Due process is difficult to maintain in the wake of #MeToo.
Even those who believe #MeToo has gone too far tend to believe it began well. Many have begun to doubt the movement's disrespect for due process and lack of mercy four years after it was sparked by allegations against Harvey Weinstein in October 2017. It is no longer necessary to "believe all women"—certainly not Tara Reade—and it is becoming viable to defend the accused, some of whom are rehabilitated.
Even if every other #MeToo target was rehabilitated, Weinstein would be found guilty. A country that disagrees on almost everything else is certain of his guilt. He is the grotesque epitome of white male privilege for the progressive left. He is the terrible face of Hollywood ideals and coastal decadence for the populist right. Weinstein's conviction of two felony sex offenses in a New York court in 2020 seems to back up these claims. Weinstein isn't just another tyrant. He is a one-of-a-kind figure of evil, a representation of all that is wrong with society.
Weinstein's appeal will now be heard by a New York appellate court. Few people are aware that he was acquitted of the two most severe charges leveled against him in New York. Even fewer people are aware of the improper procedures used to imprison him. The claims against Weinstein were based on innovative conceptions of permission, conspiratorial tales of power, and excessive caricature, rather than on solid facts. In Los Angeles, Weinstein will face a second trial. This trial, whether it results in a conviction or acquittal, should be more defensible than the first. However, as long as Weinstein's wrongful conviction in New York continues, he is unlikely to get a fair trial.
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Weinstein had already been declared guilty by the media before his trial began. In a New Yorker piece published in October 2017, Ronan Farrow accused Weinstein of forcing Lucia Evans, a former aspiring actress, to fallate him. Weinstein had already been accused of sexual harassment by the New York Times, but Farrow's investigation went far further. It featured "the first unequivocal, on-the-record assertion" that Weinstein had performed an act that might be prosecuted as rape, according to Ben Smith. But as Smith went on to detail in his capacity as media critic for the Times, there were grave flaws in Farrow’s reporting.
Evans was with a companion when she met Weinstein. Evans confided in her at the time, and she was in a good position to back up Evans' assertions. When contacted by a New Yorker fact checker, the buddy just indicated that "something improper happened." This was not backed up by any evidence. Worse, when questioned by a detective, the companion flatly denied Evans' account, stating Evans had portrayed the experience as consensual.
As Smith put it, "corroboration is a core component of the current trade of reporting on sexual assault." Corroboration provides credibility to a claim, whereas absence of corroboration diminishes it. However, this norm goes against the spirit of #MeToo, which demands that all complaints made by women be taken seriously. Farrow's reporting wasn't shoddy in the least. It scrupulously followed a new set of norms, rendering the previous ones illegitimate. Farrow was awarded the Pulitzer Prize for Journalism in 2018. His "explosive, impacting journalism that exposed powerful and rich sexual offenders" was mentioned by the committee.
The patterns outlined in Farrow's story would remain seen throughout the Weinstein case: Long-standing journalistic and legal conventions were washed aside by a flood of moral urgency. Officials from the government were no more objective than the crusading press. For example, the investigator who was told that Evans' contact with Weinstein was consensual neglected to inform prosecutors of this vital evidence. Instead, Evans' friend claims that the investigator informed her that the response she gave the New Yorker was more consistent with what Evans had stated, and that "less is more" moving ahead. (While the detective acknowledged to not relaying her testimony, she denied saying what she did.)
Another motif established by Farrow's story, which would climax in the trial, was the portrayal of Weinstein as a specific type of monster. Weinstein was portrayed as aggressive, manipulative, and crafty by the prosecution and its witnesses, as dirty, foul-smelling, and horribly malformed, a well-traveled habitué of Hollywood and New York who preyed on the young. Weinstein had performed oral sex on Asia Argento, an Italian actress, without her consent, according to Farrow. Weinstein was described by Argento as a nightmare creature: "It's twisted." You're being chased by a giant obese guy who wants to devour you. It's a frightening fairy tale."
It was difficult to connect Argento's portrayal of Weinstein with reality. She admitted to being in a relationship with Weinstein following the alleged event. He "dined with her and introduced her to his mother," and they proceeded to have consensual intercourse for the next five years. In 2018, Argento's public support dwindled after she paid $380,000 to Jimmy Bennett, a former child actor who had previously played her son. Bennett said that in 2013, when he was 17 and she was 37, Argento sexually attacked him. Argento obtained copyright on a selfie of her and Bennett in bed, their bare torsos exposed, as part of the settlement. The compensation and publishing of the photos harmed Argento's reputation, but her portrayal of Weinstein as a "scary fairy tale" endured. In her opening statement for the trial, prosecutor Meghan Hastdescribed Weinstein as “the old lady in the gingerbread house luring the kids in, missing the oven behind.”
