There are many shocks following on from this week’s reports of the sexual violations and rapes allegedly committed by film producer Harvey Weinstein. One shock for me is about the language used by the media to describe them. Almost all early reports referred to victimisation as “sexual harassment”.
Weinstein’s alleged acts involved quid pro quo offers, requests to be watched in the shower and for massages, naked pursuits of targets around couches. Such actions are sexual harassment.
But they are not just harassment. These are criminal acts that, if proved, would lead to jail time — not just fines and wrist-slapping. Language out of a Henry James novel made it sound as if rape was like using the wrong fork: “Mistreatment of women”, “misbehaviour”, “indiscretions”. Or “misconduct”, like a bad orchestra. Reporters used “episode” or the 70s-ish, hot tub-ish, “encounter”.
It’s likely that media lawyers advised reporters to use softer terms. But if you are reporting on a hate crime assault, you don’t inform readers accurately by calling it a “racial encounter”.
Shocking too is how district attorneys have failed to react. The New York Times and New Yorker exposés include reports of many alleged crimes in two jurisdictions: California and New York. I believe that basic information about the laws regarding sex crime and abuse are rarely explained to women, and this perpetuates a situation in which sexual assault is treated as a cultural event — “blurred lines” — when in fact criminal law is clear.
In New York state, any unwanted sexual contact is “sexual abuse”. In California, any unwanted sexual touching is “sexual assault” or “sexual battery” punishable by prison terms of six to 12 months. In both states, coercing someone into sex is sexual assault. Forcing someone to submit to oral sex, as actor and director Asia Argento alleged of Weinstein, is a felony. When someone chases a target around furniture, while he is naked, with exits from the room locked, this is arguably stalking and kidnapping.
When someone exposes himself in a public place such as a restaurant, and masturbates, as Fox reporter Lauren Sivan recounted, it is “public lewdness”, a class B misdemeanour. If “he or she intentionally exposes the private or intimate parts of his or her body in a lewd manner for the purpose of alarming or seriously annoying such person” it is a class A misdemeanour; six months, and usually placement on the registered sex offenders’ list.
Also, these events have widely been discussed as if they are history. But the statute of limitations is still open. In New York, the statute for sexual assault is five years, but there is no statute for rape. You can bring charges until you or your rapist dies. In California, a 2017 law, passed after the Bill Cosby allegations, extended the statute of limitations to — for ever. And to six years for assaults that took place prior to 2017. In the UK, there is no statute of limitations for serious sexual crimes. UK victims can bring charges forever.
Most of these women, in other words, could press charges today, even if their assaults happened years ago.
Ambra Gutierrez, an Italian model, wore a hidden recording device in 2015 to document the fact that an assault had occurred in her previous meeting with Weinstein. In an act of courage, this woman went back into danger. But DA Cyrus Vance’s office did not then pursue the case because, a statement said, it “couldn’t establish intent”. This week, it was reported that, months later, Vance was gifted $10,000 for his reelection campaign — by one of Harvey Weinstein’s lawyers.
Had Weinstein boarded a plane to Switzerland this week, as he was reportedly planning to do, that too might have constituted a crime: obstruction of justice. Resisting arrest. Flight. These are felonies or common law crimes.
But because our power brokers want to keep sexual assault in the realm of the “uncomfortable” or the “disgusting”, rather than the criminal, Weinstein was not told not to leave town. Only on Thursday was it announced that police in New York and London are taking action following the reports. Meanwhile, Weinstein headed to Arizona, to sex rehab, with yoga and equine therapy. But “rehab” is a choice, not a confrontation with the criminal justice system.
Another important legal question is what the Weinstein board knew, and when. In a statement earlier this week, the board said it was surprised by the revelations and that, “Any suggestion that the board had knowledge of this conduct is false.”
But then attorney David Boies gave a painful interview in which, in a lawyerly way, he identified the many things that the board did know. If board members knew about allegations, but continued to do business, without disclosure, this could also have violated codes for public companies.
