The Infuriating Status Quo of the Weinstein Settlement

The saddest part might just be the way women are still forced to look out for one another, because no one else will.

Weinstein, aided by a walker, exits a courtroom at the New York Supreme Court.
Harvey Weinstein in New York on Wednesday. Eduardo Munoz/Reuters

I almost regretted it when Harvey Weinstein was finally exposed, by both the New York Times and the New Yorker, as a serial predator with a method so practiced that dozens of victims independently described the same sickening steps he’d used. Weinstein was too complete a monster, and the dam these stories broke called for more nuanced discussions. I mean, he hired ex-Mossad agents to spy on and investigate his victims. He threatened an entire television network, got them to shut down all their reporting about him, and sent the executives a bottle of Grey Goose after it was all over. He made female assistants act as chaperones to put his victims at ease and then ejected them when he was ready to traumatize yet another woman. He smeared actresses like Gwyneth Paltrow by dishonestly propping them up as examples of what his victims could have if they only went along with what he demanded. He trafficked in nondisclosure agreements. He cajoled and bullied and begged and yelled.

And he also collected accolades and became one of America’s great men. When the hero story he’d so brutally enforced finally came crashing down, it was, I knew, good news. But he was also so awful, so uncontroversially abusive, that his example—when it came to trying to understand American patterns of harassment—served as an unhelpful outlier. “At least he’s no Harvey” became a cheap way to defend other, less egregious offenders. Harvey, we all expected, would be punished, but he’d also ground our collective expectations of powerful men so fully into the dirt that he made it unlikely that others would.

Now it turns out not even he is certain to face consequences. Megan Twohey and Jodi Kantor published a story Wednesday about the settlement Weinstein is close to reaching with the accusers who have brought civil suits against him. It’s a doozy. The agreement, which includes some 30 women the director allegedly harassed, assaulted, or (in some cases) raped “would not require the Hollywood producer to admit wrongdoing or pay anything to his accusers himself.” The $25 million, down from a $90 million victims fund that was contemplated at one point, would be paid by an insurance company for the Weinstein Company, which is now in bankruptcy proceedings because of everything Weinstein did. The agreement further stipulates that another $12 million would go toward legal fees for Weinstein, his brother, and other board members. It would also protect Weinstein and the board from future suits. In short: Besides not having to pay a dime himself, or admit to any wrongdoing, the millions of dollars it cost for the legal jiujitsu that made this extraordinary outcome possible will also be covered—by the company Weinstein’s own actions helped bankrupt. The victims, 18 of whom can get a maximum of $500,000 under this agreement, will be among other creditors trying to collect from the embattled company.

Yes, Weinstein’s criminal trial for the sexual assault of two women will take place in January. This is not the comfort it should be. For one thing, for many of Weinstein’s victims, especially those for whom the statute of limitations had expired, civil claims were the only legal recourse they had. This settlement weaponizes the very thing that convinced many of them to finally speak out: their desire to help other potential victims. The sheer number of lawsuits, and the class-action suit, were so extensive that resolving them all at once was seen as the best way to guarantee everyone would get some recompense, which plaintiffs cited as a chief priority.

The settlement also boxes them into a corner in much the way the nondisclosure agreements did—once they accept, they can’t pursue other litigation. And even if the acceptability of NDAs has taken a hit after we’ve all seen how much egregious misconduct they hide, enable, and even perpetuate, this is a disturbing reminder that there will always be another way for the powerful to deploy legal recourse for their own benefit. The results Weinstein’s legal team have already obtained aren’t incidental or an aside: They should be a reminder not to hold our breath for a righteous outcome in the criminal trial. Money means a lot in our legal system, and there’s little reason to think it will fail next time.

The bigger principle Weinstein illustrated was always that—like many powerful men—he’d coopted and corrupted the ordinary channels and made them work to his benefit. He was caught on tape, as part of a police sting, admitting to sexual assault. While pressuring model Ambra Gutierrez to go into his hotel room while he showered, over her objections, he told her he was “used to that” when she asked him why he’d grabbed her breast at their last meeting. The recording was shocking evidence. “We brought them a very good case,” a senior NYPD official told the New York Times. “He admitted, twice, doing it. That’s probable cause to make an arrest.” But it didn’t work.

To the consternation of many at the NYPD, New York County District Attorney Cy Vance (who’d received a $10,000 campaign donation from one of Weinstein’s attorneys, David Boies, in 2015) refused to prosecute. In response, the Special Victims Division launched an internal review of the last 10 groping complaints that had resulted in arrests. “They didn’t have a quarter of the evidence we had,” they told Farrow. In Catch and Kill, Farrow also recounts Weinstein’s astonishment when he heard that Farrow had the recording of his exchange with Gutierrez. Weinstein was surprised because he said his lawyers had negotiated with the district attorney to have the recording destroyed. This is the reaction of a man who expects that money and power will always protect him.

Weinstein’s behavior throughout the lawsuit shows that he still hasn’t lost that expectation. The man has yet to serve a single day behind bars—he was released on $1 million bail provided he wear an ankle bracelet. Not content with that, he seems to have started disabling it. As prosecutor Joan Illuzzi said at a hearing on Wednesday—to which Weinstein showed up with a walker, citing medical problems—Weinstein has deliberately “forgotten” a device that keeps his ankle bracelet activated while he’s gone out, leaving him unmonitored for hours at a time. A poorer man would have gone to jail over such a violation. The judge rejected that remedy and instead raised Weinstein’s bail from $1 to $5 million. He still made bail.

The story of this trial is simple. Weinstein was and remains focused on getting as much for himself, and as little as possible for the dozens of women he abused, while continuing to violate the law but remaining a free man. (So far, he’s pulling it off.) Meanwhile, the women he’s victimized have, in coming forward, mostly acted on behalf of others. A unifying theme across Farrow, Twohey, and Kantor’s books exposing Weinstein is how difficult it was to get Weinstein’s victims to go on the record. Violating their NDAs put these people in legal and financial peril at the very least, never mind the surveillance and threats. In case after case, the story is the same: They wouldn’t come forward for themselves. It was against their self-interest to do so. The argument that persuaded them to speak was almost without exception think of the other women he’s done this to and the women he will do these things to in the future.

It’s a sad irony that this very argument seems to be what is driving the settlement that’s letting Weinstein off easy now, too. Per the Times, Katherine Kendall, one of Weinstein’s alleged victims, was “disappointed by the terms but had agreed to them partly because she didn’t want to block fellow plaintiffs from getting whatever recompense they could.” “I don’t love it, but I don’t know how to go after him,” she told Twohey and Kantor. “I don’t know what I can really do.” She’s right, according to another alleged victim’s sexual harassment lawyer: Resisting this agreement in order to get Weinstein to (for example) finally admit guilt “might have left the alleged victims empty-handed. A combination of preliminary legal rulings against various plaintiffs, laws that protect boards against liability, and previous failed settlement efforts had put the women in a weaker bargaining position.”

In other words, it still doesn’t matter how much you have—recorded confessions, dozens of witnesses, testimonies from enablers and confidantes, even the exposure of malfeasance to the world. The victims were always in the weaker bargaining position. Maybe Weinstein will be convicted in spite of all this. But the story of this settlement seems to show that in this society, there is still no clear way to hold a man like this accountable, and there may be no clear way to get him—him personally, not a company he bankrupted, or an insurance company it retained—to admit what he did and atone for it. Which means the women who were harmed are still left to do the best they can to pick up the pieces for one another.

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