Even just five years ago, it would have sounded impossible. Last week, one of the most powerful and, until now, untouchable producers in Hollywood, Harvey Weinstein, was found guilty of felony sex crimes. He faces spending five to 29 years in prison.
It’s a remarkable moment, a victory for the Me Too movement and a case that could change the way juries and the public view sexual harassment and assault well into the future. But it also exposes the limits of the legal system in addressing what is still a widespread crisis in the workplace. Even after so many women have come forward, even after a mass movement that forced the country and the world to reckon with sexual harassment, even in a case against a man now widely understood to be a sexual predator, it’s a narrow victory. It will take far more than adjudication through the courts to snuff out sexual predation at work.
Perhaps the most lasting impact this particular trial could have is allowing us to believe more complicated stories of harassment and assault. Jessica Mann and Mimi Haleyi, the two women whose allegations the state was prosecuting, did not present easy or straightforward cases. Both women maintained contact with Weinstein after they say he assaulted them, even sending him friendly e-mails, and both had consensual sex with him after their assaults. One had a years-long relationship with him.
And yet the jury, strikingly, was able to understand that such behavior doesn’t negate the experience of sexual assault. Victims often don’t act the way we would expect them to. Out of fear of personal and/or financial repercussions, many find ways to protect themselves in ways that can be counterintuitive to those who haven’t experienced it themselves. That can include maintaining a good working relationship with an assailant or even engaging in consensual sex to deal with the trauma of unwanted contact.
It’s a common situation for women of all economic situations, not just Hollywood actresses. People seeking roles on movie sets aren’t the only ones who need to maintain contact with their powerful abusers. A worker harassed by a supervisor may still need that person to give her a promotion or a reference for another job. She still needs to keep earning a paycheck.
Most victims also don’t report harassment the first time it happens, or ever. (Many of Weinstein’s accusers describe treatment that they said took place so long ago it couldn’t be included in a criminal trial.) They may fear they’ll face retaliation—rightly, given that one of the most common employer reactions to a complaint is to take it out on the accuser—or can’t afford the upfront costs of seeking legal representation. Plenty of women also can’t afford to quit their jobs to get away from harassment and just have to find ways to live with it. “We hear about people trying to change their behavior in the workplace in order to make this stop. People dress differently, they might take a different route when walking through their workplace, they try to laugh it off and be one of the boys in order to make this stop,” said Sharyn Tejani, director of the Time’s Up Legal Defense Fund. “Understanding that will help people who are coming forward in these types of situations.” Juries may now be more sympathetic to the steps victims have to take to navigate those conditions.
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Weinstein’s verdict, then, could be an indication that the justice system is ready to accept these more nuanced, but no less true, stories of abuse. That could pry open the door for more cases to be brought where the victims aren’t perfect and their actions look messy, and for those people to see some justice.
A high-profile case like Weinstein’s also tends to embolden people to speak up. Advocates for survivors of sexual harassment say that there is always an uptick in people coming forward when this type of issue is in the press, and Weinstein’s case is likely no different. “I am hopeful, because what people saw was a very powerful white man being held accountable, and if that can happen there, hopefully people will see that it can happen in other places,” Tejani said. “Hopefully that will be something people can point to and say, ‘If it can happen to somebody as powerful as him then perhaps it can happen in my workplace as well.’”
But for low-wage women just trying to earn a living, the conviction may not even register or seem like it has a bearing on their lives. “I actually doubt if most of the folks we work with know who Harvey Weinstein is,” said Gillian Thomas, senior staff attorney at the ACLU Women’s Rights Project. There can certainly be positive ramifications of the verdict for some. But “in terms of whether those will actually trickle down to the workplaces where our clients [work], someone working as a cashier or a line cook at McDonald’s, I tend to be more pessimistic.”
And even if the positive ramifications come to pass, it’s hard to see the verdict as a clear victory for the hordes of women who experience sexual harassment and assault at work every day. It took so much to get this one man. Weinstein’s abuse was more or less an open secret in the movie industry for decades. Manhattan District Attorney Cy Vance even had a taped recording of Weinstein confessing to groping Italian model Ambra Battilana in 2015, but decided not to pursue the case.
What changed? First, world-class journalists at The New York Times and The New Yorker published investigations into his abuse that included high-profile women like Ashley Judd and Mira Sorvino revealing what happened to them on the record. That kind of work takes immense time and resources. Then, inspired to speak out in the wake of those stories, at least 100 women summoned the courage to come forward alleging they, too, were harassed or assaulted by Weinstein. All of these revelations were buttressed by something much bigger: the #MeToo hashtag, where women shared personal story after personal story of experiencing sexual harassment and assault. A floodgate was opened, a cultural reckoning was instigated, and a mass movement of sorts was launched.
Weinstein was the catalyst for that moment and ended up the archetype of a “bad man” who deserved to be punished. And yet his punishment is still limited compared to the scope of the harm he caused. At the end of last year, more than 30 of his accusers settled their suits against him for a total of just $25 million—a quarter of which will go to Weinstein’s, his brother’s, and his company’s board’s legal costs—in a tentative deal that wouldn’t require Weinstein to admit wrongdoing nor even pay his victims himself. “If this is the best we could do with Harvey,” Thomas wondered, “the average survivor… what can they hope for?”
The outlook for getting justice in the legal system is bleak. Most harassment cases brought through the Equal Employment Opportunity Commission, for example, end in favor of the employer, not the employee who was harassed. The typical harassment settlement, if a case gets that far, is usually around just $30,000. Low-wage workers can typically expect even smaller sums of money if they manage to get to the point of a settlement. The payouts are usually based on the loss of someone’s wages, which are obviously lower in the type of service-sector jobs where harassment is most rampant. They can also be based on emotional harm, but that requires going to a medical expert to be diagnosed—something low-wage workers may not be able to afford—and even having an expert testify in the case, which also costs money these workers may not have.
A tiny sliver of cases make it to a jury trial like this one, where the public gets a chance to find out what each side says happened. And even in this extraordinary case, the jury that convicted Weinstein in New York court in February found him guilty on two charges, but cleared him of the two more serious charges. (There is still a criminal sexual assault case based on two women’s accusations pending in California.)
Weinstein was the most high-profile Me Too villain and was already immensely famous before the accusations piled up. Does what happened to him translate to an unknown Walmart manager? Will someone harassed by her middle management boss be able to secure justice without such a bright public spotlight on her mistreatment?
It will take a lot more than individual court cases to exterminate the invasive threat of sexual harassment. “Litigation is an exceptionally blunt instrument and an exceptionally slow-moving one,” Thomas noted. Real change requires an ongoing mass movement, one that results in widespread, systemic legislative and cultural change.
It’s an undeniably significant outcome to see a man as powerful as Harvey Weinstein face time in prison for what he did. But the verdict’s reach can only extend so far. The legal system is not going to save us. Only ongoing demand for change, until that change is secured, can do that.
