The Harvey Weinstein case, a flashpoint for the #MeToo movement, has finally come to court. On January 10, female protesters gathered outside the Manhattan courthouse, chanting “The rapist is you… patriarchy is a judge” in English and Spanish. Inside, the Hollywood producer’s lawyers argued that the demonstrations would unfairly bias the jurors, who were still being selected. The trial had not properly begun, but public outcry and progressive politics were already clashing with legal conservatism and the problems of proving a particular prosecution.
It is a sprawling case. In New York, Weinstein is charged with five felony counts based on two complaining witnesses: two counts of predatory sexual assault, one count of first-degree criminal sexual assault, one count of first-degree rape, and one count of third-degree rape. In California, Weinstein is charged with four counts also based on two complaining witnesses: one count of rape (there are no degrees of rape in California), one of forcible oral copulation, one of sexual penetration by use of force, and one of sexual battery by restraint. Weinstein’s maximum period of potential incarceration in New York is life in prison: in California, 28 years. These terms may be served, if there was immortality, consecutively.
The New York defense team has already signaled its position: that the encounters were consensual, and that any power inequity in play was understood and accepted by both parties. Thus, the language of feminism, and of women’s sexual agency, is to be used as a shield against the power of patriarchy and male sexual predation. And in this case, the law, often a means of women’s oppression, is to act as their avenger. So far, so ordinary. Consent is the usual defense if there is adequate proof that sex occurred; and the courts are where we enact our fantasy that justice is possible.
As a feminist and a criminal defense attorney, I don’t believe justice is possible. Except in language.
All the law is, and all the law offers, is language, from the language of the statute as written, to the witness’s testimony as transcribed, to the interpretations and applications of the law inscribed by the courts of law and articulated in those of public opinion. And if all the law is, is language, justice is also just a word. If Weinstein is acquitted, it does not mean that he is innocent, only that he is “not guilty” — a failure of proof. If Weinstein is convicted, it does not mean that he did not believe that a particular woman did not consent, only that consent is unilateral. Justice may also be.
In Measure for Measure, Shakespeare has a good joke in which “justice” is rendered into “just ice.” This is funny because it’s true: The law freezes events as if to exist in glacial perpetuity. The nature of “consent,” however, is not frozen. Its meaning has shifted historically and culturally, causing anxiety to those who believe that a sex act can only be understood according to the social mores of its own era and never reevaluated. The same shift has provided comfort to those who see sex as a verb, happening in the present, puncturing the past: as movements of a self that does not stay the same. Consent, then, must be subject to recall and reinterpretation, to a shifting ontological frame.
The current model of heterosexual consent presumes that man is inherently predatory, woman prey. Consent, ideally affirmative and ongoing, acts as a structural compensatory mechanism to address the relative inequity between the male and female positions. The American judicial system is similarly structured: The government, inherently predatory, must be buttressed against by a set of civil liberties that are to protect the individual, the presumptively less powerful defendant. Which most defendants are — certainly those I represent. Consent to the court means consent to a performance of process predicated on this inequity. The comfort of the legal process is its fixity, the idea of precedent, the structural constancy it promises. Discomfort lies when we are too clearly shown that the scales are thumbed: Weinstein is too wealthy, the Stanford swimmer too entitled, countless others too poor, too subject to policing.
The heterosexual paradigm brings to the justice system not perfect equity, but perfect inequity. In this interpretation of consent, power is innately fixed, and its performance must be structurally addressed if justice is to be measured out. But because each prosecution depends on the vagaries of proof, the larger context is not part of the case. Other women may testify against Weinstein to show a pattern of abuse and his disposition towards predation. But the community cannot attest to the guilt of the frame itself, that rape culture is culture as we know it. The evidence of this culture isn’t confined to its juridical extrusions, like Weinstein. What is characterized as “rape culture” is embedded in the very frame of society, in institutions like the courtroom. And the hotel room, though there are panic buttons built into one chamber, but not the other.
Is the act of coming before the law then similar to consenting to heterosexual sex? The defendant has no choice, obviously, but neither does the witness, once a subpoena issues. But if consenting to sex means consenting to desire, which is fundamentally nonconsensual — I do not choose who I desire, it happens, or not, I do not choose who desires me, it happens, or not — and then I am caught, the subpoena issues, and, what the law poetically calls a “body attachment” may follow, so the police may force me to come before the court. The concept of heterosexual consent functions as an inequity “balanced” by a unilateral execution. Then the law works similarly.
So what do we consent to when we consent to the law? The law is not, and never has been, a justice factory. Like Hollywood, it is a dream factory, one that deals in words and meat, rendering both palatable. The other easy defenses available to the Weinstein team is that bodies are routinely bartered, and many of his accusers are “acting for a living.” Me too, as well as all the characters who strut in a stock courtroom and those who play their audience, demanding embodied justice, while courting fiction.
You taught me language, and my profit on’t
Is I know how to curse. The red plague rid you
For learning me your language!
— Shakespeare, The Tempest
#MeToo, galvanized by the Weinstein case, has been described as a “witch hunt,” and thus, the opposite of justice. Leaving aside the easy observation that persecution of witches was largely the persecution of women by male authorities, more interesting is the notion that at the times when witches were being hunted, witches existed. Because if a culture believed in witches, so “witches” must have believed in themselves. Because we are as we believe ourselves to be, and our beliefs are not innate. What we believe are our veridictions — our singular tellings of collective truths. Harvey Weinstein, like other powerful men, believed in himself. What’s demonic is not the belief, but knowing how to curse, to learn and use the language of damnation. Like a curse, the language of law applies language beyond its capacities, rendering stories into facts, lives into sentences. And the language of justice, as history shows, is a frozen inferno of aggressions and retaliations, as cyclical and stained as the earth.
On January 15, Weinstein’s legal team filed for a change of venue, to move the trial away from the “carnival-like atmosphere” of Manhattan. It is worth noting that the significance of the carnival is described in Wikipedia as follows:
Interpretations of Carnival present it as a social institution that degrades or “uncrowns” the higher functions of thought, speech, and the soul by translating them into the grotesque body, which serves to renew society and the world, as a release for impulses that threaten the social order that ultimately reinforces social norms, as a social transformation, or as a tool for different groups to focus attention on conflicts and incongruities by embodying them in “senseless” acts.
The grotesque body, in this case, is embodied in the courtroom and by the courtroom.
What if we withheld or refused consent to the rule of law? Not as violation, in the way of a criminal, or as avoidance, in the way of a fugitive, but as a structural intervention. In doing so, we might look to an alternative address that understands itself not as redress, not as end game — concerned with this individual perpetration and punishment, this discrete act of disposition or even resolution — but as a transitive relation.
What if we held truth and reconciliation tribunals instead of trials, in public hearings that could consider the individual perpetrator and victims as well as the guilt of the frame? Neither adversarial nor inquisitional, but a trilectical process, one which counts context as part of, but also apart from, any dialogues — and silences — within. Such a hearing could be then more of a listening, in which accountability relies not on a body count but on the assumption that we, the people, do not consent to a fantasy of justice that is meted out piecemeal by a system that does not include itself in its judgements.
Truth is a tricky thing in its telling. The motto of the criminal defense attorney is that “it’s not whether it’s true, it’s whether it’s believable.” A verdict is a stamp of belief. But the beauty of #MeToo is that it doesn’t matter if this one or that one is true because they all, as all, are all-too believable. And my fantasy of justice is veridiction over verdict.
Vanessa Place is a criminal defense attorney, artist, and author.
*photo credit: Nicholas Alan Cope, 2018