The Harvey Weinstein Epidemic: Why Rich, Powerful Men Are Not Criminally Prosecuted

By: Emi­ly Craven

On Octo­ber 5, 2017, The New York Times exposed one of Hollywood’s dark­est secrets: that Har­vey Wein­stein had a his­to­ry of set­tling cas­es with women who accused him of sex­u­al assault and sex­u­al harass­ment for near­ly three decades.1To date, Wein­stein, founder of the Wein­stein Group and pro­duc­er of count­less Oscar-nom­i­nat­ed and award­ed films, has been accused of sex­u­al mis­con­duct of fifty women.2Begin­ning with Ash­ley Judd, many brave women, both in and out­side of the enter­tain­ment indus­try, have come for­ward with their per­son­al “Har­vey sto­ry.”3While each of the accounts dif­fer in detail, the sub­stance of each woman’s sto­ry par­al­lels the oth­ers.4

Wein­stein, best known for pro­duc­ing Shake­speare in Love, alleged­ly sys­tem­at­i­cal­ly tar­get­ed young, female actress­es that were new to the indus­try.5 He invit­ed them to his room for a “meet­ing” where he would make sex­u­al advances toward them.6The women who have shared their sto­ries cite fear as the main rea­son they have nev­er dis­closed Weinstein’s inap­pro­pri­ate behav­ior, as they were young actress­es and Weinstein’s pow­er in the indus­try would essen­tial­ly “make or break” their bud­ding Hol­ly­wood careers.7Although Wein­stein was fired from the Wein­stein Com­pa­ny8and expelled from The Acad­e­my of Motion Pic­tures Arts and Sci­ences,9 it is unlike­ly that the mogul will face crim­i­nal charges due to the producer’s immense pow­er and over­whelm­ing wealth.

In the past, there have been numer­ous fig­ures accused of sex­u­al assault across var­i­ous indus­tries; Roger Ailes, Bill O’Reilly, Dr. Luke, and Travis Kalan­ick to name a few.10These men share many sim­i­lar­i­ties with Wein­stein: they are intel­li­gent men in posi­tions of pow­er at large com­pa­nies in the enter­tain­ment, sports, tech, or media indus­tries who sys­tem­at­i­cal­ly used the author­i­ty and pow­er gained through­out their tenure to com­mit sex­u­al crimes against female sub­or­di­nates, manip­u­lat­ing them so that they would nev­er dis­close the sex­u­al advances. These men’s mas­sive suc­cess­es has led to a belief of supe­ri­or­i­ty and omnipo­tence, result­ing in the erro­neous jus­ti­fi­ca­tion that women desire their sex­u­al advances.

This the­o­ry is cor­rob­o­rat­ed in Dacher Keltner’s, “Sex, Pow­er, and the Sys­tems that Enable Men like Har­vey Wein­stein.”11Kelt­ner points out that stud­ies show that pow­er­ful men “over­es­ti­mate the sex­u­al inter­est of oth­ers and… sex­u­al­ize their work.”12 Invok­ing Milgram’s study that test­ed the extent to which humans will obey author­i­ty by admin­is­ter­ing what they believed to be lethal shocks to strangers in anoth­er room,13Kelt­ner argues that the sex­u­al deviance of these men stems from their author­i­tar­i­an posi­tion: pow­er can prompt the “Aver­age Joe” to admin­is­ter lethal shocks to strangers and when this pow­er goes unchecked, it becomes abused.14 This study thus mim­ics why and how pow­er­ful exec­u­tives con­tin­ue to com­mit sex­u­al crimes in our soci­ety.  His­to­ry demon­strates that these men are not crim­i­nal­ly pros­e­cut­ed for their actions, so the cycle con­tin­ues as men across all indus­tries gain pow­er and fame.

Based on the his­tor­i­cal pat­tern of how rich, pow­er­ful men like Wein­stein have been treat­ed by the jus­tice sys­tem after com­mit­ting sex­u­al crimes, it is unlike­ly that Wein­stein will be crim­i­nal­ly pros­e­cut­ed.

