The Weinstein Verdict Shows Why Rape Convictions Are So Rare

This story was updated on February 25, 2020 at 10:40am.

A jury has convicted the Hollywood producer Harvey Weinstein, who had the starring role of villain in the #MeToo movement, of sexually assaulting two women. He was acquitted of the most serious charge, predatory criminal assault.

“This is an absolutely stunning day,” says Jane Manning, a former sex-crimes prosecutor in Queens, New York. “This man used all his wealth and all his power to buy himself impunity, and today, that impunity ended.”

Weinstein faces at least five years in prison for raping Jessica Mann, an aspiring actor, in a Manhattan hotel room on March 18, 2013. The jury also found that he forced Miriam Haleyi, a former production assistant, to have oral sex at his home on July 10, 2006. His lawyers have already said they plan to appeal “immediately.”

In so many respects, this case was an outlier—because of Weinstein’s fame, the publicity surrounding the case, and, more than anything else, the sheer number of accusations that brought Weinstein into the courtroom. More than 90 women accused him of misconduct ranging from noncriminal harassment to forcible rape. Yet prosecutors brought charges on behalf of only two women.

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This is a story sex-crimes prosecutors know all too well: How the flood of victims becomes a trickle of convictions. Despite the guilty verdict, the Weinstein trial is also, in a way, a warning to victims, illustrating the extreme difficulty of prosecuting men for sexual assault. Perhaps most significant, the Weinstein case provides a preview of prosecutions to come in the #MeToo era.

If it weren’t about him, Harvey Weinstein might have picked up this script: a powerful movie producer, famous actors and aspiring ones, meetings in luxury hotels, even an Israeli investigative company spying on journalists and alleged victims. But take away the glamour, and you have something so very ordinary: allegations about power and control. Pick your institution—the military, a church, a corporation—and you can find a breeding ground for abuse, says Roger Canaff, a lawyer who has prosecuted sex crimes in Virginia and New York. “There are thousands and thousands and thousands, maybe millions, of perpetrators out there who are using influence in a very similar way to Weinstein,” Canaff told me. “This case is not at all uncommon. The only thing that makes it unique is his celebrity and the fact that the industry that he’s in is so present in the public mind.”

Weinstein’s case is a “microcosm of what happens in rape cases more generally,” says Manning, who directs the Women’s Equal Justice Project. “Only a small number of reports result in an arrest. Only a small number of arrests result in a prosecution. Only a small number of prosecutions result in a conviction. The big picture of rape and society now is that only a tiny fraction of rapists will ever be brought to justice.”

After a woman is assaulted, she faces a series of ever taller hurdles before she might see her assailant arrested and prosecuted, much less punished. Sometimes the decision about whether to press charges is made for her: The statute of limitations has passed, or the misconduct did not rise to the level of a crime. Many of Weinstein’s accusers, such as the Sopranos actor Annabella Sciorra, were barred from going forward for reasons like these.

The First Hurdle: In the Quiet of Her Mind

But before those statutory hurdles become relevant, the first, emotionally fraught question presents itself: Should a woman call 911 and tell her story?

This one decision could upend her life, starting her on a path that might expose her worst or most terrifying moments to the world, and force her to relive them day after day. “It’s a very daunting and a very personal decision,” says Jane Anderson, a former sex-crimes prosecutor who now works for Aequitas, a group that advises prosecutors on sexual-assault cases. And by law, the odds are against her: “The system isn’t designed to support victims. The system is designed to provide defendants with their constitutional rights.”

Three out of four women never report an assault, according to the Rape, Abuse & Incest National Network, or RAINN. Of Weinstein’s alleged victims, as far as we know, all but one of them stayed silent until news stories revealed his purported pattern of abuse in 2017. One victim told The New York Times that she’d considered working with the police but ultimately declined. Her allegation—that Weinstein had invited her to his office to discuss a script, then forcibly performed oral sex—fell within the statute of limitations. But her lawyer warned her that if she reported Weinstein, he would hire private investigators to dig into her life and look for anything to discredit her. Her personal history, her emails with Weinstein—everything would become public. She decided it wasn’t worth it.

“You can think of it as kind of a cost-benefit analysis,” says Deborah Tuerkheimer, an expert on rape law at Northwestern University Pritzker School of Law and a former sex-crimes prosecutor in Manhattan. Victims think they won’t be believed. They think they’ll be blamed. They blame themselves. They worry that the man, or the publicity, will destroy their professional or personal life. All of these concerns made for a sort of running commentary for several women who were allegedly harassed by Weinstein: Did they misread signals, ignore the obvious red flags when agreeing to a “meeting” in his hotel suite, gullibly buy his claim that sex was the currency of Hollywood, or at least Miramax?

