Politics

What Kind of Woman Defends Harvey Weinstein?

Donna Rotunno’s arguments are bad. They’re not worse because she’s a woman.

Donna Rotunno and Harvey Weinstein.
Donna Rotunno and Harvey Weinstein arrive at New York City Criminal Court on Jan. 21. Jeenah Moon/Getty Images

Harvey Weinstein’s lead defense attorney has been busy. For the past few months, when Donna Rotunno hasn’t been cross-examining the multiple women who’ve accused Weinstein of sexual assault, she’s been making the disgraced producer’s case to the press. In recent interviews with multiple media outlets, she has painted Weinstein as the victim of an overzealous #MeToo movement that has prematurely declared him guilty without giving due scrutiny to the stories of his accusers.

Weinstein has been charged in New York with assaulting two women: Jessica Mann, who says he raped her two times in 2013, and Mimi Haleyi, who says he sexually assaulted her in 2006. Rotunno’s position is that these sexual encounters were consensual. “I think it’s easy to look back and say, ‘Oh, you know, maybe I didn’t love that experience.’ Well, OK. Regret sex is not rape,” Rotunno told Vanity Fair. “Having voluntary sex with someone, even if it is a begrudging act, is not a crime after the fact,” she told the New York Times. In court, Rotunno has highlighted some friendly sounding correspondence Mann exchanged with Weinstein after the alleged assaults. The attorney has also suggested that another accuser, who told her story of Weinstein raping her in 2005 as part of the prosecution’s attempt to demonstrate Weinstein’s alleged pattern of abusive behavior, wouldn’t have got in a car with Weinstein after her alleged rape if the sex act had been truly nonconsensual.

Much of the media coverage of Rotunno and her role in Weinstein’s trial has homed in on Rotunno’s gender, which she seems more than happy to discuss. When Rotunno appeared on Fox News in January, that’s what Martha MacCallum’s first two questions addressed. On Nightline, right out of the gate, Amy Robach asked Rotunno, “Do you think Harvey Weinstein hired you because you’re a woman?” The answer to that question, as Rotunno also told Megan Twohey at the beginning of a recent episode of The Daily, is yes. Almost every interview finds Rotunno explaining that her gender is an asset in her line of work. “I have the ability to get away with a lot more in a courtroom cross-examining a female than a male lawyer does,” she told a Chicago magazine reporter in 2018. “If he goes at that woman with the same venom that I do, he looks like a bully. If I do it, nobody even bats an eyelash.”

That Chicago magazine profile submits that Rotunno “might easily be seen as a traitor to her sex” for defending so many accused sexual assailants. (She’s represented about 40 such defendants, though Weinstein’s is her most high-profile case to date.) It’s an idea others have found equally compelling, whether as a summation of popular sentiment or as a narrative device. “Have you been accused of being a traitor to your own gender?” Robach asked Rotunno. “You must know a lot of women who see you as a kind of traitor,” prodded Twohey. A recent New York Times piece referenced Rotunno’s “unusual specialty,” one that made her a “paradoxical” character for deciding to “defend a man reviled by many women as the embodiment of chauvinism and sexual misconduct.”

It’s easy to understand this morbid fascination with a woman who decides to defend a steady stream of alleged sexual abusers, including Weinstein, who has been so publicly accused of numerous gruesome acts of violence against women. After all, it’s been women, largely, who have shared their stories of sexual assault, advanced legislative reforms to address sexual harassment, and mobilized against abusers in power in the years since those allegations became public. The disproportionate presence of women as both alleged survivors and activists in the Weinstein story, and in the broader history of sexual violence, has created the impression that the #MeToo movement is a battle of the sexes—that women share a particular set of knowledge and experiences, and now they’re striving to make them legible to men.

But the story of harassment—who understands it, who experiences it, who wants to fight it—isn’t uniformly split along gendered lines. And the implications of this leering preoccupation with Rotunno’s gender are troubling. By framing the vigorous defense of a man accused of sexually assaulting more than 80 women as a traitorous act to womanhood in particular rather than humanity in general, this narrative suggests that women bear more responsibility for shunning sexual abusers than men. It lends credence to the erroneous idea that women are more morally discerning than men, especially when it comes to evaluating the character of accused sex criminals. It is unduly patronizing (to women) and exculpatory (to men) to expect women to know better, or to be better, just because they belong to a demographic that is disproportionately victimized by rape.

As a practical matter, it’s not surprising that Rotunno would choose to make her living representing men accused of sexual assault. There’s a lot of money in it if you get the right clients. And in today’s legal system, defending people accused of rape is still a pretty good bet. Of rapes that are reported to the police, only about 18 percent lead to an arrest. Nineteen percent of those arrests are referred to a prosecutor, and less than two-thirds of those prosecuted cases end in a felony conviction. That conviction rate is just slightly higher than the national average for felony defendants and significantly lower than the rate for many other crimes, including driving-related felonies, murder, burglary, and drug trafficking. And, to take Rotunno’s word for it, her gender might help her beat the odds, because she can get away with a more aggressive cross-examination of the alleged victim, and jurors might place more value in her endorsement of Weinstein than they would a man’s. (She does have a particularly good track record: She’s only lost one of her sexual assault cases to date.) If we believe people of all genders should be incensed by sexual violence, Rotunno’s combination of gender and specialty ought to be no more “paradoxical” than a male lawyer who defends men charged with murder, a crime whose victims are 77 percent men.

