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| Jennifer Klein |
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| Rachel Vogelstein |
The verdict and sentence were groundbreaking for many reasons: Incredibly, the guilty verdict was won on the basis of survivor testimony alone, even without physical or forensic evidence and after years had elapsed, suggesting that a woman's word finally matters under the law.
Prosecutors prevailed despite further interaction — including consensual sex — between Weinstein and his accusers following his crimes, invalidating arguments that continued contact is evidence of consent. Weinstein's survivors rightfully took heart in the powerful and long overdue message sent by his conviction and sentence: Abusers and harassers will be held accountable for their actions, and survivors will be believed.
Justice for survivors, however, shouldn't require at least 100 women[3] to come forward and report assault, abuse and harassment, as was the case with Weinstein. Without that deluge of victim testimony, would his two accusers have been believed? That the very same prosecutors who won the jury verdict in 2020 declined even to bring charges in 2015 suggests not.
And while the #MeToo movement has changed our cultural awareness of sexual harassment and abuse, the ways in which our legal system still stacks the scales of justice against women cries out for reform.
Beyond the courtroom that convicted Weinstein, sexual assault crimes are seldom investigated, prosecuted or even tried. When charges are brought, perpetrators usually escape punishment: For every 1,000 sexual assault cases, 995 perpetrators will walk free.[4]
This abysmal statistic can be explained in part by the failures of our criminal law to reflect the experiences of survivors. Despite the widely held belief that nonconsensual sex is rape regardless of whether force was used, as of 2017, over 30 states[5] still require force to convict someone of rape.
Half of the states[6] do not define consent, and even those that do have varied definitions, from "no means no" to "yes means yes," fueling confusion about what is acceptable and what is criminal behavior.
While many states have extended their statutes of limitations for sexual assault crimes, 12 states[7] still require survivors to report their assault within 10 years or less, which is still inadequate for many who are suffering trauma to come forward. And across the country, over 200,000 rape kits[8] are sitting untested in police stations in a backlog, denying survivors the evidence they deserve.
Justice also continues to elude survivors of sexual harassment. Three years after millions around the world tweeted #MeToo, sexual harassment persists across the U.S., a problem worsened by the absence of a national workplace standard. Redress is almost impossible to achieve in the face of nondisclosure agreements[9] — the tools that Weinstein used to silence women — which remain prevalent in employment contracts and in settlement agreements, as well as forced arbitration clauses that deny survivors their right to go to court.
The federal law that does protect survivors has gaping loopholes: Independent contractors, interns and volunteers are not protected against sexual harassment under Title VII of the Civil Rights Act.[10]
The scales of justice are tipped against women in cases of sexual assault and harassment in countries around the world. In India, Nigeria and Singapore,[11] marital rape is not criminal if the wife is above a certain age or has attained puberty. In Europe, only nine countries recognize that sex without consent is rape;[12] the others still define rape to require force.
Furthermore, prosecutors around the world often must provide evidentiary corroboration[13] of rape to prevail in court. In Lebanon, for example, a medical examiner's report is required evidence, and in Malawi and Panama, medical evidence or tests are needed to prove penetration.
And sexual harassment not only persists with impunity, but in some countries, is entirely legal. According to the World Bank,[14] 59 out 189 countries surveyed had no specific legal provisions prohibiting sexual harassment in employment whatsoever.
Weinstein's 23-year prison sentence is a watershed moment, and vindication for the 100 women that he abused, but our criminal justice system needs reform so that all survivors get justice. Our criminal codes should contain an explicit definition of consent — one that is affirmative, intelligent, knowing, and voluntary, and does not include coerced submission — similar to Florida's definition.[15]
California[16] has taken a great first step by enacting legislation requiring colleges that receive state funding to have an affirmative consent standard. This standard should be expanded beyond college campuses and across the country to protect all women.
Our laws should have statutes of limitations that take into account the trauma that survivors experience as a result of sexual assault that may delay reporting — similar to New York's recently extended statute of limitations,[17] which extends the tolling period for second and third degree rape from five years to 20 and 10 years, respectively.
Finally, our legislatures should allocate more funding to address the rape kit backlog,[18] similar to Alaska,[19] which appropriated nearly $3 million in 2018 to address its rape kit backlog.
