‘Alleged’ No Longer

Harvey Weinstein was tried over the past two months. So were regressive ideas about what sexual violence really looks like.

In January, women in a group protesting rape and sexual assault re-created a performance piece—created in Chile by Las Tesis—outside the courthouse where Harvey Weinstein's trial was held. (Craig Ruttle / Redux)

“They are creating a universe in which they’re stripping adult women of common sense, autonomy, and responsibility,” Donna Rotunno, one of Harvey Weinstein’s defense attorneys, said during the closing arguments of her client’s criminal trial. She was taking aim, most directly, at the case’s prosecution. But she was also suggesting, in the cosmic sweep of her accusation, a broader indictment: of the #MeToo movement, and of the movement’s insistence that the blame for sexual violence lies not with its victims, but with its perpetrators.

The lawyer’s argument was flawed in many ways—chief among them, it failed, apparently, to persuade its intended audience. Yesterday, the jury in People of the State of New York v. Harvey Weinstein announced its verdict, after nearly 30 hours of deliberation: Weinstein is guilty, it concluded, on two of the five charges that were brought against him. The “alleged rapist” is now the “convicted rapist.” He faces up to 29 years in prison. That is expressly because, not in spite, of the “common sense, autonomy, and responsibility” demonstrated by the women who spoke during the trial.

For many observers—people who have lived through the Anita Hill testimony and the Christine Blasey Ford testimony and the election of Donald Trump—the Weinstein verdict came as a shock. “This was such a narrow legal hallway to walk down, and many of us braced ourselves for a not-guilty verdict,” Lauren Sivan, a journalist who has said that Weinstein masturbated in front of her, explained during a call with reporters yesterday. For others, the verdict was a symbol. “This is a new day,” Cyrus Vance, the Manhattan district attorney, who declined to prosecute Weinstein in 2015, told reporters just after the verdict was announced. Trump shared his own—deeply fraught—reactions to the verdict during a press conference today: “I think that, from the standpoint of women, I think it was a, uh, great thing. I think it was a, uh, it was a great victory.”

The men’s optimism was too easy; the verdict, after all, was split. The trial was harrowing for many of those who participated in it. (One witness, Jessica Mann, had an apparent panic attack while answering a particularly harsh string of questions under cross-examination.) Progress is hectic and occasionally cruel. “Don’t Tell Me to Be Happy About the Harvey Weinstein Verdict,” Molly Jong-Fast wrote in the Daily Beast. She had a point.

And yet: That verdict was progress. The trial that occasioned it was progress. Even the simple shift in language—alleged rapist to convicted rapist—is progress. Alleged, applied to Weinstein, was both necessary and just; he was, like any other person accused of a crime, innocent until he was proved guilty. But alleged can suggest balance when there is none. More than 90 women have made allegations of sexual misconduct against one man. During the trial, their number was reduced, effectively, to two.

It is hard to overstate the risk the Manhattan DA’s Office took in bringing forward the charges of those two women, Mann and Miriam Haley—specifically because they went on to have relationships with Weinstein after their assault. Juries (in, that is, the vanishingly rare times they are summoned for sexual-assault cases) have not traditionally understood that 81 percent of sexual assaults are committed by people already known to the victims. Nor have juries traditionally understood the complicated dynamics that can keep survivors tethered to those who did them harm. Assaults committed by strangers, their victims screaming and clawing and fighting back until they can fight no more: This is the narrow view many Americans, and consequently many American juries, have had of rape. This is the mythology that the prosecution was taking on.

Myths are stubborn things. One consequence of living in a culture that remains loath to discuss sex, in schools or in courtrooms, is that it loses the capacity to talk about sex. Its language suffers, and its empathic imagination suffers along with it. Jeffrey Marsalis, accused of drugging and raping 10 women, was acquitted of rape by two Philadelphia juries after they learned that many of those women maintained contact with him after the assaults. (It took a third trial to convict him—this one involving a woman who had gone straight to the police with her claim.) The radio host Jian Ghomeshi was acquitted on assault charges in part because some of his accusers withheld information about the contact they maintained with him after the alleged assaults. Assaults, when they occur, take place in a social context; many discussions about assault, however, ignore that fact.

One of the remarkable elements of the Weinstein trial is the extent to which the women themselves wrestled, in public, with the myths. “I thought he was a nice person; I thought he was an okay guy,” Annabella Sciorra, who accused Weinstein of raping her in her New York City apartment in the mid-’90s, said on the stand. “At the time, I thought rape was something that happened in the dark, in a back alley, something a stranger did to you with a gun to your head.” Haley testified that she had sex with Weinstein just weeks after he forced oral sex on her, and continued a correspondence with him well after that. Haley was trying to “almost normalize the situation,” the assistant district attorney Meghan Hast told the jury—to reclaim what had happened to her. To convince herself that the world she had occupied before her assault was the same one she inhabited after it. Hast and her colleagues were hoping that the jury would empathize with that impulse.

Trials are blunt instruments. And the basic facts of this one were not, fundamentally, what was being adjudicated as the prosecution and the defense sparred. That the actions in question—oral sex, penetrative sex—had taken place was generally agreed upon; the real question at hand was whether the sex had been consensual. The facts at play, here, were matters of mindset. The defense attempted to prove that Weinstein understood the encounters to be consensual, if transactional. This was a trial, in large part, about whether Weinstein assaulted one woman and raped another during incidents in 2006 and 2013, respectively. As it played out, though, its proceedings asked questions that remain perennial when sexual violence is concerned: whose perspective matters. Who is deemed believable. Who is assumed to bear the blame.

But when juries allow that no victim is “perfect”—when they expand their notions of what sexual violence actually looks like—the questions can become more nuanced and reflective of lived experience. Many of the women who took the stand described seizing up rather than fighting back. They described the feel of Weinstein’s weight over them, his strength, the power he wielded both physically and otherwise. He used his rage as a weapon, they suggested. But he weaponized his indifference too. “He, you know, told me not to make a big deal about it,” said Dawn Dunning, while testifying that Weinstein put his hand up her skirt and attempted to penetrate her with his finger during what she had assumed to be a business meeting. She did not tell anybody what happened. On the stand during the trial, she explained why: “I was embarrassed,” Dunning said. “I wanted to pretend like it didn’t happen. I just—I didn’t want to be a victim.”

Dunning was describing what it’s like to live in a world that arranges itself around the whims of powerful men. She was describing the world, in other words, that still exists—a world whose laws are biased toward the privileged, and a world that is much better at talking about justice than truly enacting it. Yesterday was not “a new day,” as Vance claimed. It was, however, a day that found 12 people doing something that some other juries have done as well: appreciating that sexual violence is far more complicated than American law, and American culture, have admitted. And then reflecting that nuance in their verdict. Believe women has been a slogan and a correction and an extremely modest rallying cry. Now it is precedent. Now more progress might be made. The jury took the women, at least in part, at their word. And Weinstein “will forever be guilty,” Tarana Burke, the founder of the movement that the now-convicted rapist unintentionally helped expand, said yesterday. “That’s a thing we have.”