The Meaning of Harvey Weinstein
#MeToo makes due process hard to sustain.
Even those who worry that #MeToo has gone too far tend to think it started out right. Four years after October 2017, when the movement was ignited by allegations against Harvey Weinstein, many have begun to question its disregard of due process and its lack of mercy. No longer is it mandatory to “believe all women”—certainly not Tara Reade—and it is becoming possible to defend the accused, some of whom are being restored to respectability.
But even if every other target of #MeToo were rehabilitated, Weinstein would stand condemned. A nation that agrees on little else is confident of his guilt. For the progressive left, he is the monstrous embodiment of white male privilege. For the populist right, he is the hideous face of Hollywood values and coastal decadence. Weinstein’s 2020 conviction in a New York court of two felony sex crimes seems to confirm these beliefs. Weinstein is not merely another bad man. He is a figure of unique evil, a symbol of all that is wrong in society.
A New York appellate court is now scheduled to hear Weinstein’s appeal. Few people know that he was acquitted in New York on the two most serious counts brought against him. Even fewer understand the dubious methods employed to put him behind bars. Lacking a firm basis in evidence, the charges against Weinstein rested instead on novel ideas of consent, conspiratorial accounts of power, and gross caricature. Weinstein now faces a second trial in Los Angeles. One hopes this trial results in a more justifiable verdict than the first, whether that means conviction or acquittal. But Weinstein is unlikely to receive a fair hearing so long as his unjust conviction in New York stands.
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Before his trial started, Weinstein had been found guilty by the media. In October 2017, Ronan Farrow published an article in the New Yorker in which Lucia Evans, a former aspiring actress, accused Weinstein of forcing her to fellate him. The New York Times had already reported allegations that Weinstein had a history of sexual harrassment, but Farrow’s article went further. It contained, in the words of Ben Smith, “the first clear, on-the-record claim” that Weinstein had committed an act that could be prosecuted as rape. But as Smith went on to detail in his capacity as media critic for the Times, there were grave flaws in Farrow’s reporting.
When Evans met Weinstein, she was with a friend. This woman, in whom Evans confided at the time, was well-positioned to corroborate Evans’s claims. But when a fact checker for the New Yorker contacted the friend, she said only that “something inappropriate happened.” This fell short of corroboration. Worse yet, when interviewed by a detective, the friend directly contradicted Evans’s claim, saying that Evans had described the encounter as consensual.
As Smith noted, “A fundamental principle of the contemporary craft of reporting on sexual assault is corroboration.” Conventionally, corroboration lends credence to an allegation, and lack of corroboration weakens it. But this convention runs counter to the spirit of #MeToo, which insists that all allegations lodged by women must be believed. Farrow’s reporting was not sloppy. It adhered carefully to a new set of standards that rendered the old standards illegitimate. In 2018, Farrow received the Pulitzer Prize for journalism. The committee cited his “explosive, impactful journalism that exposed powerful and wealthy sexual predators.”
Farrow’s article established patterns that would be observable throughout the Weinstein case: Journalistic and legal principles of long standing were swept away by a tide of moral urgency. Government officials proved no more impartial than the crusading journalists. For instance, the detective who had been told that Evans’s encounter with Weinstein was consensual failed to communicate this crucial fact to prosecutors. Instead, according to Evans’s friend, the detective told her that the answer she had given the New Yorker was more consistent with what Evans had said and that going forward “less is more.” (The detective admitted to not relaying her testimony but denied having said what she reported.)
Farrow’s article established another theme, one that would culminate in the trial: the depiction of Weinstein as a particular kind of monster. The prosecution and its witnesses described Weinstein as aggressive, manipulative, and conniving, filthy, foul smelling and hideously deformed, a well-traveled habitue of Hollywood and New York who preyed on the young. Farrow reported that Weinstein had performed oral sex on Asia Argento, an Italian actress, without her consent. Argento described Weinstein as a nightmarish creature: “It’s twisted. A big fat man wanting to eat you. It’s a scary fairy tale.”
