It has been nearly seven years since the #MeToo movement rocked social media, with millions of women posting publicly about their experiences of sexual assault in response to allegations that Hollywood producer Harvey Weinstein had committed predatory acts.
As a former New York sex crimes prosecutor and legal director for a Chicago nonprofit serving survivors of sexual assault, I spoke to many colleagues who hoped Weinstein’s criminal conviction in Manhattan would signal a new era for the criminal justice system’s response to sexual assault.
The recent decision by New York’s highest court that reverses Weinstein’s conviction delivers a crushing blow to that optimism and to survivors who seek justice here in Chicago and across the country. The decision will create a chilling effect for both prosecutors and survivors who seek justice from the criminal system. Weinstein remains in prison for a California conviction, yet that decision is also being appealed.
It is ironic at best that, in a case that inspired millions of women to speak openly about unreported sexual assaults — crimes they never sought justice for in large part because of our unresponsive, broken system — the court overturned this conviction on the grounds that jurors would not need additional testimony because they could get it right without it.
Despite the public outcry, prosecuting Weinstein was not easy. Sex crimes are notoriously difficult to prosecute because of widespread myths about rape, and Weinstein’s case had the potential to recall many of our most ingrained stereotypes about sexual violence.
The assaults were between acquaintances instead of strangers. Many of the victims continued to stay in touch with Weinstein, including one victim who later had a consensual relationship with him. These facts are hard for the average juror to understand. Many people still think rape usually involves a stranger in an alley, a victim who fights her perpetrator and is left with visible injuries. This is not the case, but the reality remains: Very few incidents of sexual assault lead to a conviction.
The Rape, Abuse, & Incest National Network (RAINN) estimates that out of every 1,000 sexual assaults, only 310 are reported to police, 50 lead to an arrest and 28 lead to a felony conviction. That’s less than 3%. In Chicago, research done by my team at the Chicago Alliance Against Sexual Exploitation found just 10% to 20% of sexual assaults reported to Chicago police have led to arrests.
New York law prohibits evidence of uncharged “prior bad acts” by defendants unless it is for a specific purpose; it cannot be included at trial only to show a defendant has a high likelihood to commit the crime. When courts decide whether to admit evidence of prior bad acts, they must consider if it will suggest to jurors that the defendant is more likely to have committed the charged offense because he did something similar in the past, which New York considers to be unfair to defendants.
Not all states agree: In Illinois, prior bad acts involving sex crimes are allowed to show the defendant has a “propensity” to commit sex offenses.
New York does allow prior bad acts to show a defendant’s intent. The Manhattan trial judge allowed prosecutors to introduce additional witnesses who were victimized by Weinstein, but whose cases were never charged to show Weinstein’s intent to commit sexual assault and that he could not have mistaken the acts as consensual. Weinstein’s defense repeatedly suggested the victims were actually the ones “manipulating” Weinstein into believing consensual sex would happen because the victims were in contact with him and agreed to go to hotel rooms with him. The additional witnesses’ testimony was crucial information that went to a central issue in the case: whether these encounters were consensual or whether they were truly sexual assault.
But the high court believed these additional witnesses were not needed to show that Weinstein intended to sexually assault the victims. The court reasoned if the jury believed the victims’ testimony that they said “no” and attempted to resist Weinstein, “no reasonable person would understand such behavior as having communicated anything other than their rejection of sexual activity.”
I would like to live in the world that the New York Court of Appeals describes, a world where people genuinely believe survivors. We do not. After a decade of legal advocacy for sexual assault survivors, I am convinced the high court dramatically underestimated the complexity of sexual assault cases and overestimated how “reasonable people” interpret sexual advances, particularly where massive power imbalances exist. The jury could believe the victims’ testimony and still think Weinstein thought he was engaging in consensual sex, although the court naively dismisses this possibility as “inconceivable.” In fact, that outcome was entirely likely given the defense’s questioning, so the majority’s conclusion that the additional testimony was “irrelevant” is inexplicable.
Our culture routinely gives men who cause harm the benefit of the doubt — that they were simply confused or there were mixed signals or that they truly thought something was consensual. I see it every day in my work.
By overturning Weinstein’s conviction, the court sends a powerful signal. Survivors will be more reluctant than ever to report sexual assault cases. They might reasonably ask: If even someone as monstrous as Weinstein was not convicted, how could they possibly hope for justice in their case? Prosecutors who were reluctant to charge difficult cases will now be less likely to proceed, even with multiple victims speaking out.
After witnessing the reversal of Weinstein’s conviction, in part due to use of testimony from victims whose cases were never charged, prosecutors locally and nationally will be reluctant to use this once-powerful evidentiary tool of “prior bad acts,” even in the most clear-cut cases, with devastating consequences for survivors.
Elizabeth Payne was a senior assistant district attorney in the Special Victims Bureau at the Brooklyn District attorney’s office. She is the legal director at the Chicago Alliance Against Sexual Exploitation and an adjunct law professor in Chicago.
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