The Weinstein case: is #Metoo delivering justice?

They got him! It cost millions of dollars in legal fees, and involved multiple trials, settlements, and dismissal of the worst charges, but they convicted Harvey Weinstein. A bit like a buck who is taken down by a pack of wolves might receive the killing bite from a different wolf to the one who started the chase or who had the strongest bite, so too has the chase of Weinstein ended in a kill by just 2 of the dozens of allegations made along the way. The long chase and the kill has been reminiscent of the effort it took to bring down Bill Cosby.

For the #Metoo movement, this is a win, a vindication. The heart of the accusations leveled against Weinstein was always that he used his position of influence to get sex with unwilling partners. And the accusations always went beyond the notion that he was ‘merely’ soliciting prostitution, which by the way is unlawful in California. Weinstein is now proven to have overstepped the law and forced himself upon others. Whether one can prove 2 counts of that or 50 counts is somewhat immaterial in this regard: if 2 are deemed proven, the other 48 accusations that didnt make it to court are bolstered in that the public will believe there was a pattern of someone trying their luck within the law if possible, but outside of it if necessary. The conviction convinced me he was in the habit of forcefully and illegally demanding sex of those he could. His life is effectively over.

Time to look around and see the broader effects of the #Metoo phenomenon that began with the actresses of Hollywood rebelling against Weinstein.

The novelty of the #Metoo phenomenon was the possibility of crowd-sourced accusations of sexual impropriety, where patterns of misbehaviour could be found from initial accusations finding multiple co-accusers. Crowd-sourcing made it possible to find a pattern one would not see or be convinced off if one had an isolated accusation.

Not all initial accusations unearthed a pattern and thus a clear abuser. Like Weinstein, Kevin Spacey was brought down by an initial accusation that was affirmed by many follow-on accusations. As a counter-example, Michael Douglas was basically vindicated by a lack of any affirmation when an initial accusation came against him, leaving the initial accusation isolated, showing that making an accusation is not without risks to the accuser.

By construction though, finding a pattern via crowd-sourcing accusations only works with famous people because otherwise the initial accusation is not widely reported and hence will not alert potential co-accusers. So by its nature, the possibility of running into a crowd-accusation changes the costs and benefits of being famous, but changes little for anyone else. The abusive beggar on the street is not going to be unmasked by a crowd-sourced accusation.

So, one clear effect has been to raise the risks to men (and to a lesser extent women) of becoming famous or very rich: their sexual behaviour is under the potential microscope following a crowd accusations, and that microscope extends back to when they were not yet famous or rich.

This increased cost of fame will have long-run consequences, one of them being that ambitious young men are going to be much more careful about their sexual activities with people who know their names or who get a good look at them and could hence recognise them later. One might see this as the within-men leveling effect of the #Metoo movement. Famous, rich, and highly ambitious men have all been taken down a peg relative to less rich, less famous, and less ambitious men.

Note this does not mean that average behaviour has changed much, only that the behaviour of the very ambitious and famous will have changed.

Another long-run consequence is that the rich and famous men will come up with counter-measures to do what they want to do. They will abuse anonymously, visit prostitutes more often, make more extensive use of “permission contracts”, go abroad for their kicks, etc. Essentially, they will pick on weaker women and formalise their arrangements, which is of course not good news.

Important to note in this regard is that the #Metoo movement has not challenged the underlying cause of abuses of power, which is the high inequality in power. Power always corrupts and the point of chasing power is usually to exercise it towards one’s desires, so if you want to end abuse of power, you must thus end great imbalances in power. The French revolution taught us this: the sexual abuse of the French female peasants by the French male aristocracy (which went on for centuries) only stopped when the power of the aristocracy was broken. When the aristocratic women gained more power and thus started fending off the male aristocracy, the maidens in the villages were no better off.

So has life changed for not-so-famous victims?

In the immediate aftermath of the #Metoo wave, the number of sexual complaints brought to the police and hot-lines increased in many countries. In the UK, for instance, there was about a 20% increase in the number of reported rapes, which the Office for National Statistics blamed on better recording and more willingness to report, but not due to more offenses taking place. In the US, reported rates of rape almost doubled in a year, and hotlines in many countries were overwhelmed. This indicates that #MeToo raised expectations by women that finally there would be punishment for illegal behaviour they previously didn’t think would be punished.

Politicians characteristically promised that all victims would be heard, and all perpetrators would be brought to justice. Yet only very few reported rapes ever resulted in a court case, and conviction rates of the few cases going to court remained stubbornly low given the high evidence bar of ‘beyond reasonable doubt’. No more than 3% of reported rapes end in a conviction in England and Wales. Worse, rape conviction trends are down in the UK.

Indeed, the UK experience has in this regard been highly instructive: reported cases of sexual offenses went up a lot after the end of 2017, with an awful lot of police time taken up by floods of complaints, particularly after the then prime-minister promised justice for abused women. The policing and prosecuting service got overwhelmed with cases and of course tried to make the best of it. So they tried to prosecute the most promising high-profile cases, probably in the hope that big profile wins would urge many men to confess quickly, boosting the numbers of convictions. Yet, often in the courts the crown prosecutors would lose, just as the initial case against Weinstein was lost.

