Harvey Weinstein’s lawyer called the wife of Gov. Gavin Newsom, one of four women whose accounts of forced sex formed the basis for the charges against Weinstein, “just another bimbo” who engaged in what he described as “transactional sex.”
The jury hung 8-4 in favor of conviction after she testified that Weinstein’s aides left her alone in his hotel suite with the mogul.
In the other case that the defense branded as transactional sex, where the complaining witness was a masseuse who received a book contract, the jury acquitted.
The headlines, “Weinstein Convicted of Rape,” were based on three counts relating to a woman identified as Jane Doe, who testified that Weinstein followed her uninvited to her hotel door, pushed his way into her room, grabbed her by the hair and forced himself on her.
In that case, Weinstein didn’t claim that the sex was part of a transaction; he denied any sexual relationship at all. It was the same tact taken with a second complaining witness, Lauren Young, whose testimony resulted in a jury hung 10-2 in favor of conviction.
The Weinstein case has been held up by some as the epitome of the #MeToo movement and by others as an example of its excesses. Both were on display in this trial. It was a case that would never have been brought 10 years ago, when all of the women involved would have been dismissed if not as “bimbos” then as willing victims, if there can be such a thing. But it turned out to also be a case that shows just how difficult it is to secure a conviction, and it raises questions as to where the line is between a bully and a criminal.
There are some who argue that any form of pressure or coercion, any abuse of power, that leads to acquiescence is prohibited, or should be, as rape. That is simply not the law. In the workplace, abuse of power is a civil wrong, that is, sexual harassment. But the rules that protect against workplace harassment don’t apply to a famous movie producer you’re not working for. Should they?
Does a “yes” achieved by the abuse of a powerful position negate consent? Do we really want the law trying to define when yes means yes?
There is an inherent tension between efforts to protect women and those that could infantilize them. A professor having sex with a student certainly raises questions of Title IX (federal law) violation. But should it be a crime?
Is the casting couch, if that is really what it is, a crime?
Weinstein was not charged with transactional sex. He was not charged with abusing his power as a producer to lure women to his hotel suite where he offered them roles in exchange for their consent to sex. A bad deal, that might be, but not a criminal one.
No, what Weinstein was charged with and what the law prohibits is force, or forcible compulsion.
There are at least two things that jump out in press accounts about Jane Doe, the one woman whose testimony resulted in convictions. She didn’t go to his hotel room. He followed her uninvited to hers. Once he pushed his way in, she testified that he grabbed her by the hair and forced her to have sex. His lawyers denied the whole thing. Nothing newfangled or transactional about that.
It’s the rest of the case that remains to be untangled and understood. What about the masseuse, where the jury acquitted? The newspaper accounts made much of the fact that she got a book deal — a sign of a transaction, or a cover for a bad act? And what of the “first partner,” as she is called in California? His aides left her alone in his hotel suite. She was crying and shaking, she testified, crying and shaking. Was she not believed? If not her, who? Harvey Weinstein may be the poster boy of #MeToo, but in Los Angeles, at least, it came down to the account of only one woman who will put him behind bars.
