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The Still Incomplete Case Against Harvey Weinstein

A verdict has been rendered, but no criminal case will tell the full story about Weinstein or the women he’s harmed.

Spencer Platt/Getty Images

While more than 90 women have accused Harvey Weinstein of sexual misconduct, the Manhattan trial that concluded on Monday concerned his conduct with three women: Miriam Haley, Jessica Mann, and Annabella Sciorra. Even as media narratives of the trial painted it as answering a simple, stark question about the producer’s guilt or innocence, the actual task handed to the jury resembled an algebra problem more than a call for judgment.

Weinstein faced five charges in total—first-degree criminal sexual act, first-degree rape, third-degree rape, and two separate counts of predatory sexual assault. But as CNN noted in its analysis, “Several of those charges are either/or counts, or what’s known as ‘alternative’ charges.” Because of this, Weinstein could “only be convicted of, at most, two charges—one based on Mann’s allegations and one based on Haley’s.”

After hearing the three women’s testimony, the jury was asked to rule on the charges against Weinstein involving Haley (a criminal sex act in the first degree) and Mann (rape in the first and third degrees). If it found Weinstein guilty of either first-degree charge in their cases, and it found him guilty of either a first-degree criminal sex act or a rape in the first-degree charge against Weinstein involving Sciorra, then the charges against Weinstein would be upped to predatory sexual assault, which could mean a life sentence. In the end, the jury decided that Weinstein was guilty of a first-degree criminal sex act, of Haley, and third-degree rape, of Mann. He was acquitted of predatory sexual assault, the “more serious charges,” as The New York Times described them.

A criminal case like this, in the end, is not about what Weinstein did but what the state says he did. And as in any rape case, prosecutors assembled it from the charges they believed they could prove and which women they thought would be most “believable.”

If anything like justice was done in Room 1530 of New York State Supreme Court, it was constrained by those same terms. And this is why it was so jarring to hear Cy Vance, the Manhattan district attorney who had previously declined to prosecute Weinstein, celebrate the verdict as “the new landscape for survivors of sexual assault in America.” What is he promising survivors, then? While Vance may see shifting ground, it’s reasonable for survivors of sexual violence to take a more skeptical view of a case that remains so incomplete.

There is a distinction to hold onto here, in the aftermath of the Weinstein trial: Weinstein’s conduct, and the case made by the office of the Manhattan district attorney concerning Weinstein’s conduct. The case made, and its verdict, has already rewritten Weinstein’s public face. Journalists can now use the word “rape” without the preceding “alleged” when describing the conduct of the former Hollywood producer. That is, Harvey Weinstein was convicted of rape in the third degree by a Manhattan jury Monday.

Still, with the prosecution failing to get a conviction on the more serious charges, does that also mean it’s true that the case against Weinstein was flawed? The split verdict wasn’t a total surprise, after all. The jury had indicated as much with its questions to the judge, and the same questions plagued much of the trial. JoAnn Wypijewski at The Nation saw the warning signs of an acquittal before Monday’s verdict, in the conversations relegated to the hallways outside the courtroom. Most media accounts of the trial “parroted the prosecution’s narrative,” she wrote. In contrast, a woman she spoke with after watching testimony feared it was a “very weak” case. And should the trial result in an acquittal or hung jury, one feminist activist at the court told Wypijewski, “I don’t think anyone is prepared for this.”

After Mann’s testimony, a former friend was called as a witness for the defense. “Testifying under subpoena,” Wypijewski wrote, “she contradicted Mann in large and small ways and was one of the trial’s most credible witnesses. Other than friends of the prosecutor or members of the DA’s office, no one I talked with felt confident they could tell when Mann was telling the truth and when she wasn’t.”

But Mann herself was limited in her testimony. Prosecutors had a particular narrative to advance, one that could only be partial. “Watching Mann under direct examination, unprepared, twisting, aching to tell a story that could not be told,” Wypijewski wrote, “I felt the prosecution had perpetrated an act of cruelty against her.”

Weinstein has been found guilty of raping Mann. So it follows that the criminal legal system has also found that she was telling the truth—even when it’s a complicated truth, even when in the past such cases may have been rejected by prosecutors for that same reason.

Five years before he welcomed this allegedly “new landscape,” Manhattan District Attorney Vance declined to prosecute Weinstein. This was after Ambra Battilana, at the direction of New York City police detectives, secretly recorded Weinstein apologizing for groping her breasts. When challenged years later on this, in the wake of the Times’ and The New Yorker’s reporting on Weinstein’s apparent predatory behavior targeting women in his industry, Vance said there wasn’t enough evidence when Battilana went to the police in 2015. In what “landscape,” then, does Vance believe Battilana came forward? Should she have waited for this “new” one?

For some women, for Weinstein to be convicted of rape could feel like justice. That is likely not because prison can deliver justice, but because we are all reared in a culture that equates punishment with accountability, and we have entrusted public officials to carry out that punishment for us. But it is those public officials, like Vance, bearing promises of “a new day” in the wake of this verdict, who must also be accountable.

One of the few ways the public can make that happen is through its vote—and Vance knows this. In 2021, he will face the toughest reelection battle of his career. One of his challengers, Janos Marton, points to Vance’s record on sex-crime prosecutions as proof he must resign from office. And survivors have mobilized against Vance, demanding he step down.

“People don’t think about the incredible discretionary power DAs have,” Marissa Hoechstetter, founder of Reform the Sex Crimes Unit, told Politico last October. “We think about what gets charged, but maybe more importantly they have this power to not charge.”

A rape case is made in court. It is also made in the court of public opinion. But most critically, it is made in the mind of the prosecutor. That office determines what it says rape is, before a single witness is called. Weinstein is without a doubt a man who has abused his power. With Monday’s verdict, partial as it is, his legacy has shifted: the powerful Hollywood producer, now a convicted rapist. Vance, it seems, would also like to see his own legacy changed through this trial. If this verdict officially renders Weinstein a predator toward women, it can also be used to recast Vance as women’s protector and defender.

With this trial closed, another case is still pending in Los Angeles. That case, no matter the outcome, also will not tell a complete story about Weinstein or the women who say he harmed them. Men like Vance may see a new landscape, but the terrain remains familiar to women who have already risked so much to come forward.