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Paradoxically, the very pattern that undermined the women’s chances of proving assault also makes their allegations ring true to experts like Canaff. “Once the trap snaps shut, and he was in a bathrobe, and they were behind closed doors, that’s when he would execute,” Canaff said. “I’m sure that Weinstein knew by that time the victim’s credibility has already been compromised.” As to their careers, Weinstein did exact revenge on those who rejected him, including the actors Ashley Judd and Mira Sorvino, spreading the word that they were “difficult.” Victims weigh these sorts of considerations against the slim chance of conviction, Tuerkheimer told me. “If it’s very unlikely that anything is going to happen with the case, but it’s probable that there will be negative consequences to coming forward—then why bother?”

The Second Hurdle: The Police Department

If a woman does overcome her fears and reports the assault to police, 80 percent of the time the police do not make an arrest. Police and researchers say they are eager to investigate “real rapes” of “righteous victims,” such as a woman assaulted by a stranger in an alley at gunpoint. But acquaintance rape, which accounts for more than three quarters of all assaults, rarely passes muster with detectives, says Rebecca Campbell, a psychology professor at Michigan State University. Campbell, who has analyzed more than 2,000 police reports and interviewed some 250 victims, told me that detectives frequently discourage women from cooperating with an investigation.

In practice, what this looks like, Campbell said, is that detectives paint a “grisly picture” of what lies ahead, from an intrusive investigation to a brutal trial. “Sometimes police tell them, ‘Listen, you’re not going to survive cross-examination. This isn’t going to go well for you. I don’t believe you; nobody’s going to believe you,’” Campbell said, describing a problem I have previously reported on for The Atlantic. She says police frequently advise a woman that she will be prosecuted if any part of her allegation doesn’t hold up. One victim told Campbell that the detective on her case issued his warning before he had told her his name. “Literally first thing was the warning ‘If you tell me anything—anything—that is not true, we will prosecute you to the fullest extent possible under the law.’” The victim, unsurprisingly, opted not to file a complaint.

In the past few years, following scandals about untested rape kits, some police departments have steered more money and detectives toward investigating rape allegations. Still, navigating the conflicting accounts of a crime—which in many cases no one other than the victim and the perpetrator has witnessed—takes time and finesse and offers no guaranteed payoff for understaffed police departments. So detectives hazard a guess about the future in what’s called the “downstream problem.” What evidence will be needed to prove this case beyond a reasonable doubt? If there’s forensic evidence, if the victim appears credible, if the suspect has a criminal record—great. Otherwise, Campbell said, police move on to the next case.

This is one area where the case of Harvey Weinstein appears to depart from the script. NYPD detectives did believe at least two women who came forward. Then those women hurtled into another barrier: the Manhattan District Attorney’s Office.

The Third Hurdle: The DA’s Office

In March 2015, Ambra Battilana Gutierrez brought New York police an explosive tale: The Filipina Italian model had just been with Harvey Weinstein for a business meeting at his office, where he lunged at her and groped her. The next night, police put a wire on her and sent her off to meet with Weinstein at a hotel. As Weinstein tried to steer her to his room, over her frantic protests, he apologized, on tape, for groping her the night before. Police were thrilled: It seemed to be a confession. But before Weinstein could be charged, the District Attorney’s Office announced that it would not press charges; prosecutors said there were discrepancies in Gutierrez’s account about an earlier alleged sexual assault in Italy. The NYPD was furious. “There was a ton of corroborating evidence,” Jane Manning says. “That should have been a slam-dunk case. But instead the DA’s office chose to put her on trial and find her unworthy of belief without ever scrutinizing the background of the offender.”

Two years later, after The New Yorker and The New York Times published reports alleging that Weinstein had assaulted many other women, the Manhattan District Attorney’s Office defended its decision. The audio from the sting operation was “insufficient to prove a crime under New York law.” That, “coupled with other proof issues,” meant the office could not bring charges. “If we could have prosecuted Harvey Weinstein,” the statement said, “we would have.”

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In 2018, New York police saw another chance to bring the movie producer to account. In the summer of 2004, when Lucia Evans (then Stoller) was about to start her senior year at Middlebury College, Weinstein approached her at a club and invited her to his office to discuss possible acting roles. After mentioning Project Runway and two movies, she says he forced her to give him oral sex. She did not report it then, but after her story appeared in The New Yorker more than a decade later, detectives tracked her down. They urged her to cooperate: She offered the best hope of finally stopping Weinstein, they said. Evans agreed, and the DA’s office charged him with assaulting her and another, then-unnamed woman. Weeks later, without informing her in advance, the DA’s office withdrew her charge. They said that an NYPD detective did not tell them about a witness who gave conflicting accounts about that night; the witness claimed Evans had given the producer oral sex for the prospect of a job. Evans categorically denies this.

