If our legal system cannot appreciate the relevance of historical patterns of behavior, we can never combat violence against women successfully.
My first year as a psychiatry resident has reinforced my longstanding belief that past behavior predicts future behavior.
In the last few weeks, I’ve had an unusual load of suicide risk assessments post-suicide attempt, in which I delve into the devastating crevices of patients’ lives after one of the most horrific events they can experience.
My suicide risk formulation looks something like this:
- understanding chronic (things we can’t change) vs. modifiable (things we can change) risk factors;
- considering available resources that can alleviate a crisis—family support, engagement with mental healthcare, future-orientation, for example; and
- trying to anticipate circumstances that may acutely elevate a patient’s risk of completed suicide—substance use or a major stressor, among others.
My assessment of a patient’s chronic suicide risk is governed by a well-known principle: The strongest predictor for completed suicide is attempted suicide. Research shows that there may be 10 to 40 nonfatal attempted suicides for every completed suicide. We often use past behavior to inform our clinical estimates of the likelihood of this behavior occurring in future.
While we cannot predict anyone’ actions with certainty, we need to understand past behavior to make educated assessments about risk and to intervene appropriately to preclude future tragedies. I’d be operating on incomplete information if I evaluated someone without considering past behavior. And I cannot make sound judgments on incomplete information.
We use a similar principle in violence risk assessments. The HCR-20 (Historical and Clinical Risk Management) is the most favored risk assessment tool—with the caveat that it has limitations and is meant not for long-term predictions of violence, but to assess risks within a specific context and to look for points of intervention, conceptually similar to the suicide risk formulation. We account for historical factors when assessing violence risk, which include—you surmised correctly—committing prior violent acts, holding violent attitudes and engaging in other antisocial behavior.
Over 80 women, including Gwyneth Paltrow, Mira Sorvino, Rose McGowan and Ashley Judd, came forward with accounts of sexual harassment and assault by Harvey Weinstein, more than sufficiently attesting to his decades-long history of violence against women.
Weinstein’s established pattern … indicates someone who freely and remorselessly abuses women for his own self-gratification..
I’d say he certainly holds attitudes of violence towards women, based on Ambra Battilana Gutierrez’s brave and damning recording in which she captured Weinstein’s admission of groping her breast. Weinstein notably replied: “Oh please … I’m used to that.” I’m used to that, he remarked on sexually assaulting women with perturbing ease, as he pressured Gutierrez to come to his room, despite her repeated protestations. His casual attitude towards sexual assault and total disregard for her unequivocal “No” in that recording speak volumes about his aggressive entitlement to women’s bodies.
That entitlement bleeds into arguably antisocial tendencies. (Disclaimer: I am not diagnosing him.) Weinstein’s established pattern—sexually preying on young, vulnerable women; assaulting them; leveraging or damaging their careers if they rejected him, as Judd and Sorvino experienced; and silencing them with coercive and restrictive legal contracts to avoid accountability—constitutes antisocial behavior. It indicates someone who freely and remorselessly abuses women for his own self-gratification.
As a psychiatrist, I believe a complete understanding of his predatory and sexually violent pattern of behavior towards women is integral to judging Weinstein appropriately—a belief the prosecution clearly shared, given the introduction of “Molineux witnesses” (witnesses allowed to testify about acts the defendant has not been charged with committing) to Weinstein’s original New York trial, whose testimony was crucial to a thorough appreciation of Weinstein’s long-unchecked crimes.
After pained debates, the New York State Court of Appeals disagreed, ruling in a close 4-3 majority opinion that allowing this testimony precluded a fair criminal trial for Weinstein by violating a cardinal rule: Defendants may be judged only on the crimes with which they are charged. The majority opinion summarized Weinstein’s appeal:
“He was judged not on the conduct on which he was indicted, but on irrelevant, prejudicial and untested allegations of prior bad acts.”
Their decision to overturn Weinstein’s conviction lends credence to the insulting statement that the Molineux witnesses’ testimony was “irrelevant to the case.”
I am no legal scholar but, for me, the problem with declaring that testimony irrelevant is that it presumes inappropriately that the crimes for which Weinstein was charged happened in a vacuum. Context is everything when it comes to sexual and physical violence against women. Weinstein had more than a “propensity” for sexual assault; he demonstrated a serially predatory pattern of behavior of targeting and violating women and learned from the systems that enabled him that he could get away with it. Knowledge of this pattern is not prejudicial; it is necessary for a thorough understanding of the perpetrator.
The opinion also ignores the fact that the “untested allegations” remained untested due in no small part to systemic failures that have historically undermined and neglected victims. Gutierrez reported her 2015 assault by Weinstein; then-Manhattan District Attorney Cyrus Vance declined to prosecute Weinstein. These corrupt and complicit systems are just as much at fault as Weinstein for perpetrating abuse.
The problem with declaring that testimony irrelevant is that it presumes inappropriately that the crimes for which Weinstein was charged happened in a vacuum.
The overturning of Weinstein’s conviction merely emphasizes the degree to which protection of sexual predators at their victims’ expense and permissibility of male violence against women are entrenched in our institutions. It further reinforces for men who commit violence against women that they can successfully evade accountability.
In psychiatry, we assess and understand patients on complete information to mitigate risk and to prevent harm with sound interventions. We do this clinically, so why not legally? This system-level cherry picking of allowable evidence is a victory for no one but predators and poses another structural barrier to holding male violence accountable.
On a personal note, I’ve been writing about gender-based violence for a year now. I and women like me who have endured male violence have offered not only our vulnerability, pain and anger, but also logic and evidence to create a better world for the women who will come after us. With this latest decision, I’ve lost the will to be angry. I don’t know that I would even call myself sad, so much as defeated, and I imagine that women like me feel the same sting of institutional betrayal. Perhaps it is the recent spate of violence at my job or the memories of my own pain from another system bent on shielding my abuser over protecting me.
But I have lost the energy to articulate the hopelessness I feel at this legal blow, and I offer Hemingway instead: “I’m not brave anymore, darling. I’m all broken. They’ve broken me.”
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