Weinstein’s Conviction Gives Rape Survivors a Fairer Shot at Justice

(Bloomberg Opinion) -- Harvey Weinstein, convicted of rape, appears to be headed to prison for at least five years. Bill Cosby, convicted two years ago of aggravated indecent assault, is currently serving a three-to-10-year sentence. It’s far too early to proclaim that rape cases are suddenly easier to win than in the past, but celebrity status is plainly not the shield it once was — a welcome change.

Here’s something that has not had much mention in the excitement and relief Weinstein’s conviction has generated: A generation of serious academic scholarship might soon be out of date. In particular, many of the markers that have made cases against the powerful and famous difficult to win — markers painstakingly unearthed by researchers over the years — look as though they might not matter quite as much in the future.

Let’s begin at the beginning. In her catalogue of the reasons prosecutors are often reluctant to bring sexual assault cases, the sociologist Patricia Yancey Martin includes the widespread belief that “rape cases are hard to win.” Because prosecutors think this way, she points out, police officers get the message and adopt the same pessimism. Their doubts trickle down to rape victims, who often find themselves without a champion in law enforcement and therefore choose not to go forward. 

It’s a truism that rape cases against the rich and famous are viewed as even harder to win. And this isn’t mere anecdote; it’s supported by the academic research. The scholarship is depressing. We know, for example, that denials by men who are regarded as successful, including celebrities, are more likely than others to be believed by the public. This has proved to be particularly true when the celebrity in question is white. (For black celebrities, the opposite may be true.) The results are similar when we ask about judgments not by the general public, but by juries. The research tells us that jurors — including in sexual assault cases — respond more favorably to defendants who are perceived as being of high economic status.

The Weinstein verdict, added to Cosby’s conviction and the planned prosecution of Jeffrey Epstein that was derailed by his death in prison, suggest that the well-established findings of this line of research might be changing; which would be a good thing for victims.

And there’s other research that the prosecutorial successes of the #MeToo movement might upend. For instance, a 2008 study found that when young men viewed actual newspaper headlines about a sexual assault case, they were less likely to believe the accused was guilty when the headlines themselves referenced what are known as rape myths. The term “rape myths” encompasses a variety of stereotypes that often find widespread acceptance among men and women alike. (“What did she think was going to happen when she went upstairs with him?” “You have to understand that men just lose control sometimes.”) When skillfully exploited by the defense, these prejudices may cause accusers’ stories to be dismissed. Their prevalence presents a continuing challenge even to prosecutors who are determined to take cases to trial.

Even if is difficult to keep such myths out of the headlines — such as in the case of a newspaper that reports “Accuser ‘must have known’ what she was getting into, defense says” — one hopes that more convictions of the famous will help casual readers put such headlines in perspective. Times are changing — another fact that matters to the research. For instance, there exist multiple studies purporting to show that many women don’t actually mean “no” when they say it.  But as my Yale Law School colleague Dan Kahan pointed out a decade ago, most of those studies are old. 

The same is true here. The research on how juries and the public tend to respond to celebrity defendants can reasonably be treated as “old.” In particular, the studies do not reflect what the Weinstein verdict clearly does: a sea change in how our society is coming to think about sexual assault.

None of this is to say that rape cases should henceforth be declared easy to win. Nobody thinks that. Significant challenges remain.  Even if celebrities as a class are no longer immune, any prosecutor will tell you that the single biggest difficulty remains not the skeptical jury but the accuser who decides not to cooperate. Students in my evidence courses find it disheartening when I point out the difficulty of prosecuting an alleged sexual assault when the complainant drops the charges. Yes, there are situations in which a prosecutor might try to proceed anyway. As a practical matter, however, without the accuser’s testimony it’s all but impossible to get a conviction.

This has been a particular problem when the accused is a person of influence. The accuser might decide to give up, especially when “he always gets away with it.” Seeing such predators as Weinstein and Cosby behind bars might encourage some additional victims to persevere, because they’ll realize that their attackers do not in fact enjoy a magical immunity because they’re famous; perhaps the victims’ stories will be believed after all.

But other accusers will still decide not to cooperate, a change of mind that can occur for many reasons, not all of them nefarious. (A common explanation that shows up in the research is a reluctance to let friends or loved ones know about the assault.) Many times, victims are put off by the attitude of law enforcement officials — even, Yancey tells us, when the police have been carefully trained in how to respond to accusers in sexual assault cases.

And of course there will always be cases where the prosecution falls apart because accuser and accused reach a financial settlement. I believe in people’s freedom to make what deals they like when there is no deceit or coercion, although we should be wary of such arrangements in sexual assault cases, where the possibility of intimidation always looms. At the same time, let’s be clear that agreements of this kind are hardly the exclusive province of rich defendants. They’re not even uncommon. A well-known study from the 1980s found that around half of dropped rape prosecutions in Detroit came about because of a payment from accused to the accuser. One doubts that the figures are substantially different today.

Still, it cannot be repeated often enough that the Weinstein conviction represents a tremendous blow to the immunity so long enjoyed by celebrities who rape. And if that means we’ll soon be needing some new academic research, we can all be thankful.

In the particular case of domestic violence, a substantial literature urges the adoption of what is called a “no-drop” policy, meaning that when the accuser refuses to testify, the prosecutors will seek other evidence and do their best to proceed with the case.

To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net

This column does not necessarily reflect the opinion of Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”

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