Our laws also should better protect survivors who have been sexually harassed at work, as so many employees of Weinstein were over decades. Legislators should ban NDAs for harassment and discrimination claims as a mandatory condition of employment.
Although some survivors want confidentiality to avoid the trauma of publicizing their experiences, public policies should cabin the use of NDAs in settlement agreements to avoid abuse of power. Several states — including New York, Oregon, California, Nevada and Illinois — have passed laws permitting NDAs for harassment, discrimination, or retaliation claims only if an employee requests one or is given a reasonable time period in which to consider such an agreement.
Furthermore, laws should forbid forced arbitration from being used to resolve sexual harassment cases so that survivors can go to court to enforce their rights. Anti-harassment laws should extend to all workers, not just employees, and statutes of limitations for workplace harassment claims should be lengthened to allow survivors to come forward.
The federal Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace Act[20] would make these changes on a national level and create the uniform workplace standard that we need. Until federal legislation passes, states across the country should adopt these changes so that women have the equal opportunity that they deserve.
Globally, countries should close loopholes in rape laws, banning marital rape and eliminating force requirements. Corroboration of survivors' testimony should no longer be a requirement for conviction. The word of a sexual assault survivor should be trusted under oath as much as any witness testimony would. And all countries should take the critical step of prohibiting sexual harassment in the workplace, pursuant to international standards[21].
To be sure, a high standard of due process must be maintained to protect defendants. But the fact that it took the public testimony of at least 100 women to prosecute and convict a man who was widely known as an abuser suggests that changes are desperately needed so that millions of other survivors can have a modicum of justice that the women who bravely came forward about Weinstein finally won.
Jennifer Klein is the chief strategy and policy officer for the Time's Up Foundation.
Rachel Vogelstein is the Douglas Dillon senior fellow and director of the Women and Foreign Policy program at the Council on Foreign Relations.
"Perspectives" is a regular feature written by guest authors from the access to justice field. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organizations or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.nbcnews.com/news/us-news/harvey-weinstein-sentenced-23-years-prison-landmark-metoo-case-n1154166
[2] https://www.nytimes.com/2020/02/24/nyregion/harvey-weinstein-verdict.html
[3] https://www.thecut.com/2020/01/harvey-weinstein-complete-list-allegations.html
[4] https://www.rainn.org/statistics/criminal-justice-system
[5] https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=9601&context=penn_law_review
[6] https://apnews.com/ec7bca54931544f7b71651406566206b/In-sex-assault-laws,-definition-of-consent-varies-widely
[7] https://www.rainn.org/state-state-guide-statutes-limitations
[8] https://www.theatlantic.com/newsletters/archive/2019/07/nationwide-epidemic-of-untested-rape-kits-atlantic-daily/594046/
[9] https://www.bbc.com/news/business-51438851
[10] https://www.eeoc.gov/laws/statutes/titlevii.cfm
[11] https://d3n8a8pro7vhmx.cloudfront.net/equalitynow/pages/208/attachments/original/1527096293/EqualityNowRapeLawReport2017_Single_Pages.pdf?1527096293
[12] https://www.amnesty.org/en/latest/news/2019/06/times-up-for-europes-dangerous-and-antiquated-rape-laws/
[13] https://d3n8a8pro7vhmx.cloudfront.net/equalitynow/pages/208/attachments/original/1527096293/EqualityNowRapeLawReport2017_Single_Pages.pdf?1527096293
[14] https://www.cfr.org/blog/codifying-metoo-international-law
[15] https://apps.rainn.org/policy/policy-crime-definitions-export.cfm?state=Florida&group=9
[16] https://www.npr.org/sections/thetwo-way/2014/09/29/352482932/california-enacts-yes-means-yes-law-defining-sexual-consent
[17] https://timesupnow.org/start-spreading-the-news-we-passed-the-times-up-safety-agenda-in-new-york/
[18] http://www.endthebacklog.org/ending-backlog/state-responses
[19] https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2018/07/31/metoo-has-changed-our-culture-now-its-changing-our-laws
[20] https://www.congress.gov/bill/116th-congress/house-bill/2148
[21] https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C190