What If Weinstein Walks?

At his May 2018 arraignment in Manhattan Criminal Court, Harvey Weinstein wore a blue sweater over an untucked button-down shirt and a dark blazer—a costume no doubt chosen to soften his appearance. For his handcuffed perp walk, hundreds of cameras pointed at him, but the lack of a red carpet to mark the occasion must have felt foreign and familiar all at once.

In the photos, the then 66-year-old Weinstein doesn’t look rattled. In the photos, I still see a privileged man of stature—an unrepentant narcissist, a man used to getting what he wants, a man so potent he refuses to understand the meaning of the word no.

At the hearing, Weinstein handed over his passport and a cashier’s check for his $1,000,000 bail. Then he slipped out the back of the courtroom through an employee door into a waiting car. His attorney Benjamin Brafman then gave reporters a preview of his defense strategy: distinguishing between “bad behavior” and criminal conduct.

“Mr. Weinstein did not invent the casting couch in Hollywood,” Brafman insisted. News reports stated that whether or not charges against Weinstein would stick hinged on the victims’ credibility; on this point, Brafman promised “vigorous cross-examination.”

Weinstein now appears likely to walk free on all criminal charges against him—charges stemming from the rape of one victim were already dismissed, and the five remaining felony sex crime charges are crumbling. The case is tainted by admitted police misconduct and failures to disclose key evidence, including dozens of emails from Weinstein’s victims. Dissatisfied with Brafman’s failure to win dismissal of all charges, Weinstein fired him and assembled an even more formidable team of expensive lawyers. This new team will also undoubtedly deliver “vigorous cross-examination” of Weinstein’s victims.

Reading this news, I feel repulsion—a queasy, sick feeling in my gut. The stakes of watching this predator go free seems personal. I know how it feels to watch a prosecutor bungle a case. I know how it feels to be interrogated on cross-examination. I know how it feels to not be believed.

I know how it feels to watch an attacker exit the courtroom a free man.

It’s summer, almost midnight, when I leave my campus job. I am a 19-year-old sophomore. I sling my backpack over my shoulder and walk home alone in darkness. I am almost to the door of my apartment when a man assaults me at knifepoint. We struggle and I manage to scream—a primal sound flying into the night. My assailant runs. 

Police stop my attacker a few blocks from my apartment and I identify him. His pocket holds a knife identical to the one I described. He is arrested, charged with attempted rape and assault with a deadly weapon. The next day, he is arraigned and released on bond. In the days, weeks and months that follow, I stumble along as a dissonance swells, as my ears fill with the sound of my own screams. I realize safety is an illusion.

The 19-year-old girl child was consumed outside that apartment. She’s been spit back out in a different form. Strength stripped, she feels bewildered. She asks herself daily: What does the world mean when you no longer trust it? She can’t find an answer.

More than 80 women have accused Harvey Weinstein of sexual harassment or assault. Civil lawsuits are pending, with some recently settling, and more than two dozen criminal investigations from London to Los Angeles have examined complaints stretching over 30 years. The storm of allegations against him triggered the #MeToo movement’s viral explosion around the globe.

But the Manhattan District Attorney’s office has been the only one to move forward with criminal charges. 

Seeing Weinstein in cuffs was a golden moment for many women. Learning his charges carried a potential penalty of life in prison upended our expectations, legitimized us, left some of us downright giddy. It looked like we might get the upper hand for once, like justice might be done. It was a historic moment, an unprecedented acknowledgment of the pervasiveness of sexual violence.

We saw a woman could be believed, that there could be consequences for predators—even one of Weinstein’s stature. “We got you, Harvey Weinstein,” Rose McGowan tweeted, “we got you.”

I meet with the Deputy DA on the morning of my assailant’s trial, more than a year after my assault. She spends a handful of minutes with me, asking questions and brushing over mine. I am tense and restless, but part of me is ready. Part of me can’t wait to tell the jury what this man did to me, to let them know what he took away. 

Hours later, I’m finally called to testify. The jury is blank-faced as I swear to tell the truth, the whole truth, so help me God. I detail my own assault but feel something missing. This telling feels too sanitized. None of the stark terror, none of what my body and mind suffered is conveyed. There’s no talk of intent, no speculation concerning why this man committed acts satisfying elements of Penal Code sections, no concern these acts were prelude to a more shattering violence.

