responsibility… In their universe, women are not responsible for the parties they attend, the men they flirt with, the choices they make to further their own careers, the hotel room invitations, the plane tickets they accept, the jobs they ask for help to obtain.”
In Ms. Rotunno’s universe, leveraging one’s femininity and failing to appreciate the risk therein makes one complicit in one’s own rape.
She made a choice, Rotunno’s courtroom refrain, implicitly and falsely suggests that there is a surfeit of other, better choices available to women when in fact, there isn’t. The reality is that most institutions, Hollywood in particular, are racist and sexist. Look no further than the latest Oscars backlash, which brought to light that only five women have ever received nominations for best director. That’s fewer nods than director and statutory rapist Roman Polanski, who’s received six. Men dominate the film industry, and when an actress’s sex appeal is part and parcel of what she has to market, the bar for acceptable male behavior is low indeed.
Tolerating sexism is not just for aspiring actresses like Jessica Mann, but for established ones as well. Gwyneth Paltrow, Angelina Jolie and Selma Hayek also took meetings with and were subsequently harassed by Mr. Weinstein. Oscar winning actress Lupita Nyong’o, who was propositioned and threatened by Weinstein in 2011, said in a New York Times op-ed, “I was entering into a business where the intimate is often professional and so the lines are blurred.” Many of Weinstein’s accusers say that he told them that sleeping with him would give them the keys to the castle, then rattled off famous actresses who had done so. Weinstein himself played on women’s perceived lack of choices. Sleeping your way to the top may be a reality as well as a cliché, but certainly it’s not the only way to succeed in Hollywood. But to say that women could simply avoid Mr. Weinstein, and predatory men in general, is to pretend we live in a universe where women have the same choices available to them that men do. As long as men like Weinstein are the gatekeepers in Hollywood, women must either accept the risks of entry, or stay out.
In spite of six strikingly similar testimonies of Weinstein’s manipulation, intimidation, and assault, it’s not difficult to imagine a jury buying in to Ms. Rotunno’s line of defense. Both Mann and Haleyi maintained relationships with Weinstein following their assaults. Both women admitted to having more-or-less consensual sexual relations with Weinstein. The defense pointed to numerous friendly communications between the accusers and the accused.
Ms. Haleyi signed an email “Lots of love, Mimi.” In another email, Ms. Mann suggests that Harvey should meet her mother. Rotunno even displayed a diary entry of Haleyi’s that read, “I love love. I heart New York. I heart stuff.” “Things you draw when you are in a good mood?” Ms. Rotunno asked. The defense was a collage of emails, text messages, and date book and diary entries depicting how victims shouldn’t act. Would a real victim love love, New York, or stuff?
Ms. Rotunno’s appeals to appropriate victim behavior recall a time before #MeToo, when rape required an unknown assailant and use of physical force. This narrative has since been called out for the myth that it is. We now know that most women know their assailants, that many maintain contact with them. We know that most rape victims do not fight back — that aside from fight or flight, there is a third common autonomic response commonly known as “freezing.” We know that women who don’t fight back are less likely to label the experience as rape. We know that sexual assaults are widely underreported, and that the incidence of false reports is incredibly rare. We know that traumatic events impair memory storage in the brain, that while peripheral details may be lost, the central details stay with victims for decades. We know that memory recall immediately following traumatic events is unreliable. This is why many police manuals advise postponing interrogation of police officers following an on-duty shooting. They know the story will change.
The New York District Attorney’s office is taking a risk in bringing to trial the cases of Miriam Haleyi and Jessica Mann, two imperfect victims, who as it turns out are representative of what actual victims look and act like. The prosecution called forensic psychiatrist Barbara Ziv to counter the myth of the perfect victim. “There are a whole range of behaviors, none of which tells you whether a sexual assault occurred,” Ziv said in court. She also testified that victims, in an effort to normalize what happened to them, often stay in contact their accusers. They try to “put it in a box and forget what happened,” because they don’t want to “make it worse.” At the end of the day, victim behavior doesn’t disprove rape.
“Jessica Mann could have been head over heels in love with Harvey Weinstein. She could have had his name tattooed on her arm,” prosecutor Joan Illuzzi-Orbon drove home in her closing statement, “That still doesn’t change that he raped her.” Yet in the past, these types of cases rarely resulted in criminal charges, because absent physical evidence and clear motive, whether a sexual assault actually occurred depends on who you believe. Rape boils down to credibility: will the jury believe Miriam Haleyi and Jessica Mann?
The Weinstein trial is the first legal battle of the #MeToo movement. Not only is it a test of the cri de Coeur to believe women. The trial could set a precedent that redefines what constitutes sexual assault in the first place. Most of the charges against Weinstein entail the use of “forcible compulsion,” which typically means physical violence, evidenced by scratches or bruising, or mortal threat, say with a knife. That the #MeToo movement has already permeated the legal system is evidenced in the fact that “forcible compulsion,” in the cases of Haleyi and Mann, meet a much lower threshold. Forcible compulsion could mean trapping a woman in a room, backing her into a corner, pushing her onto a bed. A guilty verdict would expand the range of behavior for which men are held accountable.
