Weinstein's Verdict Is Far Less Than We Deserved—Yet More Than We Dared Hope For | Opinion

This week, every woman I know heaved a sigh of relief. Since the trial against Harvey Weinstein started, we have been holding our collective breath, lowering our expectations and bracing ourselves against a very familiar disappointment and rage: seeing a man credibly and repeatedly accused of rape walk free.

Yet this man was accused by more than 80 women. He said on the record that when a woman says the sex wasn't consensual, "sometimes you have a write a check." He hired former Isareli intelligence operatives to spy on and manipulate his victims. He's the subject of several books alleging a pattern of abuse and deceit. And he faced six trustworthy and compelling witnesses in court.

Why weren't lawyers like me chilling the champagne in expectation of an obvious victory?

To understand how Weinstein ended up facing only five counts and was cleared of the three most serious is to understand just how incredibly difficult it is to bring a case for sexual violence in the United States. Weinstein is just an extreme example. Not every rapist has access to Black Cube's spy services, Bill Clinton on speed dial or the money to be a major donor to the district attorney's election campaign. But most rapists do share Weinstein's power over their victims. The vast majority of rapes are not perpetrated by some masked stranger charging out of an alley, but by someone known to the victim and, crucially, who holds some sort of power over her, be it physical, financial or reputational.

This power disparity explains why so many victims often do what has often seemed inexplicable to juries and pundits: They stay quiet, they don't report to the police, and, yes, they try to get along with the person who assaulted them.

After a long career representing such people, I can say: Of course they do. If someone more powerful than you has just searingly demonstrated that he can and will hurt you, and threatens further harm to you and your livelihood, it's an entirely rational response to avoid antagonizing him. If you can normalize in your mind this violent, terrifying act by papering it over with the outward trappings of a friendly relationship, that makes sense too.

Yet we have expected victims, at this most vulnerable moment in their lives, to tamp down every instinct for self-preservation and normality, and instead rise up to fight the person who just grievously harmed them. That's more than many people can bear to do, especially if they think they won't get a sympathetic hearing. And sadly, most victims still don't get a sympathetic hearing, much less the support and help they deserve.

To make sure more victims report and more rapists go to jail, we must first pump serious resources into the front-line personnel who will take victims' calls. Law enforcement, nurses, doctors, social workers, teachers—all must be trained to understand what sexual violence looks like and how to talk to victims, how to recognize and collect evidence. We need more than five crime labs in all of New York state, for example. We need to test rape kits and not let them molder on shelves, forgotten for decades. We need district attorneys who want to focus in this area, because it actually enhances their career. Cyrus Vance, the Manhattan DA who succeeded against Weinstein this time, had him on tape five years ago admitting he had assaulted Italian model Ambra Gutierrez. Before #MeToo, Vance apparently wasn't motivated to prosecute. Now, maybe others in law enforcement will see new possibilities.

Harvey Weinstein
Harvey Weinstein arrives at the Manhattan Criminal Court on February 24 in New York City. JOHANNES EISELE/AFP/Getty

Weinstein's lawyer, Donna Rotunno, said she had never been assaulted herself "because I would never put myself in that position." She said his victims were responsible for getting too close and not resisting harder. Fortunately, the jury correctly analyzed the rape perpetrated by Weinstein as his responsibility and his alone.

Rotunno also played on the centuries-old expectation that any conflict between what "he said" and "she said" should be resolved in favor of the male viewpoint. But prosecutors fought back with the main innovation of the Weinstein trial (and Bill Cosby's before him): the use of so-called Molineux witnesses, women not bringing charges themselves who can nevertheless personally confirm a pattern of misconduct. "He said, she said" became "he said, 80 women said." It's a powerful tool that turns our focus to the patterns that most abusers perfect over the years and dilutes attempts to discredit victims.

This strategy is great, but it isn't fair that it's necessary. It should be possible, normal, for individuals with credible rape accusations to be taken seriously even if armies of prior victims cannot be produced. An important pathway in that direction is greater public understanding about sexual violence, so that victims will naturally be afforded the same respect and empathy we give victims of crimes that do not involve sex.

This is why I haven't entirely exhaled yet, why I know we have so much work to do. The jury didn't find, after all those testimonies, that Weinstein had a pattern of abuse. They found him guilty of two individual acts, not a course of conduct. Until that bigger picture is something routinely acknowledged, we all need, together, to keep saying #MeToo.

Dr. Ann Olivarius is chair of the executive committee at McAllister Olivarius, a trans-Atlantic law firm specializing in harassment and discrimination.

The views expressed in this article are the writer's own.

Weinstein's Verdict Is Far Less Than We Deserved—Yet More Than We Dared Hope For | Opinion | Opinion