Argento’s image of Weinstein was hard to reconcile with reality. She acknowledged that she had entered into a relationship with Weinstein after the alleged incident. He “dined with her and introduced her to his mother,” and over the course of five years, they continued to have consensual sex. Public support for Argento cooled in 2018, when she paid $380,000 to Jimmy Bennett, a former child actor who had once played her son. Bennett claimed that Argento had sexually assaulted him in 2013, when he was 17 and she was 37. As part of the settlement, Argento received copyright to a selfie showing her and Bennett in bed, their naked torsos visible. The revelation of the payout and publication of the photograph damaged Argento’s credibility, but her “scary fairy tale” description of Weinstein stuck. In her opening statement for the trial, prosecutor Meghan Hast described Weinstein as “the old lady in the gingerbread house luring the kids in, missing the oven behind.”
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When Weinstein’s trial began in 2020, his guilt was already treated as a certainty. Perhaps that is why the judge and prosecutors treated due process as unnecessary. When guilt is assumed, evidence becomes extraneous, and legal technicalities must be overlooked when the alternative is letting a monster go free. The court’s disregard for due process was already apparent during jury selection. Prospective jurors were asked, “Is there anything … you believe the judge and the parties should know about your qualifications to serve as a fair and impartial juror in this case?” Juror No. 11, a novelist named Amanda Brainerd, answered, “No.”
In fact, Brainerd’s professional interests were tied to the outcome of the case. Her debut novel, Age of Consent, was scheduled to be published that year by Penguin Random House. It tells the story of young women who bounce between boarding school and New York as older men offer them mentorship and advancement in exchange for sex. Brainerd’s personal webpage described the book as one in which young women “negotiate fraught friendships, sexuality, class and predatory older men.” But when questioned in pre-trial proceedings by defense counsel Damion Cheronis, Brainerd denied that her book had anything to do with “predatory older men”:
Q: Does it have anything to do with predatory older men?
A: All three girls have some relationship with an older man but it’s not a predatory situation at all.
Q: Was there any press about it, about it being about predatory older men?
A: Not that I am aware of. There hasn’t been very much press about it.
Q: Okay. Did you do any research into predatory older men or victims of sexual assault in writing that book?
A: I didn’t because of—it’s really not about that.
Q: Does it have anything to do with sort of individuals who may, young women, who may be involved with older men that may be considered predatory?
In February 2020, Brainerd voted to convict Harvey Weinstein. By July, she was appearing in promotional events for her book that mentioned her role in the trial. In one interview published that July, she suggested that the Weinstein case might continue to play a role in her literary career: “Who knows? The trial might be inspiration for a future novel.”
Brainerd’s presence on the jury was the most flagrant violation of due process in the Weinstein case, but it was not necessarily the most serious. Like that of Bill Cosby, whose conviction was recently overturned on appeal, Weinstein’s trial was unusually reliant on so-called Molineux evidence—witnesses who testify that the defendant committed bad acts or crimes with which he has not been charged. Use of such testimony is tightly limited, because it risks stripping the defendant of his presumption of innocence and relieving the prosecution of its burden of proof. It can lead a jury to convict a man because of what it assumes about his character, rather than what it has learned about his conduct.
More than half the trial was taken up with this kind of evidence. Weinstein was charged in connection with incidents involving three women: Jessica Mann, Miriam Haley, and Annabella Sciorra. Four other women—Dawn Dunning, Tarale Wulff, Lauren Young, and Emanuela Postacchini—alleged six additional instances of misconduct. Mann was also permitted to testify about two further alleged bad acts with which Weinstein had not been charged.
Quantity was no guarantee of quality. Tarale Wuff’s memories of her alleged assault—initially too “fragmented” for the prosecution to use—were reconstructed after fifty-five visits to a trauma therapist. Lauren Young initially told detectives that she had seen Weinstein’s testicles, the existence of which Jessica Mann had denied. (According to a report in Air Mail, in 1999 Weinstein contracted Fournier’s gangrene, a genital infection sometimes treated with orchiechtomy.)
