Is Harvey Weinstein Going To Prison?
The Debrief: And, if he is, would it change anything?
Harvey Weinstein now stands accused of rape, sexual assault, and harassment by multiple women all over the world. The avalanche of allegations against him which have surfaced over the last week has drawn attention to an endemic problem: sexual abuse, sexism, sexual harassment and sexual assault at work.
There’s a lot of talk but what action, if any, will be taken? The question is whether he will be charged, let alone convicted of any crimes? More broadly, will his very public outing and subsequent downfall actually change anything?
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In theory, lawyers say, Weinstein could indeed theoretically go to prison. Specifically, the assault against Lucia Evans (forced oral sex) which was revealed in The New Yorker investigation by Ronan Farrow, could constitute a felony charge under New York state laws.
However, that’s not the case for all of the allegations being made against him which include general harassment and, in any case, the problem with historic abuse (the events reported by Evans, for instance, took place over a decade ago) is that any sort of legal procedure and criminal outcome would a) require the survivors to press charges and b) need enough evidence for a conviction and c) need a court to take it seriously. All of this should be a given but, sadly, as we know all too well it isn’t. Indeed, justice often isn’t properly metered out in contemporary rape cases (see the Brock Turner case which actually resulted in a law change) in the States.
In the UK, things aren’t much better. I’d like you to cast your mind back to the beginning of this week, hazy as it might be. John Humphrys, the host of the BBC's Today Programme, was interviewing the Director of Public Prosecutions, Alison Saunders, live on air. She was there to discuss the findings of a new report which had been published by the Crown Prosecution Service (CPS). So far, so good. The report suggests that a record number of people in England and Wales are being prosecuted for sexual offences. One in five cases brought before the CPS are now alleged sex crimes and domestic abuse offences, which suggests that people feel more confident in reporting such crimes the rate of convictions for VAWG (Violence Against Women and Girls) crimes had also increased, from 69 % in 2007-08 to 75.3%. Also, good, right? Well, no, obviously terrible but good that such behaviour is being reported and dealt with.
Humphrys didn’t see it that way. What Humphrys said about these figures is so staggering that it’s worth repeating here. The ‘problem’ with sexual assault cases, he said, is that only the accuser is afforded anonymity while the person who stands accused is not. He didn’t stop there, oh no. ‘At least anecdotally’ he said, the is evidence that the number of false claims of sexual assault and rape are rising. Is there? I’ve looked and I can’t find it. Of course, this doesn’t mean there are never any false or malicious allegations made, but let’s be clear about this: there is no evidence at all to suggest that this happens more with rape and sexual assault than any other crime. Nope. None.
In fact, as former Public Prosecutor Keir Starmer wrote after the CPS conducted what he called ‘a landmark study’ on this very issue over a 17-month period, they are ‘few and far between’. Throughout the duration of that study, there were just under 6,000 prosecutions for rape. How many of those were found to be false? 35.
And yet the Today Programme presenter said ‘the concern for some people is that the scales have been tipped a little too far in one direction’. Saunders, who is obviously an expert in her field and likely to know just a little bit more about this than him, corrected the presenter, saying: ‘I don’t think so. I think the fact that we are seeing more convictions than ever before belies that. We still see a lower conviction rate for rape and serious sexual offences compared to other crimes, which suggests there is probably still a long way for us to go to improve.’
What’s all of this got to do with Harvey Weinstein? It is indicative of the shameful extent to which our culture enables, condones and implicitly believes those who are guilty of sexual abuses. It also reinforces the fact that, even now, after all of the progress we’ve made, the default position is to disbelief, doubt and question somebody who says they’ve been sexually assaulted, abused or raped.
As Professor Clare McGlynn, author of Rethinking Rape Law: International and Comparative Perspectives, has explained to The Debrief our ‘criminal justice system is part of a broader culture which impacts on whether or not victim-survivors report experiences to the police and/or continue with a prosecution.’ The issue is both legal and cultural. As McGlynn puts it, ‘it’s not possible to isolate the legal system as the main stumbling block [because] it is part of a broader picture of how society perceives rape and other forms of sexual assault.’
Humphrys line of questioning on a flagship national public service news programme and the fact that Harvey Weinstein is still talking about getting ‘a second chance’ in the future with a straight face, is part of this cultural problem. If Angelina Jolie and Gwyneth Paltrow, some of the wealthiest and most powerful women on the planet, couldn’t speak out about being harassed by a powerful man then how can we expect anyone else to? If men like Humphrys voice incorrect opinions about women making false rape accusations it only serves to reinforce the stigma that still surrounds sexual assault.
Rachel Kryss, Co-Director of End Violence Against Women, told The Debrief that ‘the CPS data was important because it showed that while there has been an increase in women coming forward as well as the number of convictions when compared with all other types of violence it’s still low. The data shows we have a long way to go and on some crime types like domestic violence convictions rates have gone down so there are serious questions to ask, not only about whether the justice system is fit for purpose but whether there is enough support for victims of these crimes. These are the important questions to ask, we want to ask them, we need politicians to ask them and we certainly need journalists to ask them. The only question John Humphries asked on the Today Programme was “surely there are loads of women getting drunk and claiming rape what about the men – hasn’t it all just tipped a little bit too far”. As a woman, when you listen to that, all you hear is “nobody is going to believe me there is no point in coming forward”. He also conflated not guilty verdicts with false allegations but that’s absolutely not what it means.’
Will anything change after this week? Would a criminal conviction for Weinstein change anything? As Kryss puts it ‘we’ve been here before. We’ve seen it before, with Donald Trump, with Jimmy Saville…it’s all completely skewed – we’re sending the message to women that if they come forward there is a high chance that they won’t be believed. These powerful men are using their power to abuse and exploit women and women know that. We need to stop asking why these women didn’t come forward we need to ask why we are so insistent on protecting these men. We need a huge cultural shift. How many more Jimmy Savilles and Harvey Weinsteins do we need before we realise there is something really wrong. I would love to be able to say that this will be a turning point but I don’t think it will be.’
Let’s hope that Weinstein is prosecuted and that if or when that happens he is held accountable by the law, we know that this doesn’t always happen in rape cases. It’s clear that alongside legally progress on cases of sexual assault, a huge cultural shift in attitudes needs to take place to make sure that sexually abusive behaviour is no longer enabled and implicitly condoned in our society.
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