First, evi­dence and legal issues that come up often in sex­u­al assault cas­es present prob­lems to the pros­e­cu­tion due to the statute of lim­i­ta­tions.15

Sec­ond, even if the gov­ern­ment could build a case against him, Wein­stein has the funds to spend a for­tune on a sol­id defense team to ensure his case is set­tled before tri­al.16

Last­ly, even if the case goes to tri­al, his­to­ry shows that in our legal sys­tem, jurors are unlike­ly to con­vict men like Har­vey Wein­stein.17Thus, men with wealth and pow­er sim­i­lar to that of Har­vey Wein­stein are not held account­able for their actions through crim­i­nal pros­e­cu­tion in our jus­tice sys­tem. This vicious cycle of rape cul­ture among high-pow­ered exec­u­tives con­tin­ues to per­me­ate and repeat itself.18

Sex­u­al assault cas­es are extreme­ly dif­fi­cult to pros­e­cute due to the statute of lim­i­ta­tions on sex crimes. Since each state’s statute of lim­i­ta­tions dif­fers, the evi­dence to be adduced when form­ing a case against Wein­stein will depend on the tim­ing and loca­tion of the alleged sex­u­al assaults. Pros­e­cu­tors in New York, Lon­don, and Cal­i­for­nia are start­ing to build cas­es against the Hol­ly­wood pro­duc­er. How­ev­er, Los Ange­les City Attor­ney Mike Feuer said in a state­ment that they will pros­e­cute Wein­stein “[i]f vic­tims come for­ward.”19California’s seem­ing­ly hands-off approach to the mat­ter is like­ly due to the fact that the statute of lim­i­ta­tions for sex­u­al assault in the state is cur­rent­ly one year from the time DNA evi­dence con­firms the assault20com­pared to five years in New York21 and no lim­it in Lon­don.22

More­over, the pros­e­cu­tion will have a dif­fi­cult time pros­e­cut­ing Wein­stein for each of his alleged sex­u­al assaults because women may not wish to pros­e­cute or tes­ti­fy against him due to the emo­tion­al toll of lit­i­ga­tion, espe­cial­ly in lit­i­ga­tion involv­ing a trig­ger­ing event like sex­u­al assault. The gov­ern­ment will have to pros­e­cute each case indi­vid­u­al­ly giv­en that a crim­i­nal class action is vir­tu­al­ly impos­si­ble since each woman’s cir­cum­stances sur­round­ing her accu­sa­tion dif­fer.23Addi­tion­al­ly, women may not come for­ward to tes­ti­fy for fear that their alle­ga­tions will not be believed, as many who have accused Wein­stein have cit­ed this fear as their fail­ure to report his unwant­ed sex­u­al advances.24Women who reached set­tle­ments with Wein­stein for past sex­u­al assault will like­ly be for­bid­den to tes­ti­fy as it is high­ly like­ly that their set­tle­ments con­tain claus­es that for­bid the women from speak­ing about the con­tents of the agree­ment.25

The most chal­leng­ing hur­dle pros­e­cu­tors must over­come if they decide to pros­e­cute Wein­stein will be the bur­den of proof present in a crim­i­nal tri­al.26Unlike a civ­il tri­al which only requires a pre­pon­der­ance of the evi­dence to find a defen­dant guilty, the bur­den of proof in a crim­i­nal tri­al requires proof beyond a rea­son­able doubt.27Due to this extreme­ly high stan­dard, pros­e­cu­tors may be hes­i­tant to bring Weinstein’s case to court since many cas­es brought against famous men like Wein­stein accused of sex­u­al assault have result­ed in mis­tri­als.28

Pow­er­ful men are wealthy men, so is seems obvi­ous that Weinstein’s wealth will pro­vide him with unlim­it­ed legal resources, result­ing in the best defense team mon­ey can buy.29Pros­e­cu­tors will like­ly view Weinstein’s wealth as a major hur­dle when decid­ing whether or not to pros­e­cute the famous pro­duc­er.30Since the gov­ern­ment will be forced to bring each case indi­vid­u­al­ly, this will result in a lot of time, effort, and mon­ey spent lit­i­gat­ing these cas­es.31The gov­ern­ment is unlike­ly to bring a crim­i­nal case against a celebri­ty like Wein­stein unless they know the case is winnable.32When faced with a man as rich and as pow­er­ful as Wein­stein, the gov­ern­ment is like­ly to con­cede Weinstein,fearing that its time will be wast­ed in court against Weinstein’s defense coun­sel.

