Yesterday, the jury at Harvey Weinstein’s rape trial began deliberations. A verdict could be imminent. However, regardless of the outcome, the result will not, as some have suggested, be a “referendum on #MeToo”.
At best, a verdict could deliver some form of justice for some victims and — by proxy — others. Also, one alleged predator could be held accountable and locked away, ensuring more women are not harmed by his actions.
At worst, the verdict could highlight, yet again, the bias of the criminal justice system and the challenges victims face when it is their only form of recourse. Jurors and judges are not immune to the rape myths and victim blaming so pervasive in our society, and that, partly, explains why just 1 percent of rapes lead to felony convictions in the US. Here in Australia, only around 17 of reported sexual offences result in a conviction.
The Weinstein rape trial verdict — guilty or not — will not address the legal systems and corporate structures that have long silenced victims and inhibited change and still do. It will not — and must not — be the end of the #MeToo story. We still have work to do.
In She Said, Jodi Kantor and Megan Twohey’s account of how they broke the Weinstein story and ignited a movement, the journalists recount a story that has lessons for us all. In addition to cataloguing Weinstein’s alleged wrongdoing, Rebecca Corbett, their seasoned editor, gave the journalists a “second assignment to go beyond individual wrongdoing and pin down the elements of the system that keeps sexual harassment pervasive and hard to address”.
Making good on that challenge is the focus of Kantor and Twohey’s book.
In She Said, we learn about the non-disclosure agreements (NDAs) that work more like cover-ups. We learn how lawyers who act on behalf of victims can be complicit in a system where they derive benefit from large settlements that demand silence. We learn that sexual harassment laws in the US are weak and the statute of limitations short. We learn that the federal cap on damages ($300,000) is comparatively low and disincentives lawyers from taking such cases or prompts them to steer their clients towards more lucrative (and confidential) settlements. And we learn that the national regulator, the Equal Employment Opportunity Commission, is weak with few powers of enforcement and a confidential complaints process that enables predators and their employers to remain in the shadows.
We also learn how power and money can buy you some very unlikely allies. What were you thinking Lisa Bloom?
Here in Australia, we have not yet had such a forensic assessment of the reasons that one in three workers are sexually harassed at work. But one has been promised in the form of the Australian Human Rights Commission’s National Inquiry into Sexual Harassment. Two years in the making, the results are due to be published later this month.
Ahead of that, many experts are already laying down markers. Will the onus on victims to bring about change by taking costly and emotionally difficult legal claims be transferred to employers, who would be legally required to take more active steps to prevent sexual harassment from happening in the first place? Will the introduction of so-called “positive duties” and/or making sexual harassment part of a more comprehensive work health and safety framework be floated? Will there be more transparency and, perhaps even more importantly, less imposed secrecy?
These are the challenges that lie ahead. These are the things we have yet to address and must continue to focus on long after Weinstein tastes his first bland prison meal or walks free. The verdict will be the end of a chapter — not the story.
Kristine Ziwica tweets @KZiwica