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  • Writer's pictureDurham Pro Bono Blog

The Criminal Justice System and Society are Failing Sexual Assault Survivors

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


On October 5th 2017, The New York Times published the article ‘Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades’[1], which detailed the decades of allegations of sexual harassment against Mr Weinstein. The article gave victims an opportunity to expose Weinstein’s sheer abuse of power and to tell their stories.



Since then, the Me Too Movement has had a massive impact on society: attitudes towards sexual assault have changed; greater measures are taken by governments and organisations to ensure that such abuse of power is reduced and workers can work in safer environments and the taboo element of speaking about assault has been reduced. There is a tangible impact of the movement, and it is certainly an important and much needed one. A monumental timestamp in this movement, is the recent conviction of Harvey Weinstein who has been convicted in New York City of third-degree rape and first degree criminal sexual act, facing up to 25 years in prison[2]. While the media has been instrumental so far in giving victims a platform to share their stories, it has almost been treated as a substitute for obtaining justice via legal means. Society and the criminal justice system are failing vulnerable sexual assault victims, and more must be done to address this.


The proactive role of the media is an important part of criminal justice: investigative journalism, recently, has been utilised to ensure accountability and allows victims an opportunity to obtain justice where the legal system fails them.


Ashley Judd stated that-

“women have been talking about Harvey amongst ourselves for a long time, and it’s simply beyond time to have the conversation publicly.”[3].

Indeed, what the movement has allowed for, is a constructive conversation around an offence which affects many women in many industries, including in the legal profession, where the London-based International Bar Association stated in a survey of almost 7,000 lawyers across 135 countries that bullying and sexual harassment were rife in the legal profession[4]. It is clear that this abuse is rife within our society, but the taboo nature of the topic has prevented a constructive conversation from being had. In order to allow victims to access justice for an offence which is difficult to talk about and prove, society must be ready to change. It must recognise that ‘harmless’ sexist jokes can create an unfriendly work environment or being quick to dismiss an allegation of harassment will make more women frightened to talk.


Simply, how can justice be done if society refuses to believe its victims or even give them the platform to speak about their experiences?

A question we must therefore consider, is how can the law do more help victims of sexual harassment or misconduct? As mentioned, a significant issue in high profile cases, or where the defendant is particularly famous, can be the silencing of victims. Sexual misconduct is a highly serious allegation to make and can have serious repercussions on an individual’s reputation and the opportunities which they are considered for – thus, a systemic problem, exposed by coverage of Harvey Weinstein and other powerful men, is the use of nondisclosure agreements to preserve their reputation[5]. Zelda Perkins, Weinstein’s former assistant, signed an agreement as part of a settlement that prevented her from telling even family members that Weinstein had exposed himself to her repeatedly[6]– one could argue, that the law is acting to the detriment of victims in such instances. Perkins would not have the access to the resources and legal team that Weinstein would have at his fingertips, thus such an agreement seems a viable and tempting substitute for justice. This elusive barrier to justice has been addressed by many States in the United States, with California banning nondisclosure agreements in sexual misconduct cases, and New York and New Jersey have enacted similar laws[7].


This legislative action is promising and a step in the right direction. But there are issues which are deeply imbedded within our society and legal system which deter more women coming forward to report an assault which needs to be addressed and corrected, especially in cases where the perpetrator is not well-known. Weinstein’s defence was to portray his accusers as ‘career-grabbing sluts,’ who had relations with him in order to benefit them, but labelled it rape later[8]. His lawyer, Donna Rotunno, suggested that women who are raped are at some fault and should accept some liability for “put[ting] [themselves] in that position”[9]. Such a defence encapsulates an inherent prejudice against women in such a delicate and difficult situation. Indeed, rape conviction rates are the lowest in five years in England and Wales[10]– this may leave sexual assault survivors feeling the process will be futile and justice is unattainable. Defences such as those used by Weinstein do more to perpetuate such feelings and enforce misogynistic attitudes.


Sarah Green, the co-director of End Violence Against Women, stated that-


“juries may be more inclined to make excuses for young adult male defendants because of ideas about what crosses the line and what a real rapist is,”[11]

– this is a highly concerning sentiment and one which the law may not solely be able to correct. It suggests that, first, we must educate ourselves on sexual assault and have open minds, before we can make any meaningful changes.


The MeToo movement has been a liberating movement for many but it was an overdue conversation society needed to have. The criminal justice system is not appealing to victims because of its rigorous process – more must be done to make the process of reporting an assault less abrasive, but also to educate people on what assault is, why it is important we have a discussion about it and the impact it has on peoples’ quotidian lives. The media, for now, will be the first port of call for many women, especially in high profile cases, but this should not become a substitute for justice.


Ishani Sathi

Section Editor

Criminal Law


SOURCES


[1] Jodi Kantor and Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades (The New York Times Oct 5 2017) https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html >accessed 25 Feb 2020

[2] Harvey Weinstein accusers welcome rape and sexual assault conviction (BBC News 25 Feb 2020) https://www.bbc.co.uk/news/world-us-canada-51624248>accessed 25 Feb 2020

[3] Jodi Kantor and Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades (n1)

[4]Owen Bowcott, #MeToo and the justice system: complaints up, but convictions down (The Guardian 15 Oct 2019) >accessed 25 Feb 2020 https://www.theguardian.com/world/2019/oct/15/metoo-justice-system-complaints-up-convictions-down

[5]Anna North, 7 positive changes that have come from the #MeToo movement (Vox 4 Oct 2019) https://www.vox.com/identities/2019/10/4/20852639/me-too-movement-sexual-harassment-law-2019 >accessed 25 Feb 2020

[6] Ibid 5

[7] Ibid 5

[8]Jill Filipovic, The Weinstein verdict is a huge win for #MeToo – but what's next? (The Guardian 25 Feb 2020) https://www.theguardian.com/commentisfree/2020/feb/25/weinstein-verdict-metoo-movement-whats-next#maincontent >accessed 25 Feb 2020

[9] Ibid 8

[10]Caelainn Barr and David Pegg, Rape prosecution rate in England and Wales falls to five-year low (The Guardian 6 Mar 2019) https://www.theguardian.com/society/2019/mar/06/prosecution-rate-in-england-and-wales-falls-to-five-year-low >accessed 25 Feb 2020

[11] Ibid 10

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