Why Harvey Weinstein will almost certainly walk free

Having heard countless accusations of assault at the hands of Harvey Weinstein in recent years, the only shocking part of his trial is the false narrative of victim behaviour, writes Claire Harvey.

Get ready for Harvey Weinstein to walk free.

Make that hobble free, on the Zimmer frame he’s been sporting as the ultimate “sweet old guy” accessory while coming in and out of a New York courtroom for the past three weeks.

The once all-powerful Hollywood executive, the unwilling poster boy of the #MeToo movement, is now reduced to the shuffling faux-decrepitude pioneered for an Australian audience by Alan Bond, who suffered rapid-onset dementia when his business empire collapsed and prosecutors came calling.

Prosecutors in Weinstein’s case have warned the jury not to believe he’s a harmless old man. But they know conviction on sexual assault is incredibly difficult to obtain.

Juries, despite whatever they might know from their own lives, are famously firm in the belief rape only happens in dark alleys to victims who do not do anything ambiguous or confusing. It’s hard, in the coldness of a courtroom, for a victim to explain why she might have returned to an attacker for comfort or approval, or why it might have taken her many years to realise that what happened was, in fact, assault.

Harvey Weinstein has been arriving to court with a walking frame. Picture: David Dee Delgado/Getty

Don’t we all know from our own lives that when you’re young, powerless and inexperienced, it’s incredibly difficult to recognise hostile encounters for what they really are?

In the moment, especially in youth, the aggression or misbehaviour of others can often be deeply confusing. There’s a very powerful instinct to want to please a bully. That’s how they get away with it. But in a jury room, you need all 12 strangers to agree. That’s tough.

Actor Jessica Mann, who says Weinstein raped her twice, stands accused of having continued seeing him after the alleged assaults, and of sending an email four years later in which she said: “I love you, I always do. But I hate feeling like a booty call. ;)”

In the witness box, Mann described the day Weinstein lured her to his hotel room, pressured her to massage his blackhead-infested back, then pushed her on a bed and performed oral sex on her.

“I sort of locked up and got really quiet. He asked me how it was, if I liked it. I was nervous, so I told him it was the best I ever had,” she said. “I was confused about what happened, and I made the decision to begin a relationship with him. Part of that was because I was sexual with very few people. I entered into what I thought was going to be a real relationship, but it was extremely degrading from that point on,” she said, describing Weinstein urinating on her and coercing her into threesomes.

Disgraced former Hollywood mogul Harvey Weinstein will likely face no jail time. Picture: AFP/Loic Venance

Mimi Haley, the other Weinstein accuser, is herself accused of having had sex with him after one alleged rape, and of having doodled hearts in the margins of her diary in the days afterwards.

She said on the first encounter she told Weinstein: “No, no, I don’t want this,” but later did not resist. According to Haley, who previously used the surname Haleyi, she was sobbing but did not protest. “I felt like an idiot and I felt numb,” she said. In later emails, she allegedly wrote things like: “Hi Harvey, how are you? Great to see you … Lots of Love Miriam.”

Weinstein’s defence has claimed the jury will find the evidence about the women “shocking”. “You’re going to say, ‘Oh, my God, Harvey Weinstein is innocent’,” lawyer Damon Cheronis told the jury.

Actually, the only shocking thing is that anyone today could be surprised that a woman in a vulnerable situation might continue to talk to someone of whom she’s afraid — or that she might return to her rapist in a state of confusion and self-loathing, or she might actually believe herself to be responsible, or fail until many years later to realise that this was wrong.

I’ve seen too many sex trials to be hopeful about this. It’s much harder to convict — which means accepting all the complexities and contradictions of real humanity — than to acquit, and keep believing things are nice and neat and simple.

All the defence has to do is make messy humanity seem implausible. It’s not that hard.

Originally published as Why Harvey Weinstein will almost certainly walk free