What are we to do with #MeToo?

Harvey Weinstein is awaiting his fate at the hands of a jury but the final stage of the #MeToo movement is undecided.

Movie producer Harvey Weinstein outside the New York Criminal Court with his lawyer Donna Rotunno. Picture: AFP

In an unusual closing address to the jurors deciding Harvey Weinstein’s fate, his lawyer Donna Rotunno warned them that the “world is watching”.

That we are.

Rotunno reminded the jury in the New York court that they “have an obligation to themselves and their country, to base their verdict solely on the facts, testimony and evidence presented to them in the courtroom”.

She is right again. But delivered by Rotunno in a short op-ed published­ last Sunday in Newsweek, this was an unconventional way to address the jury. It was two days before the seven men and five women on the jury retired to decide­ whether Weinstein is guilty or innocent of all or some of the five felony charges he faces, ­including rape, sexual assault and predatory sexual assault.

Many of us have also been watching this sassy Chicago lawyer. Depicted by some as an anti-feminist for taking the job as Weinstein’s defence lawyer, Rotunn­o attracts her own attention. Not just for her expensive clothes and Jimmy Choo shoes, and the fine gold chain around her neck that reads “Not Guilty”.

She started her own law firm at 29, has represented 40 men accused­ of sexual misconduct, and has lost only once. She is said to have a courtroom sketch of that case on her office wall as a reminder­ of loss. One client described­ her as a “bulldog in the courtroom”.

Rotunno was never going to endear herself to #MeToo zealots. And legal purists have instinct­ively, and not unreasonably, sniffed at her unconventional media splashes. Prosecutors ­labelled her comments in Newsweek as tantamount to tampering with the jury and the judge put a gag order on her, and Weinstein’s other lawyers, to stop them using the press to boost their case.

But we are also watching an inevitable­ consequence of the #MeToo movement. Like previous stages, it is a mixed blessing. What’s a lawyer to do in the age of #MeToo when defending a man whose trial has been anything but conventional?

Rotunno’s very public closing words in Newsweek last weekend reflect the reality of where #MeToo has taken us — two very different trials with different rules, one in a salubrious and solemn New York courtroom where longstanding legal principles still apply, and another one prosecuted in the wild west of the media where Weinstein was hung, drawn and quartered long before a jury took their seats early last month.

Maybe he was found guilty by the media for good reason; he is a truly grotesque man who abuses his power, and abuses women. But as Rotunno said in other comments to the media, she is not ­defending everything Weinstein has done, only the charges he is being tried for in court.

And there is a world of difference, she noted, between sins and crimes. “You can believe that Harvey Weinstein is a sinner … and … did things that you wouldn’t do. But my question here is, does that rise to the level of a crime?”

Much of what Rotunno has said in court and in the media forms a laser-sharp critique of how a well-meaning movement to uncover­ the mistreatment of women by men has become a messy, complicated and deeply flawed endeavour. The more critics push back, in default mode, against sensible observations such as hers, the harder it will be for the #MeToo movement to become a serious social justice movement.

In a podcast interview a few weeks ago, the defence lawyer spoke with Megan Twohey, one of two journalists at The New York Times who broke the Weinstein story more than two years ago. ­Rotunno made headlines for her last comment, when she said she had never been sexually assaulted because “I would never put myself in that position”.

It was a ridiculous thing to say. The reality is that appalling violence comes to the innocent, as we saw this week in Brisbane when three beautiful young children and their mother were allegedly stalked and murdered by the children’s father. Rotunno might have said she was fortunate to have never been sexually assaulted and then added she tried to make choices that kept her away from risky situations with men.

Though it is far more complic­ated than Rotunno’s unusually clumsy words, even in the context of Weinstein’s depraved abuse of women, it is also the case that sometimes, but not always, women do have choices about the circumstance they put themselves in. Choosing to go to a man’s hotel room at midnight comes with risks, for example. It is not unreason­able, nor is it victim-shaming, to expect women to beware­ of risks and take responsibility for their actions.

