Illustration by Hanna Barczyk
Am I supposed to feel sorry for Harvey Weinstein now? He looks so fragile and broken, leaning on his legal advisers as he shuffles into a Manhattan courtroom. In his entourage, one minion is charged with carrying his walker, its feet encased in a pair of sad little tennis balls. Was this really the man who bestrode Cannes like a colossus, pounding on hotel doors in the middle of the night as he allegedly preyed on young women with a bottle of baby oil in one hand? If I were a voting member of the Academy – that valuable Hollywood cohort that Mr. Weinstein once loved to woo – how would I judge this performance?
For once, Hollywood’s opinion doesn’t matter. Mr. Weinstein’s fate – he is facing five felony counts of rape and sexual assault – will be judged by the seven men and five women on the jury at his trial. Will they see the frail spectre that the defence has presented, or will they see the powerful bully that assistant district attorney Meghan Hast called “a sexual predator and rapist?”
Even with a string of 100 women accusing him of sexual harassment or assault, Mr. Weinstein still benefits from a societal inclination toward “himpathy,” which is philosopher Kate Manne’s word for “the flow of sympathy away from female victims toward their male victimizers.” We see himpathy everywhere – in the leniency shown to “nice young men” accused of sexual assault, in the exhaustion and backlash over the #MeToo movement. Mr. Weinstein is hardly the world’s most himpathetic figure, having famously ruined or threatened to ruin the careers of women who would allegedly not succumb to him, but the women who accuse him will be villainized all the same. Long before the trial began, Mr. Weinstein’s legal advisers planned a smear campaign against some of his other accusers, as New York Times reporters Jodi Kantor and Megan Twohey revealed in their book, She Said: Breaking the Sexual Harassment Story that Helped Create a Movement.
Already, Mr. Weinstein’s defence team is planning to use the complainants’ continued contact with him as proof that their relationships were consensual, despite the fact that sexual-assault victims are known to sometimes maintain ties with their attackers for a variety of reasons, none of which negate the crime. (In this trial, Mr. Weinstein is accused of forcing oral sex on a former production assistant in his apartment in 2006 and raping an aspiring actress in a New York hotel room in 2013. Actress Annabella Sciorra, who says that Mr. Weinstein raped her in the early nineties, will also testify, although her allegations are too old to form part of the charges.)
Mr. Weinstein’s team has been fighting dirty and there’s no indication that will stop. Getting him acquitted is the lawyers’ job; himpathy is one way to get there. The women testifying in this case will surely know what they face: the uprooting of their lives and identities, the questioning of their choices – sexual and otherwise, insinuations about just what they would be willing to do to get ahead. There would be no “victim shaming,” one of Mr. Weinstein’s lawyers insisted, a statement that would be laughable in other circumstances. Ask the victims whether they feel they’re being unfairly shamed, and see what they say.
I’ve often wondered whether I’d have the courage to come forward, have all my dirty laundry aired for a voracious public, in the name of justice. I’m not sure I would. I’ve heard enough about what happens to women who do – even those whose cases are successful. To name just one: Andrea Constand, who was drugged and raped by Bill Cosby in 2004, wrote a victim impact statement in which she laid out the consequences of hearing herself picked apart during two criminal trials: “These character assassinations have caused me to suffer insurmountable stress and anxiety.” Having to go over every aspect of the attack in court made her feel “traumatized all over again.”
My colleague Robyn Doolittle has written an invaluable and nuanced book about sexual assault and the #MeToo movement, called Had it Coming: What’s Fair in the Age of #MeToo? In part, she looks at the consequences for women who came forward and had their stories ignored by police (which constituted her groundbreaking Unfounded series) and those who were not prepared for the gruelling business of sexual-assault trials. For example, Robyn spoke with Lucy DeCoutere, one of the accusers whose testimony was picked apart in the 2016 Jian Ghomeshi case (Mr. Ghomeshi was found not guilty on charges of sexual assault and overcoming resistance by choking.) “My health took a serious blow,” she said. She told Robyn that “her psyche was pretty much destroyed for a while” and that she didn’t go out or talk to strangers. But more recently, Robyn writes, “she’s heartened that people are talking about sexual misconduct and consent in ways they never did before.”
It’s true that we’re talking about it more. But are we thinking about it in new ways, or are we still bogged down in malignant stereotypes about whose life is going to be ruined and who maybe, just maybe, was asking for it? About who deserves pity and who does not? As you watch a series of women relive catastrophe in front of the man they accuse of causing it, knowing that they will live in continued pain whatever the outcome, ask yourself what strength actually looks like.
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