I identify my attacker and the DA announces she has no further questions. It seems anemic, too skeletal, a thin sketch with no color filled in. But wait, I want to say, so much more needs to be told. Then it’s time for cross-examination by my attacker’s lawyer.

His air is that of battle. Immediately, I feel myself unraveling. This lawyer elicits through my own voice that I saw my attacker only a few minutes, that I was terrified—teeing up his argument that fear blinds. Unapologetically aggressive questions tailored to discredit me, to manipulate my words, to limit how I can tell the jury what happened become their own form of assault.

These questions come too fast, making my face hot. How old are you? What were you doing that night? Studying? Then working six hours at your campus job? So you must have been tired, right? Why’d you walk home alone? What were you wearing?

I realize it’s me who is on trial. I want to tell the story of what he took from me that night. But that is not what this is about. No one here cares about that. The next day, the prosecutor calls with the jury’s verdict: Not Guilty. My assailant is a free man.  

The verdict jolts me back to the night outside my apartment where the man with wild blue eyes ran up and showed me the knife in his hand. The verdict tells me what I heard in a merciless cross-examination: You have no proof. You’re not credible. Your words mean nothing. This was your own fault. 

The world turns tattered, frayed, worn, ugly. My place in it seems tentative. I try to go about the business of life as a student. Work my shifts. Pay my rent. Finger the calendar holding so many exam dates.

On April 26, the court held another pretrial conference concerning whether evidence of uncharged crimes and prior bad acts by Weinstein would be allowed at trial. Weinstein’s June 3 trial date was continued, again, to September 9. His defense team seized on this hearing to emphasize the strength of their case, saying the prosecution’s desire to introduce evidence of uncharged crimes is “a sign of a good strong case for the defense.” They explained that “the reason is that the prosecution can’t prove their case in chief, so they want to go outside of those witnesses to try and tack on and throw what you can against the wall to see what sticks.”

News of Weinstein’s probable escape from justice propels me back to my own assault—to my hours on the witness stand, to the moment 12 people told me with their verdict we don’t believe you.

I feel sisterhood with every survivor of sexual assault, but feel a particular bond with those who ultimately won’t be believed. What’s happening with Weinstein exemplifies what’s always happened in sexual assault cases: as a victim, only a narrow version of yourself is acceptable, only those pieces pious and perfect.

How are women supposed to trust the criminal justice system when a man like Weinstein walks free? Will Weinstein’s acquittal serve as yet another incentive for women to not report assaults—for fear the prosecution will bungle their case; for fear of not being believed; for fear of being interrogated, judged, blamed, cursed?

I believe in the Constitution, in due process, in requiring the prosecution to play by the rules—but it’s heartbreaking when privileged men with resources prove so capable of manipulating those rules to their advantage.  For Weinstein to walk on these charges will underscore the message we are fed daily: that sexual violence against women is acceptable.

Weinstein could still be charged in another jurisdiction. There are still the remaining civil lawsuits and the settlement of many yielded $44 million in damages—to be paid by insurers, however, not Weinstein himself. The #MeToo movement has triggered hundreds of articles, thousands of conversations, and Weinstein’s acquittal can’t take that away.

These points of hope feel small in this particular case. Women around the world will collectively howl, collectively grieve, collectively lose our breath if Weinstein walks. We will feel submerged under water. 

But we will emerge. Grief will transform to fury—and on the fuel of that rage we will continue resistance, persistence. We will march, vote, run for office, show up for jury duty. We will keep telling our stories. Our dreams of equality, of walking safely in darkness, will abide.

Predators might pursue their obsession. But we will pursue ours. Our lives depend upon it.


Karen Stefano is the author of “What a Body Remembers: A Memoir of Sexual Assault And Its Aftermath," the short story collection “The Secret Games of Words," and the how-to business writing guide “Before Hitting Send.” Her work has appeared in California Lawyer, Psychology Today, The Rumpus, The South Carolina Review, Tampa Review, Epiphany, and elsewhere. She is also a JD/MBA with more than 20 years of complex litigation experience.