The Offense That Harvey Weinstein Can Never Be Convicted Of


For the first time in years, there is a chance that Harvey Weinstein could walk free.

His New York conviction for sex crimes was overturned on Thursday. Manhattan’s district attorney says he wants to retry Mr. Weinstein, but that seems, at most, a maybe. The former film producer still has a long sentence to serve in Los Angeles, though next month he is expected to appeal that conviction on grounds similar to those that were successful in New York. His lawyer is the same one who got Bill Cosby’s conviction tossed out.

Many of Mr. Weinstein’s accusers say they are horrified. Even some of the seven judges who participated in the decision were outraged. The majority — ruling that his trial was unfair because it introduced witnesses separate from the central charges — prevailed by a single vote, 4 to 3. The dissenting judges described that decision as “oblivious,” “naïve” and “endangering decades of progress.” They have joined a roiling debate about what the standard of evidence in sex crimes trials should be.

But criminal convictions have never seemed like the ultimate measure of Mr. Weinstein’s behavior. Whether he remains a felon or not, he can never be tried for the most overarching offense he is accused of.

That is because, at its core, the Weinstein story — along with its greatest impact — is all about work.

“A lot of these stories are about what’s been lost career-wise, and there’s no criminal remedy that is going to get at that,” Deborah Tuerkheimer, a law professor at Northwestern, said in an interview.

Back when Mr. Weinstein was at the height of his power, he had many gifts as a producer. But where he stood above others was in his ability to make careers. He hired and molded Matt Damon, Michelle Williams, Jennifer Lawrence, Quentin Tarantino and some of the most successful producers working today. He invented the Oscar campaign as we know it. At those awards, he was thanked more often than God.

Behind the scenes, he was summoning that career-shaping power in the darkest way, according to his accusers. The nearly 100 allegations about Mr. Weinstein range in severity from harassment to rape. But almost all those stories follow the same plot: Whether they were actresses or assistants, the women were mostly young. Some were in their first month, or even day, on the job. Laura Madden was a novice assistant on Irish movie sets. Rowena Chiu had directed plays at Oxford University. They and many others wanted to work, to contribute, to secure a piece of the action in a mostly male-run business.

Mr. Weinstein is accused of luring them and many others with a standard script that promised a career payoff. Come to my hotel room to talk about how we can throw you an Oscar campaign, Judith Godrèche said he told her. Join me to review this newly shot footage, Sophie Dix recalled him saying.

When Dawn Dunning arrived in his hotel room for what was billed as a work meeting, she said, he offered her contracts for his next three films on the condition that she have a threesome with him. (Mr. Weinstein has denied all allegations of nonconsensual sex.)

“Welcome to the Miramax family,” Katherine Kendall said he told her in 1993. Soon he was nude and she was fleeing, she said.

“He said the things that make you think that’s going to happen for you,” Ms. Kendall recalled in a recent interview. “He didn’t hint. He came right out and said it. He’s Harvey Weinstein, and he’s directly handing you the key, or so you think.”

Over the years, he appears to have honed the pressure even further, deploying one woman’s name to push the next. Though Gwyneth Paltrow spurned his advances, some women say he goaded them by claiming that she and other stars had said yes, that they had only won their roles and Oscars by sleeping with him. By their description, it was a system of turning women’s aspirations and achievements against them. Work was also the reason many stayed silent for years: They feared that speaking out would mean ruin.

Years later, many Weinstein accusers have told of the pain they experienced over physical violations. But they have also aired grief over career losses. Many of the women are middle-aged now. They point out that there are no do-overs in their work lives. That without Mr. Weinstein, they might have achieved more. That they can never get those years and possibilities back.

Caitlin Dulany, a 60-year-old former actor, said in an interview that her memories of her encounter with Mr. Weinstein — he offered career help and shocked her by taking his clothes off, she has said — are “100 percent mixed up in the loss that I feel career-wise.”

This is the part of the Weinstein story that no criminal court is likely to come close to addressing. Sexual harassment is illegal, but it’s not a criminal offense, and the laws and system that combat it are generally weak. The criminal justice system isn’t built to remedy the destruction of someone’s career options or ambitions. Women have pursued civil suits against the producer, but many were bundled into one big case that left them waiting in line with other parties owed money by the Weinstein Company. Compared with the payouts for, say, Jeffrey Epstein’s victims, the remuneration has been spotty.

But while the centrality of work to the Weinstein story has made accountability difficult, it has also endowed the saga with some of its special moral force and helped cohere a powerful new consensus on workplace standards.

Not long ago, a little sexual harassment here and there in the workplace — or sometimes a lot — was often tolerated. Now, it’s far less common to see that behavior rationalized or accepted. During the initial Weinstein investigation, in early interviews, some dismissive Hollywood executives pooh-poohed his behavior, referring to it as “chasing women around a desk.” Now, some of those same executives are making films and television shows with “intimacy coordinators” on set to prevent misbehavior. Harassment investigations have become a mini-genre of journalism. Before the Weinstein allegations emerged in 2017, firings for workplace misconduct were exceptional; now, they happen all the time. In the past seven years, laws about sexual misconduct — strengthening worker protections, limiting secret settlements and making it easier to bring claims — have been passed in nearly half the states in the nation.

“The norms have changed,” Ms. Tuerkheimer said. “It’s not that there aren’t transgressions, but the baseline has been reset.”

Whatever happens in criminal court, this is the true legacy of Harvey Weinstein, or better yet, the women who came forward about him: No one should ever show up at a job to face unwelcome sexual pressure from the boss.

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