This Wall Street Journal article rightly calls the conviction of Harvey Weinstein on two of five charges a “landmark step” in the prosecution of alleged sex crimes. Whether the writers grasp the import of the verdict, I can’t say.
[L]egal experts said the verdict could have far-reaching consequences. It shows that juries in the #MeToo era would believe a sex crime can occur within an ongoing relationship, even without corroborating physical evidence.
It’s that last clause that’s the problem. “Without corroborating physical evidence” can also mean “with no more evidence than a woman’s word.” “Beyond a reasonable doubt” can now be satisfied by little more than a naked allegation.
What, after all, was the evidence against Weinstein beyond the say-so of the women? Was there a contemporaneous police report? No. DNA samples? No. Medical evidence? No. Videotapes? No. A male witness said one woman came to him visibly distraught after what she said was an encounter with Weinstein, but she wasn’t even one of the accusers.
So where is the impartial evidence that corroborates the women’s allegations? Nowhere. These guilty verdicts were based on the word of the complainants, the word of other women about other uncharged claims and essentially nothing more.
Needless to say, that doesn’t mean Weinstein didn’t behave as charged. He may well have. To me, Weinstein sounds every inch the loathsome pig and he may well be guilty of this and far more.
But it’s in the nature of rape cases that outsiders, i.e. everyone on the planet who wasn’t involved in the encounter (if there was one) between the man and the woman, don’t know what happened. Most sex occurs in private, so, if the woman cries “rape,” the judicial system needs to have some reliable way to assess what did and did not happen. And it needs to do so in a way that, to the maximum extent possible, finds the guilty guilty and lets the innocent go free.
As a practical matter, that means the system of adjudicating allegations of rape must require that the prosecution produce significant evidence to corroborate what the complainant alleges. Corroboration can mean many things. It can be eyewitness testimony, DNA evidence, medical evidence, an admission of guilt, a statement to friends by the accused, etc. But it needs to be something.
What the Harvey Weinstein verdicts show is that prosecutors and at least some jurors are willing to abandon that need for corroboration, and prosecute and convict on the basis of nothing more than a woman’s word. They, like the rest of us, live in the #MeToo era that demands that women be believed and men take their chances.
Now, supposedly, the Weinstein prosecution did produce “corroboration” of the women’s claims. One “expert” witness testified that a woman’s carrying on a normal relationship with a man is perfectly consistent with her having been raped by him. Therefore, her normal behavior toward Weinstein corroborated her claim of rape.
But what also was admitted as evidence was, as I said above, a man’s testimony that a woman acted terribly distraught after an encounter with the movie mogul. That too was offered to corroborate her claim that she’d been sexually abused. So, in a single trial, our judicial system accepted that a woman’s behaving upset and behaving not upset are both equally consistent with her having been raped. Both, according to the theory, make it more likely that rape occurred. That urges the question “Is there anything a woman can do that doesn’t mean she was raped?” You want “corroboration?” The system now gives it to you, by definition. That’s a stacked deck.
We need to remember that we’ve been down this road before, albeit by a more direct route. We’ve believed the woman many times and the history of our having done so is a sordid as it gets. Remember the grainy black-and-white photos from 100+ years ago of young black men hanging from trees surrounded by jubilant white crowds? Remember Emmett Till’s battered dead face? Remember the song, “Strange Fruit?” We believed the women and the results were an outrage to civilized society, or at least we thought so for a while. For a time we hung our heads in shame or raised our fists in righteous anger that such a thing as lynching should be allowed to happen. No longer.
Oh, I understand. Today we’re much more refined about the process, much less crude, much less candid. What once happened in the back woods of the deep South now happens in the air-conditioned comfort of a courtroom, but the gist is the same. The gist is that now, like then, we are abandoning basic concepts of due process of law, abandoning the idea that it’s better for 10 guilty people to go free than for one innocent person to be jailed. No, Harvey Weinstein won’t be shanghaied from his jail cell by a howling mob, carried to the nearest tree and strung up. He’ll just spend the rest of his life in prison.
Perhaps that’s where he belongs. He may well have done everything he’s accused of and more, but bad facts make bad law. The next man to go down might be entirely innocent of the crime charged, but his route to the penitentiary will be just as direct as Weinstein’s and probably more so. Harvey Weinstein is a vastly wealthy man, albeit not for long, but the next man, the next thousand men, won’t be.
So, during the same #MeToo era, and faced with the same willingness to convict on the basis of nothing but a woman’s word, how many men will find themselves on the conveyor belt from accusation to prison that #MeToo finds so indispensable to a healthy society? There’s a learning curve here alright, one that the WSJ article doesn’t miss.
“This verdict will embolden other prosecutors to take cases to trial where the overwhelming proof will rely on the credibility of the victims,” said New York University School of Law professor Stephen Gillers, an expert in criminal procedure and evidence. “Juries today are unlike juries in the past, and willing to believe women even in the face of effective challenges to their credibility.”
Indeed, prosecutors will do just that. And what prosecutors know, defense lawyers will soon learn. And what defense lawyers learn, they’ll tell their clients. They’ll tell them to “take the deal” because in the #MeToo era, anyone without an ironclad alibi can be convicted of rape. Anyone.
And what prosecutors and defense lawyers know, women also will learn.
Harvey Weinstein’s conviction Monday on sex-crime charges stands to encourage victims to come forward and bolster prosecutors considering similar cases, legal experts said…
Very true. Of course in the world of the WSJ, all women who claim to have been raped are “victims.” In the real world, false claims are common, up to 50% of the total according to rigorous studies done by academic researchers and those in the U.S. Air Force. The easier it is to “prove” a case involving rape allegations, the more of those false claims will result in innocent men going to prison. The Weinstein case “encourages” to come forward both the real victim and the liar.
In the end, that is the salient point. The criminal justice system, in all its manifestations is a matter of state power exercised over individuals. The expedients utilized to get Harvey Weinstein behind bars will be used thousands of times in the future against men, guilty and innocent alike. In the process, state power will grow and individual liberty will diminish. And, by acting as the cat’s paw for women, whether their claims are true or not, the state will dramatically expand the power of women over men.
Which, I suspect, has been the point all along.
