Harvey Weinstein was just convicted of two criminal acts: criminal sexual assault in the first degree and rape in the third degree. According to media reports, he repeated “But, I’m innocent” three times as the verdict was read. His lawyer watched him as he was led away in handcuffs; she told reporters it was “absolutely horrible” to watch her client be escorted to jail, but that “he took it like a man.”
The reactions of lawyer and client alike reflect their complete lack of understanding about what he did, what was wrong with it, and how those sexist attitudes have brought us to the very place we find ourselves now.
I wrote in an earlier column that the verdict in Harvey Weinstein’s trial, whether a conviction or an acquittal or a hung jury, would not be a referendum on the #MeToo movement. Even if Weinstein had been acquitted on all counts, the revelation of his behavior in October 2017 would still be credited with having sparked this iteration of the #MeToo movement. We would still benefit from the awareness we gained about the nature, severity, and prevalence of sexual misconduct in the modern American workplace. We would still benefit from having hundreds of powerful men stripped of power to commit more sexual abuse. We would still be having the important conversations about sex, gender, and power that #MeToo has encouraged us to have.
But Weinstein’s conviction is not irrelevant. It suggests a willingness to accept that sexual misconduct is intricately bound up with power, and that our familiar (often false) narratives about how rape victims act can be set aside by a factfinder willing to really examine the facts of an individual case. And it suggests that there is power in a grassroots movement that has allowed women to stand up and claim their right to safety and bodily autonomy.
But there are also lessons about the limits of antidiscrimination law as the primary tool used to fight sexual harassment. Over the course of twenty years, I have written on this website about every last detail of sexual harassment law (or so it seems). The theme that comes through most strongly is that antidiscrimination law is often a poor match for the realities of sexual harassment.
Courts have recognized that sexual harassment is a form of actionable sex discrimination since the 1980s. The first cases were brought under Title VII, the main federal antidiscrimination law that applies to employers with at least fifteen employees. The Supreme Court began building out sexual harassment law from a Title VII case in 1986, Meritor Savings Bank v. Vinson. By the time cases were litigated under Title IX (which bans sex discrimination by educational institutions that receive federal funding), the Equal Protection Clause (which applies to any governmental entity including public employers), and a wide variety of state antidiscrimination laws, sexual harassment doctrine under Title VII was more or less fully developed. It became the template for the law of sexual harassment more generally, regardless of the particular governing law. Because Title VII applies so broadly, most employers and other organizations have responded to sexual harassment in the shadow of the law’s requirements.
There is no question that Title VII has contributed to women’s workplace equality in countless positive ways. And there’s no question that it has protected some employees from sexual harassment—and enabled others to obtain redress for the harm of experiencing it. But sexual harassment law as a whole has not been the panacea some might have hoped. Nearly four decades later, surveys suggest that working women are just as likely to experience sexual harassment today as before the law recognized it as unlawful. Harassment is often severe in nature and harmful in result. Sexual harassment law gets a bad rap for allegedly punishing bad jokes, but the reality is to the contrary. It is much more common for severe conduct to go unpunished than for harmless behavior to be reined in.
We live in a world in which sexual harassment is very definitely against the law and also very common. In my view, much of the fault for this strange juxtaposition is sexual harassment doctrine and its unjustified emphasis on internal dispute resolute processes. Through a series of cases, the Supreme Court made clear that the primary responsibility for dealing with harassment falls on employers, and that they have to take certain preventive and corrective measures in order to insulate themselves from liability.
Courts were quick to coalesce around the importance of policies and procedures and lost sight of the law’s purpose of promoting employment equality through the elimination of sexually harassing behaviors. As a result, sexual harassment law revolves around a system of incentives and disincentives that rewards organizations for taking measures to prevent harassment regardless of whether they are effective—or even designed to be effective. It often insulates employers from liability even when they had the power to deal effectively with the problem and failed. It absolves individuals of liability for their own misconduct, focusing only on the liability of employers for putting them in positions of power and failing to address their behavior. It imposes obstacles that make it difficult if not impossible for targets of harassment to enforce their substantive rights.
It is this system that had no effect on Harvey Weinstein during the three decades when he committed sexual assault against women, harassed them in others ways, threatened them, coerced them into sexual submission, and intimidated them so they wouldn’t complain—and retaliated against them when they did. It is this system that let Weinstein buy the silence of at least eight women with millions of dollars in settlements that included non-disclosure provisions that prevented them from telling anyone what happened and thus drastically increased the likelihood that other women would be harmed. It is this system that let Weinstein use his power to manipulate and abuse actresses whose careers depended on making him happy. It is this system that let Weinstein buy his way out of liability even after his downfall, settling most of the civil claims against him for $25 million a few months ago. It is this system that said if you are rich and powerful, the rules do not apply to you.
This system also permitted Roger Ailes and Bill O’Reilly to stay in highly paid positions of power despite preying on the women who worked for them—and paying millions to keep them quiet. It permitted countless other powerful men to abuse countless women—many of whom were “protected” by the robust law against sexual harassment. This system permits employers and others to weave an impenetrable web of arbitration clauses, non-disclosure agreements, and falsely positive references to ensure that sexual predators remain employed and empowered.
The criminal law stepped in to clean up the mess that antidiscrimination law let Harvey Weinstein create. In his case, his conduct did not just constitute actionable discrimination, it was criminal. And the system that will finally force him to suffer a serious consequence for his misconduct is the criminal law system. In criminal court, we focus on the actual behavior and its victims rather than the employer’s pretty binder of policies and procedures that few have ever read. In criminal court, we do not let the perpetrator trade money for silence or use power to intimidate the decisionmakers. It is this system that resulted in Weinstein’s being led away in handcuffs to await his sentence, and this system that led him to finally face a consequence that undoubtedly feels very real to him.
Criminal law will not save us from sexual misconduct. Most cases do not involve criminal liability, and sexual misconduct cases remain among the hardest to prove. But the role it played in Weinstein’s case is an important reminder to focus more on the law that might save us—and to figure out how to fix it.