The abil­i­ty to pay high legal fees allows the “Har­veys” of the world to avoid lit­i­ga­tion. In addi­tion to Wein­stein him­self, many oth­er famous men have set­tled sex­u­al assault and harass­ment law­suits out­side of our judi­cial sys­tem because their wealth pro­vid­ed them with the legal resources to do so. For exam­ple, weeks before win­ning the 2017 Acad­e­my Award for Best Actor, the media announced that Casey Affleck had been accused of sex­u­al harass­ment twice, both times set­tling the cas­es out­side of court.33Addi­tion­al­ly, it was recent­ly report­ed that in Jan­u­ary, Bill O’Reilly, a for­mer Fox anchor, set­tled a sex­u­al harass­ment case with a for­mer net­work ana­lyst for $32 mil­lion.34Thus, Wein­stein will like­ly not suf­fer irrepara­ble harm since his wealth will afford him intel­li­gent, ade­quate coun­sel.

Even if Weinstein’s case makes it to tri­al, the pros­e­cu­tion will face prob­lems in con­vict­ing the celebri­ty because jurors are unlike­ly to con­vict rich, pow­er­ful men. Based on tri­als like those of Michael Jack­son,35 Robert Durst,36and Bill Cos­by,37jurors are less like­ly to con­vict these types of fig­ures based sole­ly on “who they are” – being famous, pow­er­ful, well-known men. I am dub­bing jurors’ ten­den­cy not to con­vict such men “the Jack­son Jux­ta­po­si­tion.”

When the Jack­son Jux­ta­po­si­tion occurs, jurors are less like­ly to con­vict rich, pow­er­ful men because of the eter­nal cog­ni­tive dis­so­nance it would cre­ate since many Amer­i­cans admire these men. Upon learn­ing that a pow­er­ful, rich man like Michael Jack­son is on tri­al for child molesta­tion, cog­ni­tive dis­so­nance is cre­at­ed in jurors’ minds.38In order to deal with this cog­ni­tive dis­so­nance, jurors will acquit or, in oth­er cas­es, give these famous men a less­er sen­tence than they would give to some­one less famous and less beloved.39Jurors do this because they start to human­ize these men by empathiz­ing with what they are going through. Jurors con­vince them­selves that these men made a mis­take that could have hap­pened to any­one.40By sid­ing with these high­ly regard­ed men, jurors over­come the cog­ni­tive dis­so­nance cre­at­ed by “the Jack­son Jux­ta­po­si­tion.” This process has result­ed in the vicious cycle of pros­e­cu­tors bring­ing their law­suits against pow­er­ful men only to have the jus­tice sys­tem fail in their efforts.41As a result, soci­ety even­tu­al­ly for­gets about the crimes com­mit­ted by these men because, (1) anoth­er sim­i­lar accu­sa­tion will be made about anoth­er pow­er­ful, rich man;42 and (2) the pre­vi­ous­ly accused will some­how “redeem” him­self, either through char­i­ta­ble acts or the release of a new per­for­mance cat­a­pult­ing their career even fur­ther.43

Rich, pow­er­ful men will like­ly not be pros­e­cut­ed unless Con­gress issues pol­i­cy reforms that ban the statute of lim­i­ta­tions for all sex crimes.44Con­gress must find a way to make it eas­i­er for the gov­ern­ment to pros­e­cute all sex­u­al offend­ers on the same lev­el play­ing field, regard­less of offend­ers’ socio-eco­nom­ic sta­tus. Steps should be tak­en by judges dur­ing jury selec­tion to ensure that poten­tial jurors do not have a bias toward one of these celebri­ty defen­dants. More­over, soci­ety should nur­ture a safe envi­ron­ment where women feel com­fort­able com­ing for­ward to express harms that have occurred. The Amer­i­can peo­ple should push back on the gov­ern­ment when it fails to pros­e­cute these rich, pow­er­ful men. Men should hold oth­er men account­able in the indus­try for their actions and show that they will not stand idly by as these female col­leagues are forced to go through this sex­u­al hell through­out their career.

While  the Har­vey Wein­stein alle­ga­tions have led to oth­er orga­ni­za­tions hold­ing men account­able for their actions,45there is very lit­tle cer­tain about the future of crim­i­nal­ly pros­e­cut­ing rich, pow­er­ful men for sex crimes. How­ev­er, as of now, one thing is cer­tain: Har­vey Wein­stein is not the first to sex­u­al­ly assault women and he will not be the last.46In a soci­ety where high-sta­tus men are not held account­able for their actions, they will face no down­fall. To the con­trary, these men man­age to turn their careers around fol­low­ing the accu­sa­tions and can, in fact, improve their rep­u­ta­tion due to their wealth and pow­er.47 Just look at Don­ald Trump: a rich, pow­er­ful man can be accused of sex­u­al­ly assault­ing and harass­ing mul­ti­ple women and still be elect­ed Pres­i­dent of the Unit­ed States.48