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Weinstein's guilt had already been assumed before his trial began in 2020. Perhaps this is why the court and prosecutors considered due process to be superfluous. Evidence becomes irrelevant when guilt is presumed, and legal nuances must be neglected when the alternative is letting a monster walk free. During jury selection, the court's contempt for due process was evident. "Is there anything... you feel the court and the parties should know about your credentials to serve as a fair and unbiased jury in this case?" prospective jurors were asked. "No," said Juror No. 11, a novelist named Amanda Brainerd.
In reality, the outcome of the case was linked to Brainerd's professional interests. Her debut novel, Age of Consent, was set to be released by Penguin Random House later that year. It follows a group of young ladies as they move between boarding school and New York, where older males offer mentoring and progress in exchange for sex. Young women "handle problematic friendships, sexuality, class, and predatory older males," according to Brainerd's personal homepage. But when questioned in pre-trial proceedings by defense counsel Damion Cheronis, Brainerd denied that her book had anything to do with “predatory older men”:
Q: Does it have anything to do with predatory older men?
A: All three girls have some relationship with an older man but it’s not a predatory situation at all.
Q: Was there any press about it, about it being about predatory older men?
A: Not that I am aware of. There hasn’t been very much press about it.
Q: Okay. Did you do any research into predatory older men or victims of sexual assault in writing that book?
A: I didn’t because of—it’s really not about that.
Q: Does it have anything to do with sort of individuals who may, young women, who may be involved with older men that may be considered predatory?
In February 2020, Brainerd voted to convict Harvey Weinstein. By July, she was appearing in promotional events for her book that mentioned her role in the trial. In one interview published that July, she suggested that the Weinstein case might continue to play a role in her literary career: “Who knows? The trial might be inspiration for a future novel.”
The presence of Brainerd on the jury was the most egregious breach of due process in the Weinstein case, but it was far from the most significant. Weinstein's trial was especially reliant on so-called Molineux evidence—witnesses who swear that the defendant performed horrible actions or crimes with which he has not been charged—much like Bill Cosby's, whose conviction was just overturned on appeal. Because it risks robbing the defendant of his presumption of innocence and relieving the prosecution of its burden of proof, such testimony is strictly regulated. It can lead a jury to convict a guy based on assumptions about his character rather than what the jury has learned about his actions.
This type of evidence took up more than half of the trial. Three women, Jessica Mann, Miriam Haley, and Annabella Sciorra, were charged in connection with Weinstein's actions. Dawn Dunning, Tarale Wulff, Lauren Young, and Emanuela Postacchini, four other women, alleging six more incidents of wrongdoing. Mann was also given the opportunity to speak regarding two further alleged wrongdoings for which Weinstein had not been indicted.
Quantity does not always imply quality. After fifty-five appointments to a trauma therapist, Tarale Wuff's recollections of her claimed assault, which were previously too "fragmented" for the prosecution to utilize, were reconstructed. Lauren Young first informed investigators that she had seen Weinstein's testicles, notwithstanding Jessica Mann's denial of their existence. (In 1999, Weinstein got Fournier's gangrene, a vaginal ailment that may be cured through orchiechtomy, according to an Air Mail story.)
In October 2017, Dawn Dunning was quoted in the New York Times saying that Weinstein had once offered her film roles in exchange for sex. Almost two years later, in July 2019, she called the Manhattan district attorney’s office with a far more serious allegation: that on a separate occasion, Weinstein had digitally penetrated her without her consent. She had not told her boyfriend about this incident, whereas she had told him about the film-role quid pro quo. Nor had she mentioned it in any of her many interviews—with the New York Times, with CNN, with MSNBC, and with “five or six” assistant district attorneys.
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Weinstein’s conviction resonated with the broad sense that he is a bad man, a feeling likely to be shared by anyone who deplores adultery or the casting couch. But as some of the trial’s closest observers noted, there were reasons to doubt that Weinstein—whatever his sins—was guilty of the crimes with which he was charged. JoAnn Wypijewski, who covered the trial for the Nation, expressed her skepticism in the best contemporary account of the case. Another skeptical view was offered by Ann McElhinney and Phelim McAleer, whose podcast provided the most extensive coverage of the trial.
The most well-known of the three women accused of sexual harassment by Weinstein was Annabella Sciorra. Weinstein had visited her residence one night in the winter of 1993 or 1994, she said. He managed to get past the building's doorman despite coming uninvited and unannounced at her posh house on Gramercy Park North. Despite her "punching him, kicking him, basically trying to get him away," he pushed himself on Sciorra. Why didn't she call the cops and report the crime? Sciorra informed the court that she didn't realize the behavior was illegal. "Rape was something that happened in a back alleyway, in a dark location by someone you didn't know with a pistol to your head," she had thought. She was 33 years old at the time, and had already had a successful career as a film actor for several years.