Yet there are positives to be taken from this eruption of testimony. One is the power of what happens when women come forward, name their abusers and identify themselves. I have been saying for years that “anonymity for victims”, which is touted as a feminist perk, is in fact a toxic guarantee of rape culture. Change will only happen when women name themselves as victims in public and also name their abusers. Anonymity allows for impunity.
This is not to blame women for not coming forward sooner. The reasons Weinstein’s accusers held back are only too obvious. But seeing Gutierrez put herself in danger to report a crime; seeing Argento put online the disturbing scene she filmed for her movie, which is based on her alleged assault, is transformational.
Patriarchy has managed to direct attention always at the victim. What was she wearing? Is she crazy? Is she in love with him? What is her motivation? Why doesn’t she just drop it? Is she a “good” or “bad” girl? This protects not only rapists but also institutions – universities, workplaces – in a patriarchy that runs on impunity for rapist and abusers, and for their boards, their deans, their trustees, their gatekeepers.
But when women come forward with their own names and stories — something that social media allows in an especially effective way — attention can turn to where it should be. We see how common it is for perpetrators to have a modus operandi; how frequently they groom a victim, make sure to get her alone, intimidate and coerce her. We see how a perpetrator creates a situation that a young woman may think she can manage or at least survive, and then suddenly, terrifyingly, he lunges, overpowers, demeans, violates her. Such assaults can result in the death of a young woman’s sense of self, vocation, possibility, future life and dreams.
An essay this week in the New Yorker by Jia Tolentino speaks about the familiar “sadness” that almost every woman can relate to, of how a moment in which a young woman thought her talents were being recognised, turns into trauma. And also into a terrible non-choice: speak and be “that girl” — hounded out of one’s chosen profession, or else keep a silence about someone else’s revolting secret, that weighs on one’s mouth and heart endlessly, like stone.
Now, as voices are being raised, the fact that perpetrators stalk and silence, buy off lawyers, intimidate and threaten victims — often for decades — becomes established. If you are alone and describe this, you are a conspiracy theorist. En masse, though, we start to see a system at work.
There is one answer to this. Move this discussion out of the realm of emotion and outrage and novels of manners, and into the arena of crime. Do it in public. File police reports. Record the calls. After consulting a lawyer in your country, consider naming your assailant online. You may not get a conviction, but you make impunity harder. The next victim will have a paper trail to support her.
Ask the online community to keep pressure on police departments to investigate and be accountable for complaints against alleged rapists and sexual abusers. The rate for false accusations is the same for sex crime as for any other crime — arson, fraud.
I actually believe in a “Name your assailant day”, in which women go to police together, to support one another in filing reports. It doesn’t matter if you are outside the statute of limitations. You may not be able to prosecute your own abuser. But the report will be on the record.
Last year I filed a police report about my own long-ago assault, after receiving a threat (not from my assailant), having previously filed a formal grievance at the university where the assault took place. I filed the report at the New Haven Police Department. It was “lost”. I filed it again in April. There is now an open investigation. I am not saying this process is easy. But it is critical.
The women who have spoken out are so brave. If they can possibly bear to, even just one or two need to call the California and NY district attorneys. It requires a victim to file. They need us to support them, comfort them, listen to them, raise money for their counsel.
Meanwhile Weinstein, in his rehab centre in Arizona, is counting on people’s energies dying down as some new drama takes the place of this rend in the fabric of patriarchy.
But whether he is prosecuted or not is not the only turning point. The turning point will be when every girl and boy, woman or man, who is assaulted, abused, forcibly touched — knows the law and know in his or her bones that these actions are crimes. When victims refuse shame and refuse to bear the burden of the perverse and unbelievable things perpetrators have done to them. When victims demand that the criminal justice system hears their complaints and acts on them.
When perpetrators planning to get that next young, hopeful woman alone to hurt her, finally think twice about their demonic “business as usual” — because they know that she has an invisible army, standing with the force of law behind her.
• Naomi Wolf is an author and CEO of DailyClout, a platform to make laws socially shareable