On Monday, the system worked.
Jurors found Harvey Weinstein, a disgraced media mogul who has been accused of assault or harassment by at least 100 women, guilty of sexual assault and rape. His verdict, along with that of comedian Bill Cosby in 2018, sends a strong message that the jurors are capable of believing survivors over powerful men. A legal process in which less than 1% of sexual assault cases lead to convictions sided with survivors over a millionaire whose sexual misconduct has been an open secret for decades.
It was empowering. But while Weinstein’s guilty verdict is progress, it won’t fix a deeply broken system.
Many experts and survivors told HuffPost they thought the conviction was important but ultimately, and unfortunately, symbolic. While high-profile cases help shift cultural attitudes toward sexual assault, that doesn’t always change how the legal system treats average victims whose cases may not get the widespread media attention, the high-profile legal representation or the support of multiple accusers that the Weinstein trial did.
In the end, the fact that Weinstein will likely be put behind bars is “not going to fix the systemic problems with the way that survivors are treated by society and by institutions,” said Mar Lee, a sexual assault survivor and advocate for Title IX reform.
“A high-profile conviction just says that, in this case, there was enough to convict this person,” said Leigh Goodmark, the director of the gender violence clinic at the University of Maryland Carey School of Law. “But it doesn’t make any grand pronouncements for me about the system’s friendliness to people who’ve been raped and sexually assaulted.”
Weinstein’s Case Isn’t The Norm
Weinstein’s case doesn’t represent what happens to most victims. The accusations against him are extreme ― both in number and in people willing to testify against him. Lee worried that cases like their own, which involved being sexually assaulted by another student, would continue to be dismissed.
Many sex crimes lack physical evidence and multiple witnesses who can also testify to the abuse, said Jody Clay-Warner, a sociology professor at the University of Georgia who has studied rape reporting reform. And even if the perpetrator has assaulted more than one victim, it’s difficult to find an army of survivors in cases where the media isn’t documenting every detail of the case.
“Is this going to make the more common case of a woman on a college campus who’s raped by a date decide that she should go forward?” Clay-Warner asked. “I don’t think so.”
Though Weinstein’s victims were white, women of color are sexually assaulted at the highest rates. These survivors don’t often get the level of attention that Weinstein’s victims did and are often left out of the Me Too movement.
“There is silent, everyday violence and suffering committed against women that just don’t meet the threshold of public interest,” said Aya Gruber, a law professor at the University of Colorado.
“And Harvey Weinstein going to jail isn’t going to do anything for them.”
The System Still Traumatizes ― And Silences ― Survivors
It’s true that the system didn’t work perfectly for Weinstein’s victims either, many of whom waited years to have their stories heard. Like other assault survivors who go to trial, they were attacked on the stand. Weinstein’s defense lawyer accused them of being fame-hungry liars and read emails they sent the former producer to try and prove the abuse was consensual. One of his victims, Jessica Mann, broke down in tears on the stand after she was forced to read a note aloud in which she talked about being sexually abused when she was younger and described Weinstein as a father figure.
That type of treatment is one reason that sexual assault remains one of the most underreported crimes. And while Weinstein’s conviction could motivate more survivors to come forward, advocates also worried that seeing exactly how badly his victims were treated by the defense could actually be a disincentive.
The number of sexual assault victims has increased over the past five years, but less than 3% of survivors report their abuse to the police, according to the Rape, Abuse & Incest National Network (RAINN). There are many reasons why survivors don’t want to report their assaults to police, including safety fears or being financially dependent on their abuser. But one thing that keeps victims from going to the police is their concern that they could end up retraumatized instead of getting justice.
Even if they do report, police and investigators sometimes fail them. A 2016 BuzzFeed investigation found that police departments discard rape reports as false if a victim doesn’t resist “to the best of her ability,” and prosecutors are often reluctant to take on sexual assault cases that don’t have physical evidence.
Survivors said they were traumatized by their reporting experiences and aren’t confident the Weinstein verdict will improve the process for other victims.
When Janine Latus, an author and sexual assault advocate, first told a prosecutor the details of being sexually assaulted by someone she knew in 2004, he dissuaded her from moving forward with the case. “He said to me, ’Go into a Walmart and the first 12 people through that door will be your juror. Do you think they are going to believe you?” she recounted to HuffPost.
Sydney Ozuna, a college student who advocates for Title IX reform on campus, said she was victim-blamed after filing a complaint at her college in 2017. Ozuna said her school sexual assault investigator asked inappropriate questions about how short her skirt was at the time of the assault, how much cleavage she had been showing and if she had worn underwear. After her alleged perpetrator was found not guilty and she asked her investigator for clarity, she said the woman told her, “You’re not going to change my mind.”
“Being told that was so much worse than the assault,” said Ozuna. “I don’t think I’ll ever be able to forget hearing that.”
Real Solutions Needed
Advocates and legal experts agreed that the way victims are treated throughout the sexual assault process has to change.
Anyone responsible for hearing sexual assault complaints ― whether a police officer or a Title IX investigator ― should not attack a victim’s credibility or judge how they acted, experts said.
Of course high-profile verdicts can shift public opinion, which can influence how lawyers, jurors and judges think about sexual violence cases. But prosecutors and law enforcement also need to be trained in the basics of victim behavior so they know that memory lapses, laughter and flat affects are all regular responses to recounting a traumatic experience rather than a sign that a survivor is lying.
Certain policy changes could make the system more fair toward survivors. There is a progressive movement to reform the statute of limitations in sexual assault cases, given that survivors at times take decades to come forward. And it’s becoming more common for judges to allow witnesses who aren’t part of the criminal case to testify during a trial, as happened with Weinstein and Cosby.
There should also be more alternatives to the criminal justice system, Goodmark said, such as restorative justice, which brings together victims, perpetrators and facilitators to talk about the abuse. Some survivors don’t want their abusers to end up behind bars or might need medical services, economic support or a feeling of safety more than a guilty verdict. And relying entirely on a system that predominantly punishes people of color is problematic, according to Gruber, the law professor.
“The kind of justice that’s available through the adversarial system is pretty limited, and it comes at a really high cost,” Goodmark said. “If what you want is not necessarily criminal punishment, you’re not going to report.”
The importance of Weinstein’s conviction should not be underestimated. In some ways, Weinstein’s trial was a litmus test as to whether the justice system actually works, and the guilty verdict gives people a sense of reassurance, Gruber said. But it also raised the curtain on a broken legal system, showing exactly what victims must put themselves through to try to get a conviction and how much work still needs to be done.
“It’s not just about taking down the Harvey Weinsteins of the world,” said Ozuna, the sexual assault survivor, “it’s about putting rules in place that prevent them from being able to become a Harvey Weinstein.”
Need help? Visit RAINN’s National Sexual Assault Online Hotline or the National Sexual Violence Resource Center’s website.