As Weinstein’s retrial ends in a partial victory for survivors, it also reveals a troubling cultural regression—where old doubts about victims are resurfacing under the guise of post-#MeToo “progress.”
A Manhattan jury has reached a verdict in the retrial of Harvey Weinstein, finding him guilty on one count of first-degree criminal sexual act for a 2006 assault on film producer Mimi Haley. Weinstein was found not guilty of one of the charges, and the jury could not agree on the third, prompting the judge to declare a mistrial.
It was just over a year ago that the New York Court of Appeals reversed Weinstein’s first conviction because multiple women were allowed to testify about uncharged sexual assault allegations. At Weinstein’s retrial, three main alleged victims—Mimi Haley, Jessica Mann and Kaja Sokola—testified, and no additional accusers.
The defense team argued that the women had consensual sex with the mogul to advance their careers, and later lied because they regretted the transactions. The jury rejected these attacks—at least in part—and found one of the victims credible. This validation is meaningful. The guilty verdict closes a chapter that began when blockbuster reporting on accusations of sexual assault against Weinstein sparked a movement.
But the mixed verdict reflects a larger truth: The zeitgeist around #MeToo has profoundly shifted. If Weinstein’s first trial in 2020 marked the high-water mark of #MeToo-era accountability, his retrial comes at a time of enormous retrenchment. According to the new conventional wisdom, the movement was a failed exercise in overreach.
In keeping with this wisdom, several influential political and cultural commentators cast Weinstein’s prosecution as the epitome of #MeToo excess.
“I can’t believe I’m on Harvey Weinstein’s side,” said Joe Rogan on his popular podcast reaching many millions of listeners.
“I thought he was guilty of, like, heinous crimes and then you listen, and you’re like, ‘Wait, what? What is going on?’” Candace Owens, another notable right-wing commentator, seconded Rogan’s skepticism. “I’ve concluded that Harvey Weinstein was wrongfully convicted and just hung on the #MeToo thing,”
Across the political spectrum, the #MeToo backlash is spreading, resulting in a shift in the responses to accusations of abuse. Calls for accountability are being replaced with forceful demands on victims: Report promptly, end the relationship immediately and take control of the situation.
Bill Maher recently captured this sentiment when he suggested, “Things have changed enough so that moving forward, the rule should be if you’re being abused, you’ve got to leave right away.” Maher added, “Don’t tell me any more about your contemporaneous account that you said to two friends 10 years ago. Tell the police right away.”
While dressed in modern garb, today’s distrust of accusers who delay reporting is hardly new. For most of our history, a “prompt outcry” rule was baked into our law, as explained in my book on accuser credibility. The rule rested on an abiding suspicion of accusers, equating delayed reporting with falsehood and allowing only rape allegations reported soon after the incident to proceed.
In 1900, the Utah Supreme Court invoked “the natural instinct” of a woman to report her abuse promptly, concluding, “The absence of such disclosure tends to discredit her as a witness.”
In 1962, an official posture of disbelief was enshrined in the Model Penal Code, an influential guide for lawmakers. To justify its prompt outcry rule, the code described accusers as “vindictive” and cited the “dangers of blackmail.”
Although the prompt outcry rule was jettisoned during recent revisions of the code, the old rationales are echoed in contemporary attacks on women who come forward against powerful men.
Likewise, today’s demands that women “leave” their abusers in order to receive legal protection have a long history. As a domestic violence prosecutor in the late 1990s, I confronted this tacit requirement whenever I stood before jurors, having to redirect their focus to the defendant’s actions. Counterintuitively, in cases where the victim did not testify for any number of understandable reasons and I could prove the case in other ways, I felt far more confident that jurors would concentrate on the evidence and decide to convict.
The question Why didn’t she leave? has been answered time and time again. But the question is continuously raised, nearly always to the detriment of a victim who managed against the odds to come forward and fight for accountability. Accusers who remain in a relationship with their abuser are often perceived as lying, blameworthy or undeserving of justice. Because these retrograde tropes protect the status quo, they endure.
What has changed is that #MeToo’s legacy is now being leveraged to bolster the case for accuser skepticism.
There is a cruel irony in the weaponization of progress to set back the cause. Notwithstanding the movement’s successes, it was unable to dismantle a deeply-rooted system of steep credibility discounts for accusers. Harvey Weinstein took advantage of this system to prey on women. The jury’s verdict provides a measure of justice, but the work is unfinished, and it must continue.