Weinstein had previously overrun Sciorra's agency, according to Sciorra's account. He had previously forced her to act in the Miramax picture The Night We Never Met alongside Matthew Broderick (1993). Then he sent her a care box including a bottle of valium pills, which he used to get her hooked on the drug. He would compel her to act alongside Sylvester Stallone in Cop Land some years after the alleged attack (1997). Sciorra testified during cross-examination that she was "tricked" into acting in Cop Land, initially not recognizing it was a Weinstein production and then being "threatening with a lawsuit" if she didn't.
Weinstein's victims alleged not only that they were subjected to sexual actions for which they had not given their consent, but that they were also pressured to take part in acclaimed films or accept desired positions. Their claims were odd not because compulsion had to be direct and physical—it didn't have to be—but because they didn't explain how or why Weinstein forced them to do these things. The prosecution overstated Weinstein's power while undermining the agency of his accusers.
Miriam Haley stated she went to Harvey Weinstein's residence on July 10, 2006, and he forcibly performed oral sex on her. She met him two weeks later, on July 26, at the Tribeca Grand Hotel, for a second sexual encounter. Unlike the previous, this one was not coerced, according to Haley.
Why had Haley returned to Weinstein's office? Prosecutors claimed Haley had no option but to return to "the monster in her nightmare," as they portrayed him. Despite being unable to explain how Weinstein might threaten Haley, the prosecution argued that he "was so manipulative and threatening, and the powerful [sic] dynamics so distorted that Miriam was scared to anger him even after [being] physically attacked."
Haley's own testimony contradicted this portrayal of fear and control in their relationship. In February 2007, about six months after the alleged attack, Haley met Weinstein at a hotel in London to sell him a new TV program concept. "I had no fear of going to Weinstein's hotel," Haley said, and "felt reasonably comfortable" there. She wrote Weinstein in May 2007, while in Cannes, indicating that she was staying in a private apartment and requesting a ticket to a film screening.
The prosecution's dismissal of women's agency was most evident in its depiction of Jessica Mann, another of the women accused of attacking Weinstein. The prosecutors painted Mann as a victim, focusing primarily on the fact that she was "raised in the evangelical church in a little dairy town," as one prosecutor put it. They said that "despite living in Los Angeles for a few years, Jessica had not lost her innocence" when she met the crafty Harvey Weinstein, and that Weinstein, ever vigilant, "sensed the newness of his latest victim." Mann's rural and religious upbringing was regularly used as evidence that she was easily deceived by Weinstein.
Perhaps this line of reasoning will persuade a Manhattan jury, but nothing will make locals of flyover country chuckle harder. Close proximity to animals does not imply innocence. Attending Sunday worship does not exclude one from engaging in perversity. As someone who was born in Nebraska, reared in an evangelical church, and now lives in New York, I am confident in declaring that Christians from the Midwest are no less deceptive than those who were born in the city to a different faith.
In any instance, evidence produced at trial shattered the prosecution's portrayal of Mann. Her filthy messages, passionate letter to a partner, and self-deprecating narrative of a botched threesome revealed her to be a multifaceted, erring, and often observant woman, not a bumpkin virgin. Mann said Weinstein had "always been really polite" to her in an email to her partner. She called him her "spiritual soul partner" to a pal. Despite this, she painted him as a monster on the witness stand. He was so vile that he not only forced her sexually, he compelled her to be hired by the celebrity stylist Frédéric Fekkai:
Q: Well, at one point, Ms. Mann, Mr. Weinstein helped get you a job cutting hair, is that right?
A: Against my will, yes.
Q: He helped you get a job against your will?
"Inconsistency... that's the hallmark of truth," the prosecution said in its closing address to the jurors. If additional evidence or testimony contradicts a woman's claims, it simply proves her sincerity and absence of deception. Whether or not the allegations against Weinstein were true, they had to be taken seriously.
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Weinstein’s case is an example of what happens when due process is disregarded. But it is also a reminder that in certain situations due process is hard to sustain. Even the most cherished legal forms and procedures will be imperiled when high expectations run into disappointing reality.
Sexual assault claims are commonly regarded in terms of male-female, old-and-young relationships. However, they are frequently usefully considered in terms of the rich-poor gap. The tension between money and poverty, of course, offers chances for abuse. When there is the chance of financial gain, it also generates incentives for false accusations. Large financial gaps are harmful, particularly when explicit rights and responsibilities have been substituted by informal relationships and the façade of equality. When immense riches brushes up against relative poverty, there is going to be an explosive charge, much as when a thunderhead sweeps over arid plains.
