On Monday morning, a Manhattan jury found Harvey Weinstein guilty of two of the five charges prosecutors brought against him: criminal sexual act in the first degree and rape in the third degree. The jury also acquitted Weinstein of two counts of predatory sexual assault, the most serious charges prosecutors had brought against him, which would have required the jury to conclude that Weinstein had committed first-degree sex crimes against two or more victims. In other words, the verdict is a mixed bag: Harvey Weinstein has now been convicted of rape. The counts that he was acquitted on, however, seem at odds with the number of allegations that have publicly surfaced against him.
This was just one trial, set up to evaluate a specific set of crimes and circumstances. But it has been impossible to think of it as anything other than a referendum on the entire contemporary #MeToo movement. Weinstein was the person whose long-ignored abuses and alleged assaults spurred thousands of women to reassess their own experiences. Donna Rotunno, Weinstein’s lead attorney, has spent her weeks in the spotlight accusing rape survivors of failing to take responsibility for their own mixed signals and explaining how the #MeToo movement has denied men their due process rights, even as her own client was enjoying his in the courtroom. Since the fall of 2017, when dozens of women first shared their stories about Weinstein, countless defenses and dismissals of the sexual misbehavior of other men have rested on the conviction that if sexual offenses don’t rise to the level of Weinstein’s misbehavior, they don’t merit consideration under the purview of #MeToo. Weinstein’s trial morphed into the ultimate #MeToo test: If a jury couldn’t convict Weinstein, the benchmark against which all other alleged abusers are now measured, what hope does any other survivor have of holding a rapist accountable in the criminal justice system?
The two guilty verdicts against Weinstein seem like major wins for activists and advocates who see the case as an imperfect bellwether of shifting cultural beliefs about what constitutes sexual assault. Six women testified that Weinstein had assaulted them: the two victims whose assaults informed the criminal charges; Annabella Sciorra, who recounted being raped in the 1990s; and three other women who prosecutors brought in to establish a pattern in Weinstein’s behavior. To counter their stories, Rotunno and her team relied on fictions about how a “real victim of rape” reacts to an assault. The defense made much of friendly sounding correspondence some of the women exchanged with Weinstein in the months and years after their assaults; Rotunno questioned why they’d agreed to see him afterward if the sexual encounters were nonconsensual. Weinstein’s defense team asked jurors to believe that if a woman willingly gets in a car with her rapist after being raped, she has not, in all likelihood, been raped.
With their verdict, jurors rejected the perpetrator-serving definition of sexual assault that demands survivors respond to sexual violence in a predictable, identical fashion, the way most people who haven’t been raped imagine they would. They appear to have understood that some people respond to rape not by screaming, running, and calling the police, but by dissociating, appeasing, and attempting to normalize relations after the fact. They seem to have reflected on the ways physical and verbal intimidation, professional power imbalances, and self-preservation reflexes can shape the details of a sexual assault and its aftermath. The defense argued for a constricted framework of rape, one in which, in order to be believed, a victim would have to physically fight off her assailant (until, presumably, some unspecified point of injury and incapacitation), then spend the rest of her life telling anyone who’ll listen that one of the most powerful men in her industry has raped her. The jury refused to buy it. It is a testament to the work of the #MeToo movement’s advocates, many of whom had been doing anti-rape work for decades before Weinstein was publicly accused, that Jessica Mann and Miriam Haley’s stories were heard in all their complexity, subjected to the defense’s most punishing scrutiny, and still believed.
But the jurors’ not-guilty verdicts on the predatory sexual assault charges complicate the story of Weinstein’s conviction. Sciorra testified in court that after giving her a ride home from a restaurant in the winter of 1993–94, Weinstein entered her apartment, chased her as she tried to hide in the bathroom, pinned her on her bed as she fought against him, and raped her. During the trial, the defense dinged her on her inability to remember exact dates related to the assault, questioned why she didn’t immediately report the alleged rape to the police, and played a video of her telling David Letterman in 1997 that she sometimes fabricated stories for the press when she didn’t want to elaborate on her personal life. Weinstein’s lawyers also said Sciorra later told prosecutors of the alleged assault, “I didn’t report it because I didn’t think it was rape.”
The not-guilty verdicts indicate that at least one juror believed the defense attorneys who said this sex was consensual. In other words, at least one juror heard Sciorra’s story, plus the gutting testimonies of five other women who say they were assaulted by Weinstein, and still thinks that Sciorra was lying on the stand, or perhaps that she was retroactively rape-ifying a bout of consensual, if unpleasant or regretted, sex. This is somewhat remarkable considering the fact that Weinstein has been accused of sexual harassment and assault by more than six dozen women, many with strikingly similar stories of manipulation, threats, and violation, though most of those women didn’t testify in this trial. The vast majority will never get to face Weinstein in court, and he’ll never have to answer to most of their allegations. (Those who are eligible for a monetary settlement will receive a pittance.) Sciorra’s case was one of very few to make it before a jury. The acquittals on these two counts are disappointing.
One of the #MeToo movement’s core lessons is that sexual assault survivors are subject to the same cultural mythmaking around rape as everyone else. They absorb the same messages from people like Rotunno, who argue that if you enter a hotel room where a man is present, it’s your own fault if your night ends in sexual assault—that if you weren’t pulled into an unmarked van by a stranger, bound, and gagged, you weren’t actually raped. The #MeToo movement caused many people to reevaluate sexual encounters from their pasts and reclassify some of them. Survivor after survivor processed the fact that even if they’d been on a dinner date, or had consensual sex a month later, or had dismissed it as bad sex, it didn’t mean they hadn’t been raped. They realized and then declared that just because a person didn’t think he was raped at the time, or worked hard to convince himself he wasn’t, that doesn’t mean he’s wrong when he later realizes that he was. In sharing their stories, the participants in #MeToo tried to replace an impossibly narrow definition of sexual assault with a more accurate and expansive one.
With the not-guilty verdicts on the charges pegged to the Sciorra case, the Weinstein jury appears to have rejected this argument. No jurors have made their reasonings public yet, but I suspect that those who disbelieved Sciorra were swayed by the defense’s contention that she didn’t think she’d been raped then, so they shouldn’t believe her when she says she’s been raped now. Or maybe they got hung up on the “forcible compulsion” component of the first-degree rape description, which required them to agree that Weinstein had made Sciorra feel that she (or someone else, technically) was in immediate risk of death, injury, or kidnapping. Never mind that this is exactly what she said Weinstein did.
Whatever their thinking, the jurors’ decision to disbelieve Sciorra and let Weinstein off the hook on the predatory sexual assault charges will likely have a dramatic effect on his sentencing. It also makes it more difficult to interpret his conviction as a straightforward victory. Yes, Weinstein still faces charges in Los Angeles. But in Manhattan, the abuses and alleged abuses that were gruesome enough to launch an international movement against sexual harassment and assault were not enough to convict him of all the charges on the table.
When Sciorra first told her story to the New Yorker in 2017, she said she was partially motivated by the way some observers tried to downplay some of the initial allegations against Weinstein. “O.K., you want rape? Here’s fucking rape,” she said at the time. On Monday, the jury said, “fucking rape” wasn’t rape enough.