We tell our sons and daughters to be careful when they go out at night, when they travel, and so on. How different is this from a grown woman telling herself to be careful about the choices she makes? If we are stuck in a place where that ­suggestion is verboten then we have bigger problems than men such as Weinstein. We have become­ untethered from reality where some women do make dreadful decisions to further their careers.

Rotunno alluded to that in her formal closing address. “(The prosecutors) have created a universe that strips adult women of common sense, autonomy and responsibility­,” she said. “In their universe women are not respons­ible for the parties they attend, the men they flirt with, the choices they make to further their own careers­, the hotel room invitations, the plane tickets they accept, the jobs they ask for help to obtain,” Rotunno told the jury.

Weinstein’s defence, led by Rotunno­’s cross-examinations, is that the two women at the centre of the criminal charges against Weinstein made deliberate, knowing choices; their encounters with Weinstein were consensual; and they actively maintained friendly contact with him, including sex, after the alleged assaults.

It is hardly surprising that a half-hour after the jury began its deliberations on Tuesday morning, the members asked the judge for more clarity around the legal definition of consent.

Whatever one thinks of Weinstein, and the evidence against him, outside the courtroom it is clear that too many who are part of the #MeToo movement reject any grey areas around consent and discussio­n of choices some women make. Rotunno wasn’t wrong to point out that “having voluntary sex with someone, even if it is a begrudgin­g act, is not a crime after the fact”.

There is also a problem with the simplistic idea asserted by many #MeToo followers that women never lie, that they must always be believed when claiming sexual harassment, sexual assault or rape. If that is the case, why bother with a police investigation, a trial, due process, the presumption of innocence and the right to question the accused in court? Why not do away with the whole damn jury system?

This is, as Rotunno has said, “damaging and detrimental” and needs to be weighed against many positive out­comes from #MeToo.

Rotunno and Twohey’s lengthy and respectful discussion, often disagreeing, is a reminder of the history of the #MeToo movement. Though they don’t lay it out as such, it is becoming clearer that there are five stages to the #MeToo movement: the Frenzy; the Filtering; the Flaws; the Reckoning; and the Result.

There is not always a neat consecutive order to these different waves of #MeToo and, like the five stages of grief, some people move faster through the stages than others.

The first stage was the frenzy, as women the world over used social media to post their #MeToo experie­nce of being mistreated by men. Fuelled by unhelpful and hopelessly wide definitions of sexual harassment, every woman had a story to tell. In this frenzied period­, the #MeToo movement threw credibility to the wind.

The second phase, which came quicker to some than others, involved a basic filtering process because women attaching a hashtag to every slight they experience necessarily dilutes and demeans more serious cases of sexual abuse. But some remain more resistant to common sense than others.

The sexual prudes, #MeToo zealots and corporate worrywarts still stand ready with their sledgehammer to crack a nut. Our own former prime minister Malcolm Turnbull instituted a bonking ban in parliament as his salute to #MeToo. Nervous boards at Intel Corp and McDonald’s have offloaded their chief executives for having an entirely consensual inter-office romance.

The third stage of the #MeToo movement is where we recognise, and respond sensibly to, the deeper flaws of the movement. Kudos, then, to the makers of Apple TV+ series Morning Wars for raising questions about the way the #MeToo movement has affected workplace exchanges between men and women.

The fourth stage is a wider awakening, a reckoning with the flaws by more and more women and men so that #MeToo can become­ a more credible, effective, and enduring movement for change. It will require an end to the preference for rough justice over the rules of natural justice.

The final stage of the #MeToo movement is yet to be determined. While Weinstein has been there from the first stage, when literally dozens of women tweeted about his tawdry and allegedly criminal behaviour, the verdict in this case will not decide where #MeToo finall­y lands as a social justice movement. If it is to be like other movements, the benefits will be overwhelming and incontrovertible. In the end, the final balance sheet for the #MeToo movement will rest on whether, and how, we move through the five stages.