Jerry Sandusky, the former Penn State assistant football coach who was convicted of forty-odd charges of sexual abuse of juveniles in 2012, exemplified this scenario. Penn State University is a rich institution that is completely integrated into the contemporary economy—and it is bordered by devastated industrial communities. It now has a $3.4 billion endowment. The county in which it is located is wealthier than all of its neighbors; three of the six counties next to it are in the state's lowest ten in terms of per capita income. Sandusky, a Methodist who spent most of his time operating a charity for troubled teenagers, straddled the worlds of university and trailer park. His case allowed for a rudimentary kind of redistribution, with $118 million passing from Penn State or its insurers to those living in the university's impoverished environs.
In Weinstein's case, a similar dynamic is at play. #MeToo is partly a demand for restitution on the side of people who were promised a lot but received very little. Thousands of individuals enter the film business in the hopes of achieving the fortune and fame that only a few achieve. As they attend VIP events and the greatest parties, they may receive a taste of these things. The invites, like the chances of a major break, dry up with time. They operate in a lottery economy, where players' expectations are built and then crushed. They will be left with less than others whose time, work, and commitment are rewarded with little but definite sums of money.
The anger #MeToo channels is real. It stems not just from dissatisfaction with our economic order but from unhappiness with the mores that correspond to that order. Just as the lottery economy overpromises and underdelivers, so does the libertine ethic that has accompanied its rise. Sexual frankness and liberty, often seen as elements of the career woman’s freedom, frequently conceal her exploitation. For decades, Hollywood has reveled in jokes about the casting couch, overlooking the practice’s grim reality. (In 2013, while handing out the Academy Award for best supporting actress, Seth MacFarlane joked, “Congratulations, you five ladies no longer have to pretend to be attracted to Harvey Weinstein.”) Just as lack of public order breeds vigilantes, the abolition of sexual restraint calls forth ad hoc forms of retribution. Malefactors, real or perceived, are bound to be targeted brutally.
Denouncing a man is easier than challenging an order with which one is complicit. Insofar as it casts a few men as devils in order to avoid criticizing practices in which many take part, #MeToo is cheap moralism. Insofar as it scapegoats certain people without challenging the structure of the economy, #MeToo is a socialism of fools.
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Because Weinstein’s prosecutors could not prove the crimes with which he was charged, they presented him as a monster who deserved to be hated by virtue of who he was. The prosecution witnesses and attorneys described Weinstein as a “savvy New York City businessman” and “famous and powerful Hollywood producer” who “travel[ed] a great deal.” They called him “manipulative,” “conniving,” “devious,” “aggressive,” a “seasoned predator” who asked prying questions about money and “dominated” industries. They told the jury that he was “overweight,” “sloppy,” “hairy,” “had moles … on his rolls,” a “lot of black heads,” and could be heard “grunting.” His genitals—“deformed,” “disgusting,” “intersex”—emitted something “vile.” He “smelled like … shit” and “just was dirty.”
Weinstein's victims, on the other hand, were "really innocent ladies," "pawns being pushed around," and "rag doll[s]" whom he "always kept...in his grasp." Jessica Mann, whose rural and religious background contrasted with Weinstein's, who was born to a diamond cutter in Queens, highlighted their purity and inexperience. "Harvey Weinstein had so skillfully controlled and secured this young Christian from the dairy farm in his mental grip, that even after that violent incident, Jessica Mann will tell you how she... continued to pretend she wanted to see him," the prosecution said in its opening statement. This young Christian, like all the other victims, was completely manipulated by Weinstein.The guy was thought to be all-knowing, all-powerful, and malignant in the Weinstein case, which launched #MeToo and condensed its concept of humanity. The ladies were portrayed as naïve, helpless, and powerless. The well-traveled Hollywood and New York power broker was physically repulsive, but he exploited youth and naivety with his financial and political connections.
Like a pulpy movie, the prosecution laid out the case in basic and visceral terms. It presented an ancient narrative that had previously been transformed into the most popular German film of the 1940s. The affluent Jud Süß leaves the ghetto, dons the finest attire, and earns the prince's trust in that show. He can't hide his moral and physical repulsiveness, though. When he leaves a room, good people open the windows because he is "brilliant but horrible," a "exploiter of people."
At first, Süß’s powerful backer protects him, but there are limits to the peoples’ patience. His financial sharpness is one thing; his ill-treatment of women another. “The Jew has organized a meat market, and our daughters are good enough to be the merchandise!” an outraged townsman cries. The movie culminates with Süß’s violation of a naive Christian maiden, and it ends when he is hanged.
#MeToo is built on preconceptions about men, women, and their relationships. Its supporters claim that their movement is "intersectional," meaning that the power structures they oppose are not just economic, but also sexual, racial, and religious. Such a perspective, which is based on identity stereotypes, may taint even the best-intentioned person's thinking and rhetoric. Weinstein was found guilty not because of his actions or character, but because his accusers were able to replace human reality with a caricature.