In October 2017, Dawn Dunning was quoted in the New York Times saying that Weinstein had once offered her film roles in exchange for sex. Almost two years later, in July 2019, she called the Manhattan district attorney’s office with a far more serious allegation: that on a separate occasion, Weinstein had digitally penetrated her without her consent. She had not told her boyfriend about this incident, whereas she had told him about the film-role quid pro quo. Nor had she mentioned it in any of her many interviews—with the New York Times, with CNN, with MSNBC, and with “five or six” assistant district attorneys.
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Weinstein’s conviction resonated with the broad sense that he is a bad man, a feeling likely to be shared by anyone who deplores adultery or the casting couch. But as some of the trial’s closest observers noted, there were reasons to doubt that Weinstein—whatever his sins—was guilty of the crimes with which he was charged. JoAnn Wypijewski, who covered the trial for the Nation, expressed her skepticism in the best contemporary account of the case. Another skeptical view was offered by Ann McElhinney and Phelim McAleer, whose podcast provided the most extensive coverage of the trial.
Annabella Sciorra was the most famous of the three women whom Weinstein was charged with violating. She testified that Weinstein had come to her apartment one night during the winter months of 1993 or 1994. Despite arriving uninvited and unannounced at her tony address on Gramercy Park North, he somehow got past the building’s doorman. He forced himself on Sciorra despite her “punching him, kicking him, just trying to get him away.” Why did she not report the crime to the police? Sciorra told the court that she had not understood that the act was criminal. She had thought that “rape was something that happened, you know, in a back alleyway, in a dark place by somebody you didn’t know with a gun to your head.” She was 33 at the time, several years into a successful career as a film actress.
In Sciorra’s telling, this was not the only time Weinstein overwhelmed her agency. He had earlier compelled her to star opposite Matthew Broderick in the Miramax film The Night We Never Met (1993). Then he got her addicted to valium by sending her a care package containing a bottle of pills. Several years after the alleged assault, he would force her to appear opposite Sylvester Stallone in Cop Land (1997). On cross-examination, Sciorra claimed she had been “tricked into” appearing in Cop Land, at first not realizing that it was a Weinstein film and then “being threatened with a lawsuit” if she didn’t take the part.
Weinstein’s accusers not only claimed to have endured sexual acts to which they had not consented; they claimed to have been forced to take roles in prestigious films or accept coveted jobs. Their accounts were strange not because coercion must always be direct and physical—of course it need not—but because they failed to explain how or why Weinstein compelled them to do these things. The prosecution exaggerated Weinstein’s powers as it diminished his accusers’ agency.
On July 10, 2006, Miriam Haley claimed, she went to Harvey Weinstein’s apartment, where he forcibly performed oral sex on her. About two weeks later, on July 26, she met him at the Tribeca Grand Hotel, where a second sexual encounter occurred. Unlike the first, Haley said, this one was not forced.
Why had Haley gone to see Weinstein again? Prosecutors suggested that Haley had no choice but to return to the man they described as “the monster in her nightmare.” Though unable to explain any practical way in which Weinstein could threaten Haley, the prosecution insisted that he “was so manipulative and imposing and the powered [sic] dynamics so skewed that even after [being] violently assaulted, Miriam was afraid to offend him.”
This account of fear and power within their relationship was undermined by Haley’s own testimony. Roughly six months after the alleged assault, in February 2007, Haley met Weinstein at a hotel in London, where she pitched him an idea for a new TV show. Haley testified that she had “no fear of going to Weinstein’s hotel” and “felt fairly safe” there. In May 2007, while she was in Cannes, she emailed Weinstein mentioning that she was staying in a private apartment and asking for a ticket to a film screening.
