It’s time to look at rape laws
Harvey Weinstein’s case goes to jury
Harvey Weinstein’s fate is now in the hands of a Manhattan jury, and they might just set him free.
It’s not that the women who testified weren’t credible, it’s that rape law in New York, as in most states, is exceedingly generous to rapists. Foremost among the problems is that prosecutors have to prove that the act was nonconsensual and forcible. Put another way, rape without force is perfectly legal in New York — and in Massachusetts, too.
The two women involved in the New York charges testified that Weinstein raped them with force in 2013 and 2006, respectively, but there was also testimony about how they submitted to aspects of Weinstein’s offensive behavior because of the power he had over their careers.
Most commentators have said the problem with the prosecution’s case is that the women stayed friendly with Weinstein after the alleged assaults. The defense argued this proves consent because a “real victim” would never stay friendly with her attacker. Bill Cosby’s lawyer said the same thing.
It’s easy to understand why a rape victim would stay friendly with a guy who wields a lot of power over her, even having consensual sex with him after the fact. Most want desperately to think they weren’t raped, and staying friendly helps with this false narrative. All raped wives had consensual sex with their attackers before the crime, and many did afterwards. It’s the nature of the relationship and the horrendous way the law defines rape, not women’s free will, that produces the friendly contact.
There’s a lot riding on the jury’s verdict because the case comes at a time when women across the country are speaking out about inadequate prosecution and punishment rates. It helps that Cosby is behind bars, and Weinstein may well be convicted, but both men allegedly hurt a lot of women before they were held to account. One victim should have been enough. A couple of token prosecutions won’t change anything if the law stays the same.
Win or lose, it is good that Weinstein at least faced charges. Most allegations against people who wield power over their victims never lead to prosecution because they don’t have to use force to get what they want. They use their power to coerce victims to submit, and that’s not a crime. Such victims can and do file lawsuits because the legal standards and offense definitions are easier to prove, but that means wealthy offenders can make it all go away with a check.
A legal system that treats rape as a behavior to be resolved with a payout, rather than incarceration, means women learn to treat their suffering as a commodity to be traded rather than a crime to be reported. This is not equal justice for anybody.
Between now and when the law is changed in every state to allow for criminal prosecution of nonforcible rape, let’s hope women learn from the Weinstein case that they can stop unwanted, nonforcible sex by never submitting — even if it means not getting promoted.