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