Nowhere was the prosecution’s minimization of women’s agency more striking than in its description of Jessica Mann, another of the women Weinstein was charged with assaulting. The prosecutors presented Mann as an innocent, relying heavily on the fact that she was, in a prosecutor’s words, “raised in the evangelical church in a small dairy town.” They proposed that “Jessica, although having lived in L.A. for a few years, had not lost her naivety” when she met the cunning Harvey Weinstein, and that Weinstein, ever alert, “sensed the newness of his next victim.” Mann’s rural and religious background was invoked repeatedly to suggest that she was easily manipulated by the urbane Weinstein.
Perhaps this line of argument can persuade a Manhattan jury, but nothing will seem more laughable to natives of flyover country. Closeness to cattle does not guarantee innocence. Attendance at Sunday services does not make one incapable of perversity. Speaking as one born in Nebraska, raised in an evangelical church, and now residing in New York, I feel comfortable saying that Christians from the heartland are not per se less devious than people born in the city to a different faith.
In any case, the prosecution’s image of Mann was undercut by evidence presented at trial. Her profane texts, her heartfelt letter to a boyfriend, and her self-deprecating account of a failed threesome showed her to be not a bumpkin virgin but a complex, erring, and often perceptive woman. In an email to her boyfriend, Mann said that Weinstein had “always been very nice” to her. She described him to a friend as her “spiritual soul mate.” And yet on the witness stand she presented him as a monster. He was so vile that he not only forced her sexually, he compelled her to be hired by the celebrity stylist Frédéric Fekkai:
Q: Well, at one point, Ms. Mann, Mr. Weinstein helped get you a job cutting hair, is that right?
A: Against my will, yes.
Q: He helped you get a job against your will?
In its closing statement, the prosecution told the jury: “Inconsistency … that’s the hallmark of truth.” If other evidence or testimony contradicts what a woman says, that only indicates her sincerity and lack of guile. Whether the accusations against Weinstein added up or not, they had to be believed.
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Weinstein’s case is an example of what happens when due process is disregarded. But it is also a reminder that in certain situations due process is hard to sustain. Even the most cherished legal forms and procedures will be imperiled when high expectations run into disappointing reality.
Sexual assault allegations are usually understood in terms of the relations between men and women, old and young. But often they are just as usefully viewed in terms of the divide between rich and poor. Obviously, the friction between wealth and poverty creates opportunities for abuse. It also creates incentives for false accusation when there is the possibility of financial reward. Vast disparities in wealth are dangerous, especially when clear rights and duties have been replaced by informal relations and the pretense of equality. As when a thunderhead passes over dry plains, when great wealth rubs up against relative poverty there is bound to be an explosive charge.
This dynamic was observable in the case of Jerry Sandusky, the retired Penn State assistant football coach who was convicted in 2012 of forty-odd counts of sexual abuse of minors. Penn State University is a wealthy institution fully integrated into the modern economy—and surrounded by depressed towns that once hummed with industry. At present, its endowment totals $3.4 billion. Centre County, where it sits, is more prosperous than all its neighbors; three of the six adjoining counties are among the state’s bottom ten in per capita income. Sandusky, a Methodist who spent much of his time running a charity fortroubled youth, straddled the very different worlds of the campus and the trailer park. His case allowed for a rough form of redistribution, in which $118 million passed from Penn State or its insurers to people in the depressed hinterlands of the university.
A similar dynamic is at work in Weinstein’s case. #MeToo is in part a bid for compensation on the part of those who were promised much and given little. Numberless people enter the film industry in hopes of gaining the wealth and prestige that only a few will enjoy. They may get a taste of these things, as they attend exclusive events and the best parties. But in time the invitations dry up, as do the odds of a big break. They are operating in a lottery economy, in which contestants’ hopes are raised, then dashed. They will end up with less than people whose time, labor, and loyalty are compensated with modest but definite rewards.