One key reason was the inherently murky nature of most sexual abuse cases, where both consent and interpretations of what happened are often on a knife-edge, with no external witnesses. In particular, some cases were lost because the courts insisted that the defense should have access to the mobile phone of the accuser, which then showed text exchanges with the accused that would involve ‘teasing’, ‘coercion fantasies’, and other flows of messages from her to him that the defense would portray as giving consent.

So, what did the police services in the UK do to stem the tide of both accusations and all the call-outs to the police services? The police in 2019 publicly announced – I recall via the most senior woman they could find – that they were going to insist on examining the mobile phones of any accuser before going to court. This worked. It greatly reduced the number of complaints that lead to a whole investigation and any public allegation made against someone, which of course was exactly the point of the public announcement. In typical Brit style though, the police insisted this new requirement should in no way dissuade people from coming forward with valid accusations. Whilst their case-loads were dropping, the new rule (access to mobile phones) became a hated object itself, a target for lots of campaigning and research.

This illustrates the quiet death of the promise of #Metoo for ordinary women: the legal and the police system was asked for something it can only do very sporadically when there are huge resources and lots of attention, as in the Weinstein case. Yet, by channeling the #Metoo movement towards the legal system, that system was asked to repeat the Weinstein effort for the masses, which it can’t do. It responds initially by trying to rise to the challenge and when failing due to the inherent murkiness of the issues and the inherent costs involved, the system finds a way of basically ignoring the impossible request.

The initial pre-#Metoo situation is now effectively restored because everyone remains in their theatrical trenches: the #Metoo crowd keeps insisting on justice via the courts; the courts keep saying they are indeed the way to justice and look forward to dispensing it; the police keep pretending any injustice that is found to have occurred will of course be brought to court; the politicians keep pretending everyone will get justice; and meanwhile the reality is that courts are far too expensive to ever deal with more than a trickle. So courtly justice is not a realistic promise and everyone lies about that bit because it flies against the story of what courts and its brand of justice can do. So the tension is not solved by owning up to the issue and looking at it in a totally different way, such as by non-court mechanisms. The status quo gets re-established whilst the #Metoo movement expends its energy on an additional bureaucratic rule designed to keep the tide at bay. It all ends in theater and no action.

One might think that changing definitions and reducing the evidence bar is the way to go, which is course amongst the many things being advocated, but I am skeptical that either is going to happen, or would have much effect if it does happen because it is still fixated on this idea of ‘justice in court’. Court cases with evidence and cross-examinations are going to remain a high hurdle between accusations and convictions. Also, the courts remain an incredibly inefficient system, simply not up to high case loads.

Funnily enough, Germaine Greer predicted pretty much exactly all this at the start, and was hounded for it by the #Metoo enthousiasts. Her solution was saying that we should see the problem as one of bad sex rather than good versus evil; that we should educate men to be better and more respectful lovers;  and to reduce the ‘penalty’ for most sexual offenses so as to make it acceptable to talk about it and have simpler punishment mechanisms. Her suggestions have gone nowhere, as you might imagine.

So one would expect the glut in reporting to subside as the population is learning that nothing has really changed for the vast majority: whilst crowd-sourcing allegations means a famous multiple offender is indeed more likely to be hunted down by a pack because they eventually find a case that sticks and there is enough attention to justify the resources involved, for all other cases the reality remains that sexual offenses seldom result in convictions.

The main longer-term change that remains is the increased power of middle and upper class women in their interactions with rich and famous men. They now have recourse to a crowd-accusation to see if there has been a pattern of abuse, combining as a pack to bring someone down. That increased power has an effect on rich and famous men, dragging them down relative to other men. For poor women though, this route is closed and the expectations raised are being dashed.

More wider cultural changes due to the female empowerment aspect of #Metoo might be the subject of a future post, though I should flag that there too, the effect seems to have been far less than initially promised or feared. If anything, the initial data suggests men are gaining from female empowerment…..

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Nicholas Gruen
Nicholas Gruen(@nicholas-gruen)
1 year ago

Fabulous post Paul.

David Walker
David Walker(@d-w-griffiths)
1 year ago

I was looking at Weinstein the opposite way: with a single case, the people most likely to be looked at by others have been instructed to keep their sexual behaviour exemplary or face severe penalty.

That seems like a great return on the US taxpayer’s dollar. What am I missing?

paul frijters
paul frijters
1 year ago
Reply to  David Walker

I agree its money well spent. It simply cant be repeated for the masses and this has now become very visible.

In terms of wider cultural impact you alude to, ie role models beyond the rich and powerful, I merely want to quiet mention Trump. He has had way more impact than Weinstein and he is conspicuously getting away with an awful lot. Doesn’t hurt him with the voters either, male or female.

Jerry Roberts
Jerry Roberts
1 year ago

Courageous, brilliant and fascinating.

Nicholas Gruen
Nicholas Gruen(@nicholas-gruen)
1 year ago

This looks like an encouraging grassroots attempt to crowdsource and triangulate allegations