This scenario, in which police arrest a suspect (even years later) but prosecutors decline to take him to trial, is not an outlier to the general practice, something happening solely because of Weinstein’s fame and power. This is far more likely than not. Part of the reason comes down to differing legal standards. Police need only probable cause for an arrest; prosecutors must gather enough evidence to convince a jury beyond a reasonable doubt. Prosecutors know that juries consider intangibles—not just evidence about the man’s actions but also the woman’s credibility, sexual history, and character. This “convictability standard” governs a prosecutor’s decisions from the day she receives a case.

That’s understandable, but it skirts the deeper issue. Sure, Gutierrez’s and Evans’s allegations are messy—but that’s true of virtually all acquaintance-rape allegations. When the accused and accuser know each other, the case can be riddled with contradictions and confusing dynamics. Was the sex consensual—did both parties got what they were looking for? (Weinstein got sex and the would-be actor got the promise of a movie career.) Or was it assault—did Weinstein wield his influence more skillfully than any stranger could brandish a knife in an alley? As Weinstein’s attorney Donna Rotunno put it: “They didn’t look at Harvey and say, ‘Oh my god, he’s the most gorgeous guy I’ve ever seen and I want to go to his hotel room.’ They looked at Harvey and said, ‘Harvey can do something for me.’ And so who was using who?”

The Fourth Hurdle: The Courtroom

And then there were two. When the trial opened in January, Weinstein faced only Miriam Haleyi and Jessica Mann. Prosecutors introduced Annabella Sciorra as another witness. She claimed that Weinstein raped her in her home in the winter of 1993–94. Her allegation is too old to be prosecuted as a separate charge, but it was used to support two counts of predatory sexual assault, which carries a life sentence. Three other women testified to demonstrate that Weinstein had a history of abuse. Ultimately, the jury did not convict him of the predatory charges.

Outside the courtroom, Weinstein has been tried and found wanting. But inside, the women were on trial. At times, Mann sat sobbing, unable to speak, folding herself over in the witness chair to hide her face. In her cross-examination, Rotunno tried to pick apart Mann’s allegations. If Weinstein raped her, why did Mann eat breakfast with him the next morning; send him breezy, flirtatious emails for several years; try to introduce him to her mother; have an ongoing relationship with him for years, which included some consensual sex acts?

There are many reasons she, or any other alleged rape victim, would remain in touch with her abuser: she was worried about her career, she saw him at social events, she depended on him emotionally. She considered him a “pseudo father,” she testified. “He gave me all the validation I needed.”

If you hope to get a conviction, Tuerkheimer, the former prosecutor, told me, you have to somehow convey to the jury that this is a relationship characterized by power and control. “There was a sense that he controlled her world,” Tuerkheimer said of Mann. “From the outside, that testimony seems incredible. In order to get that testimony to make sense and to cohere, you really have to provide the jury with context. That’s the only way that the behavior of the woman and the case is going to make any sense.” In the end, the prosecutors seem to have succeeded at that.

As expected, the Weinstein trial laid bare—and frequently distorted—each woman’s sexual history and personal flaws.This is the adversarial system at work, of course, but it also demonstrates why so few women have been willing to come forward and accuse a boss, a friend, an acquaintance in this most public of forums.

The Fifth Hurdle: The Jury Room

When jurors retreat to decide a defendant’s fate, they carry with them all their life experience, their predilections and intuitions, as well as their recall of the evidence. The “rape myth” dictates that any evidence that the woman consented, any whiff of an ongoing relationship, should lead to an acquittal. For generations, this has meant that prosecutors shied away from complicated cases, and women kept abuse to themselves, allowing their abuser to continue undeterred.

Yet the #MeToo movement has created another story line, one in which women have finally revealed that they were assaulted by people they knew. Jurors in the future, if not the present, will bring that narrative into the jury room as well.

In that sense, the Weinstein trial marks a turning point. “We may be on the cusp of kind of a new era of sex-crimes prosecution,” Tuerkheimer told me. Women whose cases would have been rejected in the past, not because the assault didn’t happen but because it was too complicated to explain, may start to see justice. “Maybe we’re willing to look at those kinds of cases anew,” Tuerkheimer said, “and we’re willing to believe that juries might credit the testimony of ‘imperfect victims.’ Because there is no perfect victim.”