Harvey Weinstein, the universally accepted villain of the #MeToo movement, is a sinner, not a rapist, his defense attorney Donna Rotunno told Gayle King in a televised interview last September. Asked about her strategy in his criminal trial on charges of sexual assault and rape, set to begin on Monday, Ms. Rotunno offered an advance peek. There are always “blurred lines” and “an area of gray” between men and women in sexual circumstances, she said. And memory can be faulty “years later.” But she’s confident the evidence will exonerate her client.
Over 80 women have made public accusations against Mr. Weinstein; on Monday, he was charged in Los Angeles with four counts of sexual assault. In the post-#MeToo court of public opinion there are many for whom a charge sheet this extensive demands an automatic guilty verdict. In the courts of New York State, however, where due process prevails and there are only two official accusers, the outcome is less certain.
Here’s what we know so far: One accuser alleges that Mr. Weinstein overpowered and raped her in a Manhattan hotel room in 2013; the other that he forced oral sex on her in 2006. It appears that three additional women will be allowed to testify as “prior bad acts” witnesses to bolster the prosecution’s case. So will the actress Annabella Sciorra, who claims that Mr. Weinstein overpowered and raped her in the 1990s.
All indications are that this trial will raise a lot of messy questions about the nature of sexual consent. Dozens of emails from one of the accusers to Mr. Weinstein — affectionate in tone and extending for years after her alleged rape — have already been made public. Be prepared for testimony about physical force to be countered by attacks on all the accusers’ credibility.
“You had a choice, and you made a choice”: That’s how Ms. Rotunno put it in the September interview, as if previewing her cross-examination tactics. She seemed to be addressing the entire #MeToo movement as well, at least those who, she says, blame men for their choices. She kept hammering that word “choice,” as if women being bullied for massages by a large naked movie producer are characters from the pages of a microeconomics textbook, deliberating the potential costs and benefits before determining their preferences. I thought I heard echoes of Ayn Rand in there too: All choices are “free choices,” with heroic individuals manfully clearing away whatever flimsy obstacles — gender, power, history — fetter our freedom.
In the courts too, the “reasonable person” standard is a supposedly gender-blind construct. How will such an institution fairly referee the “choices” women are routinely faced with? For instance, navigating Hollywood offices and hotel rooms in a system stacked toward sexual exploitation, where women’s looks and sexual allure have historically been the entrance ticket for career advancement — and where extracting sexual kowtowing from women has been, for certain serial abusers, a measure of their power in the industry.
What, in other words, does the legal trial of Harvey Weinstein have to do with the larger demands for cultural overhaul instigated by the exposés of #MeToo?
Whether or not those 80-plus allegations are admissible in court, they’re still an archive of social information, a window onto some ugly truths about how sex and power operate in our time. So what can we learn? To begin with, that the sexual allure demanded of actresses is treated by some men as a chit to be called in, a promissory note. That many other women in Mr. Weinstein’s orbit, from his employees to the occasional unlucky journalist, were regarded similarly, as though sexual availability was a given and every interaction followed the code of the casting couch. As though women are never not bargaining with our sexuality, and are open for business 24-7, like a convenience store.
If #MeToo exposed the extent to which media moguls and kingpins operate on the assumption that sexual payola is their due, it turns out that sexual shakedowns go on in every industry, from fast food joints to auto assembly plants to Wall Street. But Hollywood and the media industries are still special cases — after all, they write the cultural scripts.
For instance, when I flip past a television cop show, all of which now seem to feature male-female partners (meant to signal gender progress), I notice the male cop is invariably wearing a suit and the female cop is often busting out of a tank top. I suppose I could read this as a display of sexual confidence and toughness rather than a billboard for sexual availability, but the mandatory brandishing of breasts does seem to offset any gains in social power. Either way, she must be freezing.
The convergence between the sexed-up wardrobe onscreen and the sexed-up treatment of women offscreen seems both obvious and the great verboten subject. Seth MacFarlane was widely denounced for his painfully truth-telling (and name-naming) musical number, “We Saw Your Boobs,” at the 2013 Academy Awards — considerable umbrage was taken. But isn’t it a curious fact that so many directors manage to portray the complexity of their male characters with so much less of the actor’s anatomy displayed?
Demands for sexual pay-to-play by a rutting producer holding all the career cards may be horrific. It may well be criminal if force is involved (or perhaps not: Quid pro quo requests aren’t actually a crime, only a violation of civil employment law). But it’s not exactly a departure. In a system already rigged for sexual manipulation, what’s most notable about Harvey Weinstein is that he tried to rig it even more, traversing the distance between expectation, insistence and (some allege) force with such alacrity that his targets couldn’t even think.
Some say women commodifying our sexuality on our own terms is a form of empowerment. It’s a subject of continuing feminist debate, from Madonna’s heyday to sex workers’ unions. For my part, I wonder about the practical problems of transactional sex: How do you enforce the terms of the deal on an uneven playing field? Even in cases where women yielded to quid pro quo demands — and maybe a better term for this is “decision” rather than “choice” — it’s not clear that Mr. Weinstein actually came through with the goods. Wow, who would have thought such a stand-up guy couldn’t be trusted?
Traditionally, women are socialized to be sexually strategic; men not to take no for an answer. Feminism has tried to rewrite that narrative, but the culture remains saturated with images that normalize it, that make women’s sexuality our selling point. It’s not like any of this is hidden. Consider the armies of young women tottering around the nightclub district of any American city in camisoles and stilettos every weekend night of the year even in the dead of winter (aren’t they freezing?) because that’s what sexiness looks like onscreen, and maybe some form of reward will follow.
There’s no overestimating the importance #MeToo has had in forcing cultural change on industries and institutions across the country. It’s exciting to see that momentum start to transform the screen images that shape the larger culture too: Women playing down the come-hither thing, more offbeat-looking women, a few chunky women (and not just in comedy specials). Now how about those “window-dressing” roles too — or maybe calling a close to the era of women as window dressing altogether?
Mr. Weinstein may be our most flagrant monster at the moment. But what if the whole system is abhorrent? The basic acceptance of gender inequality is, to me, the subtext of his trial. It also happens to be the question our courts are least equipped to deal with.
Whether or not Mr. Weinstein ends up behind bars, there’s a more radical possibility to consider: If sex is going to be bartered, let’s guarantee it happens on a level playing field.
Though come to think of it, how much sexual barter would be required on a level playing field?
Laura Kipnis is a professor at Northwestern and the author of Unwanted Advances: Sexual Paranoia Comes to Campus.