The anger #MeToo channels is real. It stems not just from dissatisfaction with our economic order but from unhappiness with the mores that correspond to that order. Just as the lottery economy overpromises and underdelivers, so does the libertine ethic that has accompanied its rise. Sexual frankness and liberty, often seen as elements of the career woman’s freedom, frequently conceal her exploitation. For decades, Hollywood has reveled in jokes about the casting couch, overlooking the practice’s grim reality. (In 2013, while handing out the Academy Award for best supporting actress, Seth MacFarlane joked, “Congratulations, you five ladies no longer have to pretend to be attracted to Harvey Weinstein.”) Just as lack of public order breeds vigilantes, the abolition of sexual restraint calls forth ad hoc forms of retribution. Malefactors, real or perceived, are bound to be targeted brutally.
Denouncing a man is easier than challenging an order with which one is complicit. Insofar as it casts a few men as devils in order to avoid criticizing practices in which many take part, #MeToo is cheap moralism. Insofar as it scapegoats certain people without challenging the structure of the economy, #MeToo is a socialism of fools.
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Because Weinstein’s prosecutors could not prove the crimes with which he was charged, they presented him as a monster who deserved to be hated by virtue of who he was. The prosecution witnesses and attorneys described Weinstein as a “savvy New York City businessman” and “famous and powerful Hollywood producer” who “travel[ed] a great deal.” They called him “manipulative,” “conniving,” “devious,” “aggressive,” a “seasoned predator” who asked prying questions about money and “dominated” industries. They told the jury that he was “overweight,” “sloppy,” “hairy,” “had moles … on his rolls,” a “lot of black heads,” and could be heard “grunting.” His genitals—“deformed,” “disgusting,” “intersex”—emitted something “vile.” He “smelled like … shit” and “just was dirty.”
By contrast, his victims were “truly innocent women,” “pawns being pushed around,” “rag doll[s]” whom Weinstein was “always keeping…in his control.” Their innocence and inexperience was exemplified by Jessica Mann, whose rural and religious background contrasted with that of Weinstein, born to a diamond cutter in Queens. As the prosecution put it in its opening statement, “Harvey Weinstein had so effectively manipulated and secured this young Christian from the dairy farm in his mental grip, that even after that violent encounter, Jessica Mann will tell you how she … continued to pretend she wanted to see him.” Like all the other victims, this young Christian was thoroughly controlled by the devious Weinstein.
In the Weinstein case—the one that started #MeToo and distilled its vision of mankind—the man was assumed to be all-knowing, all-powerful, and malevolent. The women were presented as naive, innocent, and without agency. The well-traveled Hollywood and New York power broker was physically disgusting, but he used his economic power and political connections to feed on youth and innocence.
The prosecution set up the case in simple and visceral terms, like a pulpy screenplay. It told an old story, one already adapted in the most successful German film of 1940. In that production, the wealthy Jud Süß leaves the ghetto, dons the finest clothes, and wins the confidence of the prince. But he cannot conceal his moral and physical repulsiveness. He is “clever but dreadful,” an “exploiter of people,” so foul-smelling that decent folk open the windows when he leaves a room.
At first, Süß’s powerful backer protects him, but there are limits to the peoples’ patience. His financial sharpness is one thing; his ill-treatment of women another. “The Jew has organized a meat market, and our daughters are good enough to be the merchandise!” an outraged townsman cries. The movie culminates with Süß’s violation of a naive Christian maiden, and it ends when he is hanged.
#MeToo rests on stereotypes—of men, women, and the relations between them. Its advocates insist that their movement is “intersectional,” and that the power structures they criticize are not only economic, but sexual, racial, and religious. Such an outlook, reliant on generalizations about identity, can poison the thought and rhetoric of someone with the best will in the world. In the end, Weinstein was convicted not because of his conduct, or his character, but because his accusers succeeded in replacing the human reality with a caricature.
Matthew Schmitz is senior editor of First Things and a columnist for The American Conservative.