Women who defend rape culture, gender inequality, or white supremacy are often regarded as curious anomalies in ways that belie their prevalence. White women have long trended Republican; it should have been no surprise that a majority of them selected a racist, sexist Republican for president over his female opponent in 2016. Some of the most famous anti-feminists of history, including notorious Equal Rights Amendment antagonist Phyllis Schlafly, have been women. Though female Democrats are more likely than their male counterparts to say abortion should be legal in all cases, among all Americans, there is barely any gender gap in opinions on abortion rights. The vast majority of advocates for feminist causes and reproductive rights are women, but women also make up a not-insignificant segment of those advocates’ opponents.

The familiarity of Rotunno’s arguments in defense of Weinstein speaks to the commonplace nature of her ideological position. She conflates social reproach with criminal conviction, arguing that the #MeToo movement has stripped the accused of his right to due process while defending him in what is his due process right to a trial. She says women have infantilized themselves by taking on “victimhood status.” She claims that women are relinquishing some hard-fought progress on issues of sexual freedom and gender equality by failing to take responsibility for their own sexual choices. She says she’s never been sexually assaulted “because I would never put myself in that position.” She wonders why Weinstein’s accusers went to his various hotel rooms if they didn’t want to have sex with him and, once they were there, why they didn’t leave as soon as he made his first move.

In these statements from Rotunno, repeated in almost every interview she’s done, there are echoes of other women who’ve criticized the #MeToo movement in years past—of advice from Bari Weiss, who wrote, “If he pressures you to do something you don’t want to do, use a four-letter word, stand up on your two legs and walk out his door.” There are notes of Katie Roiphe, who wrote that acknowledging that some men “target” drunk women construes women as “helpless and passive,” and who further observed that “on some subterranean level of this [sexual harassment] conversation all men are presumed guilty.” There are hints of Daphne Merkin’s pleas for women who complain about harassment to “grow up.” There are traces of Caitlin Flanagan, who believes that many of today’s alleged survivors of abuse are simply regretting consensual sexual encounters from their pasts. There are whiffs of Emily Yoffe’s claim that some women get a “thrill” out of denouncing people and declaring themselves victims. And there’s a hardy throughline of the heavily deployed “believe all women” straw man—a clever transmutation of the actual activist entreaty to “believe women”—that Rotunno and several of these other women have used to portray the #MeToo movement as a hysterical overcorrection.

Almost all of these writers have taken great pains to distinguish between Weinstein himself and the men they’re defending, between the alleged serial rapist whose accusers helped kick off the contemporary #MeToo movement and the innocent, if caddish, men who are just trying their best to interpret the cues of the women they’re trying to sleep with. In some way, these women seem to have decided that the magnitude and plenitude of allegations against Weinstein established his behavior as a nearly unreachable threshold for the #MeToo movement that would follow, casting the comparatively lesser alleged misconduct of other men as beyond the scope of any responsible reckoning with sexual power dynamics. But in her press tour and courtroom appearances, Rotunno has used these #MeToo critics’ arguments to nudge that threshold so high that even Weinstein himself can’t meet it.

If that strategy works, even slightly, to sow public doubt about whether Weinstein should be held accountable for his behavior or whether it is all simply one big misunderstanding blown out of proportion by hysterical women, it’ll be a remarkable accomplishment. It will also have been made possible by, even laundered through, Rotunno’s gender. When women affirm sexist notions, such as the belief that women who speak out about assault are vindictive wannabe victims who won’t be held accountable for their own promiscuous behavior, it gives cover to people of all genders who are invested in keeping those notions alive.

This special role for women who prop up misogyny is also inextricably bound up with the “traitor to your sex” narrative, which rests on the idea that all women have common interests and a common experience of womanhood. The assumptions that lead some people to feel more shock and disgust for Rotunno than they could muster for a male Weinstein defender are also the ones that make it possible for, say, anti-choice women to claim they’re qualified to declare abortion “bad for women’s health” or for female Kavanaugh supporters to use their gender to lend credibility to their belief that his alleged treatment of women is acceptable. It also makes it possible for Rotunno to come off as less of a bully to judges and jurors when she’s badgering an alleged survivor of sexual assault on the witness stand, as she’s noted in several interviews.

When we make womanhood shorthand for virtue, or for a certain set of feminist principles—in other words, when we tie feminist beliefs to gender—we give anti-feminists an easily exploitable tool for their own ends, too. Some white women support Trump in spite of his sexism because they believe they benefit from his racist policies. Though she is a woman, Rotunno benefits from the promulgation of sexist ideas about alleged rape survivors, because she works for alleged rapists. Indeed, the ire that she attracts has another added benefit for her cause: Every question she’s asked about her gender is one fewer she has to answer about her client.