If the criminal charges against Weinstein are evidence of a sea change in how sexual assault is viewed by the criminal justice system, we can view Donna Rotunno’s media campaign discrediting the #MeToo movement as an attempt to turn back the tide. In an appearance on the New York Times podcast The Daily, Ms. Rotunno, when asked if she had ever been sexually assaulted, responded, “I have not. Because I would never put myself in that position.” This kind of victim blaming is part of a broader social trend that puts women at fault for their unequal treatment. The Lean In movement, in its attempt to instruct women on how to break through the glass ceiling, encourages women to act more assertively and aggressively — in other words, adopt the traits of their successful male co-workers. But the notion that gendered traits, and not gender itself, are to blame for inequality is false. Women who act like men still aren’t as successful as their male counterparts. Often they are punished for stepping out of line. Donna Rotunno is a perfect example of the ire and criticism women are subject to when they are perceived as outspoken, immoral, bullying. Society still wants women to be agreeable and unassuming, to maintain the moral high ground. But facing an unexpected and unprovoked a sexual assault, they are to fight back, call out, act rationally and decisively. Afterward, they are to go directly to the police and cut off all contact with their assailant. In essence, the failure of women to act like proper victims is a failure to act like men.
Even if Ms. Rotunno would absolve all men under the banner of female accountability, when she imagines herself a man, she holds herself to a much higher standard. “If I was a man today in today’s world, before I was engaging in sexual behavior with any woman, today, I would ask them to sign a consent form,” she told The Daily podcast. Even in her thought experiment, she can’t escape the double standard, though in her line of work, she is well used to them. In an interview with Chicago Magazine, she recalls having to defend herself to other women. “The questions were all some version of ‘How can you stand by a man who has done such unspeakable things?’ These were questions they never would have asked a man.” But she also freely acknowledges when double standards play into her hand. “I have the ability to get away with a lot more in a courtroom cross-examining a female than a male lawyer does,” she says. “If I do it, nobody even bats an eyelash.” Likewise, positioning herself as a feminist and champion of female autonomy while simultaneously undercutting the #MeToo movement is something a male defense attorney couldn’t do without it being seen for the self-serving hypocrisy that it is.
In Ms. Rotunno’s spin on the #MeToo movement, men are the victims and women are false accusers who are automatically believed. She bemoans that convictions in the court of public opinion will undermine due process, turning her back on sexual assault’s long legal history so fast it’s a wonder she doesn’t have whiplash. (RAINN estimates that for every 1000 sexual assaults, 5 will result in felony convictions.) Rotunno is right that #MeToo has had a landslide victory in the court of public opinion. It’s easy to believe a story when there are 90+ people telling it. Common sense tells us where there’s smoke, there’s fire. But the fact remains that most #MeToo allegations will never have their day in criminal court. Most took place years and even decades before #MeToo, when women didn’t act like perfect victims. The alleged crimes either aren’t within the statute of limitations or don’t meet the burden of proof. When defense attorney Damon Cheronis asked Miriam Haleyi why she didn’t report her second alleged assault in 2006, she replied, “I didn’t physically resist, so I didn’t recognize that as an assault.”
In an interview with Gayle King for “CBS This Morning,” when asked if she was making it more difficult for victims of sexual assault to come forward, Rotunno replied, “No I would hope that I’m making it easier for them... I think that sort of weeding out the cases that don’t rise to the level of real assaults should help real victims.” But certainly Ms. Rotunno is not so naive. From her professional standpoint, there can be no real victims. She has defended men in 40 sexual assault cases, only 20% of whom, by her own estimate, are innocent. Of those cases, she’s only lost one. In fact, the only cases she refuses are ones in which consent is legally impossible — cases in which the defendant is an adult and the victim is a minor. Of course, Ms. Rotunno has every right to do her job and do it well. But if, through media appearances and messaging, she is allowed to define victim behavior in her own terms, so few cases will rise to the level of real assaults that she will shortly be out of a job. But Ms. Rotunno knows that #MeToo is ultimately good for business, as she quips, “It’s a hell of a time to do what I do.”
If nothing else, the Weinstein trial highlights how ill-equipped the legal system is to confront the changing definition of sexual assault. If rape is at its core a matter of consent, the burden to prove consent, or the lack thereof, lies with the prosecution. But absent eye witnesses and physical evidence, a defendant’s presumed innocence is almost impossible to disprove. A two-letter word is what separates an every-day act from a criminal one.
In her closing, Rotunno spuriously compared sexual assault to more tangible crimes. “Would you behave this way towards your kidnapper? If someone stole your wallet?” But unlike with kidnapping, relationship and motive are not determining factors in sexual assault cases. Unlike theft, what was taken cannot be located or returned. The question becomes how to prove beyond a reasonable doubt something that happened between two people, in private, within the context of human relationships, which are inevitably more complex than the legal system can accommodate, whose explanations require more nuance than a simple yes or no.
As Jessica Mann attempted to explain why she stayed in a relationship with Harvey Weinstein following her assault, she found it difficult to characterize the nature of her relationship without giving indirect answers or going outside the scope of the question. Finally, amid numerous objections from the defense, Judge James M. Burke intervened, instructing Ms. Mann to answer the question being asked and only the question asked, “Nothing beyond that. Alright? Understood?”
In frustration, Mann responded, “No not understood.”
Which led to a demonstration:
Burke: “What color is the sky on this planet generally?”
Mann: “Blue.”
Burke: “Great. You now understand.”
While she managed to appease the court, Ms. Mann’s answer is technically inaccurate. Leaving aside the sky’s range of daytime colors, and that it is most reliably black at night, when we are looking at a blue sky, what we perceive as blue is in fact violet. As light scatters when it enters our atmosphere, the shortest, violet, waves are the most common, but the cones in our eyes aren’t as sensitive to them. Moreover, we say that the sky is blue because we were instructed from a young age to do so. Because what we see doesn’t influence our understanding. Our understanding influences what we see.
Rotunno contends that her client committed sins, not crimes. But it’s up to the jury to decide whether his sins are crimes. If responsibility in sexual assault cases is balanced between two people, the charges brought against Mr. Weinstein are an attempt to shift the fulcrum. It’s time we ask ourselves whether men are legally entitled to these sins, and at what cost?
