No matter how many times we talk about the urgent need to address the culture of impunity as rape and sexual assault cases make headlines around the world, survivors and advocates continue to witness men, particularly those with the most social standing and influence, abusing their power to harm women worldwide.
However, innovative legal strategies are emerging, leveraging existing arguments in new ways to overcome barriers to justice, particularly in sexual violence cases where victims often have to convince law enforcement a crime was committed at all, let alone navigate all the other obstacles they frequently face in the criminal justice system.
Right now, the United States Court of Appeals of the State of New York is reviewing a case against Harvey Weinstein, where legal arguments aim to shift focus from scrutinizing survivor credibility to examining the perpetrator’s history of disregarding consent. This approach seeks to place survivors on equal footing with victims of other crimes without needing to prove their own innocence or credibility.
The case against Harvey Weinstein
Weinstein, a former Hollywood film producer, was convicted in 2020 and 2023 for the multiple rapes that he committed in 2006 and 2013.
Too often, despite one in three women being impacted by some form of violence around the world, the perpetrators’ defense in rape cases is focused on discrediting a survivor’s character, particularly if her behavior doesn’t conform to what is wrongly expected of her, leaving many acts of sexual violence to go unpunished.
Globally, we’re finding that it’s so difficult to prove rape because actors within the criminal justice system simply are not taking a proper look at all available evidence in cases of sexual violence. Survivors are too often tasked with fighting rape myths and negative stereotypes to even have it accepted at face value that a crime might have been committed at all.
Conviction rates for rape remain unacceptably low; and increasingly, women who speak out are being faced with defamation suits and other tactics aimed at silencing them.
The United States, despite publicly advocating for the protection of individual rights, is no different from many other countries in enabling an environment of impunity. Rich and influential men can still reach settlements with their accusers, including through the silencing effects of non-disclosure agreements (NDAs). In New York state though, there are promising signs of progress toward greater accountability for sexual violence crimes.
Signs of Progress in US Sexual Violence Laws
Last month, the Governor of New York signed the “Rape is Rape” bill into law, broadening the definition of rape within the state legislation, which, if it were in place at the time, could have led to a rape conviction in the high profile E. Jean Caroll v Donald Trump sexual abuse trial of 2023.
In 2022, the passage of the Adult Survivor Act, which allowed more time for adult survivors to bring a legal case against their alleged abusers, is what enabled E. Jean Carroll to appeal for justice at all.
In the most recent People v. Weinstein case, the legal arguments are so innovative that they can, if accepted, shift the landscape of sexual violence jurisprudence in the State of New York.
Neighboring state Vermont also took a progressive step at eliminating the culture of victim blaming in sexual violence cases.
Legal Arguments in the Weinstein Case
The precedent of the Weinstein case, if affirmed, could offer hope to survivors in jurisdictions where legal frameworks may be less supportive and so extend far beyond its immediate implications.
By shifting the focus from scrutinizing survivor credibility to examining the perpetrator’s history of disregarding consent, this case seeks to draw on more available evidence in support of a fair trial.
Though US federal law grants the use of evidence of the defendant’s past misconduct to demonstrate a pattern of behavior in the context of sexual violence cases, known as Molineux, in New York State, sharing a defendant’s past acts can only be accepted in trial with a much more limited objective. This case would change that to afford better justice.
For the first time, Molineux could be raised in a case of sexual violence to rebut a consent defense, offering additional options for survivors and legal advocates to challenge perpetrators within the justice system regardless of their status or influence.
As we await the Court’s decision, expected within the next few months, we remain hopeful that it will represent a step forward in the pursuit of justice for survivors. A favorable outcome would not only hold perpetrators accountable but also signal a potentially fundamental shift in the legal treatment of sexual violence cases, where the legal process can be used to defend survivors instead of breaking them down.
We urge the Court to consider the broader implications of its decision and the profound impact it will have on survivors of sexual assault everywhere. Let us strive for a future where survivors are no longer silenced or shamed but empowered to seek justice.
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