Harvey Weinstein remains a convicted rapist. On Thursday, the New York Court of Appeals upheld the film mogul’s procedural complaint against his 2020 convictions in that state, ordering a retrial on two charges of sex crimes.
But they had no jurisdiction over Weinstein’s conviction for rape in California. Weinstein is still serving a sentence of 16 years, on one count of rape and two counts of sexual assault. A Los Angeles court found that he had raped an aspiring actress during the week preceding the Oscars, where Weinstein’s power was such that film-makers were once calculated to have thanked him more frequently than God for securing their wins.
This conviction matters, because it’s what allows me still to call Harvey Weinstein a rapist. Rape convictions are designed to punish offenders. But in most jurisdictions, they are also the legal guarantee that allows victims to speak openly about their experiences, without fear of retribution through defamation lawyers. Once the courts have categorised someone as a rapist in the eyes of the law, the rest of us can call him a rapist, too.
At its heart, this week’s decision is all about speech, and who gets to use it. It took place in a criminal court, but across the world, the battleground of #MeToo – a global movement inspired by the women who exposed Weinstein – has long shifted from criminal to defamation law. If Weinstein succeeds at his retrial, or in his appeal in California, he is likely to launch defamation proceedings too.
When women warn each other about predatory men, we refer to patterns of behaviour. (And yes, when it comes to sexual violence, usually, but not always, it is women doing the warning and men doing the violence.) That means several women telling their stories to each other. This is women’s lived experience of adjudicating which of the men around us is likely to be dangerous.
The law doesn’t work in the same way, for good reason. Criminal courts don’t exist to assess whether you’re a bad person; they exist to assess whether you’ve committed a specific crime. Defamation courts may even frame this kind of information sharing as gossip, and irresponsible. But for a crime such as rape, which is rarely committed in the presence of impartial witnesses, a pattern of behaviour is often the best evidence we have.
The error in the original 2020 case against Weinstein, according to the appeal, was that the judge allowed other women whom Weinstein had allegedly attacked to testify about unrelated experiences. This “could only diminish defendant’s character before the jury”, they ruled. Lawyers prosecuting Weinstein argued that these testimonies served to demonstrate specific patterns of behaviour which corroborated details of the charges; a form of legal testimony sometimes permitted in US law after a “Molineux hearing” to determine its relevance. But the Court of Appeals disagreed.
To many campaigners against sexual violence, this decision is devastating. One complainant, Louisette Geiss, called it “soul crushing”. Yet it was not unexpected; nor does it guarantee an acquittal when the case is re-tried.
The underlying struggle, it seems, is a fight for women’s freedom of speech. From its beginnings in the Weinstein story, #MeToo has always been a freedom of expression movement. In the years before the New York Time’s breakthrough report, Weinstein silenced his victims with libel lawyers, blackmail plots and workplace NDAs. Now, his lawyers have established a precedent for restricting women’s voices in the criminal courts.
American feminists talk of reforming the underlying legislation, but any return of Donald Trump to the White House will put a brake on that. Just down the road from Weinstein, Trump also stands accused of using money and power to silence women.
It was through the defamation courts, however, that Trump has come closest to being held to account for his own sexual misconduct. When the writer E. Jean Carroll accused him of rape, he sued for defamation: he lost.
Women are winning cases in Britain too. In a key judgement last April known as Hay v Cresswell, a man lost his case for defamation after a judge ruled it was in the public interest for a blogger to name him as the man who raped her, and that the claim was “substantially true”.
In Australia, just last week, political advisor Bruce Lehrmann lost his attempt to sue the broadcaster Network Ten after a judge ruled that he had raped a colleague, as they had reported. (He denies all allegations against him.) The Lehrmann case was a landmark because Australian defamation courts have previously punished reporters who have published high-profile #MeToo allegations. As in British civil law cases, it did not require rape to be proved “beyond reasonable doubt”, but only on the balance of probabilities – a lower standard of proof, because no one’s liberty is at stake.
Men accused of rape may disagree that their reputation deserves less protection than their freedom. But at its core, the #MeToo movement is a fight for the freedom for women to speak about male sexual violence and publicly to tell the stories of the men who have attacked us. Its leaders have spent much time assessing how to prosecute rape. They should instead prioritise strategic intervention in defamation cases. If we cannot tell our stories, we will never hold the world’s Weinsteins to account.