Featured image drawn by Media Editor Evelyn Ward ’21
The Threshold of Believability for Women in Assault Cases is not Defined by Evidence but Identity
The courtroom was eerily quiet on Mar. 11, 2020. The shuttering of cameras and the wail of sirens were muffled behind the thick doors of the Manhattan Supreme Court. This was the fifth consecutive day of deliberations in the criminal case against Harvey Weinstein who had been charged with third-degree rape, first-degree sexual assault, and two counts of predatory sexual assault. Testifying were Jessica Mann, Annabelle Sciorra, Mimi Haleyi, Dawn Dunning, Tarale Wulff, and Lauren Young, a group of women hand-selected by the Manhattan District Attorney’s Office to testify against one of the most powerful men in Hollywood, a titan of the film industry for decades. These women were not the first nor the last to accuse Weinstein of sexual assault. They were also not the only women willing to speak publicly. What these women did have in common was that they are predominantly white and upper-middle class.
It is the attorney’s job to select witnesses that have the highest chance of being believed by the jury. But what characteristics make a person believable in the eyes of strangers? And more importantly, what happens to those who fall outside of those categories? Who hears their stories? What becomes of the justice owed to them?
At the center of this trial sat Harvey Weinstein, who, along with his brother, launched the industry-transforming Miramax Films Corporation in 1979. There was no one more powerful in Hollywood than Weinstein, who produced over 200 films and was awarded a staggering 81 Oscars during his twenty-seven-year reign. But beneath the millions of dollars, whispers of sexual assault allegations against Weinstein eventually found their way into the executive offices of the Weinstein Company. Yet, no actions were taken and Weinstein faced no consequences.
Then, on Oct. 5, 2017, Jodi Kantor and Megan Twohey of The New York Times broke the story of Weinstein’s decades-long abuse and efforts to silence his victims by use of settlements, non-disclosure agreements, and threats to their careers and reputations. The article they wrote established a platform for the voices of numerous Weinstein survivors, some of whom remained anonymous. The stories were disquietingly similar: Weinstein would invite women inside his hotel room to conduct business and then appear unexpectedly naked and request a massage, assuring the aspiring stars that many successful women had done the same and threatening them that if they didn’t cooperate their careers would be over.
The response to The New York Times article was swift. Just three days after the article was published, Weinstein was fired by the board of his company. Additionally, on Oct. 10, The New Yorker published a lengthy article by Ronan Farrow, which eventually won the Pulitzer Prize, detailing the experiences of thirteen more women who were willing to come forward with their accounts of abuse.
With that, control started to spiral away from Weinstein’s iron grip as dozens of women, including celebrities such as Angelina Jolie, Cara Delevingne, and Gwyneth Paltrow came forward and offered their own experiences to support the testimonies of others. The outcries mounted until they reached a zenith on May 31, 2018, when the New York grand jury indicted Weinstein.
This is not the first time a man in power has used his position to abuse and silence women. Too often, men in power dictate what women can and cannot do with their bodies. Weinstein was encased in a protective bubble of enablers who allowed him to continue to harm women for years. The fact that Weinstein was protected for so long underscores that it’s not just one man who must be held accountable, it is a system that undervalues and permits the abuse of women’s bodies.
When the race of the woman enters the equation we see that obtaining justice for those who are not white or wealthy looks a lot less certain. When a woman is rich and white, her story is given far more attention and more veracity is placed on her perspective.
To underline this disparity, consider Nafissatou Diallo’s case. Diallo is a black woman who worked as a cleaner at the Sofitel Hotel and was, on May 14, 2011, allegedly attacked by Dominique Strauss-Kahn, the French Minister of the Economy and next-in-line for the French presidency. According to Diallo, he tried to force her to perform oral sex on him and attempted to rape her. After four months of legal battles in the Supreme Court, the judge officially dismissed all charges against Strauss-Kahn following a recommendation filed by the District Attorney’s Office of Manhattan, which asserted that “[Diallo’s] untruthfulness made it impossible to credit her.” Strauss-Kahn’s private investigators had done some digging and found some unsavory details about her past. Diallo had also failed to disclose that she had been subject to genital mutilation and an instance of gang rape. In essence, Strauss-Kahn’s lawyers submitted evidence suggesting that previous victimization discredited Diallo. It worked.
In this case, Diallo’s identity as a lower-class West-African immigrant was held against her. Diallo filed a police report and took action immediately after she was assaulted by Strauss-Kahn. Semen that was proven to belong to Strauss-Kahn was found on her shirt. The medical report by doctors, who examined her after the alleged incident, discovered injuries consistent with assault and rape. The evidence was clear, but she did not have a movement behind her. She did not fit the archetype for a woman who is sexually assaulted and then believed.
Douglas Wigdor, Diallo’s attorney who also represented Tarale Wulff in the Weinstein trial, stated that he felt that the “[Strauss-Kahn case] was a much stronger case…than the Weinstein case.” He also said that the Manhattan District Attorney’s office should have continued to prosecute:
“A lot has changed from 2011 to 2019 from the MeToo movement. With the same DA and Prosecutors [as the DSK case], they took a chance in the Weinstein case because they knew people’s attitudes had changed. They understood that women who are sexually assaulted often stay in touch with the person who assaulted them…My client was a black woman from Western Africa and I’ve always said if she was a white woman from the Upper East Side, then I think they would’ve tried that case.”Douglas Wigdor
By contrast, the Weinstein cases were riddled with complications and lacked evidence. For instance, many women remained in contact with Weinstein long after the assaults had taken place out of fear that their careers in the media industry would be derailed. Unlike Diallo, a majority did not subject themselves to rape kits at the time of the assault. When these women eventually spoke up, what they were truly depending on was not the strength of their cases but the momentum of the MeToo movement.
Though the Weinstein trial occurred during a time of immense public pressure, the ways in which each woman was treated, as Wigdor explained, hinges on a lot more than public outcry. Society’s collective idea of what a woman who has been sexually assaulted looks like plays a large part in perceived believability by a judge, a jury, and by society as a whole.
According to a report by the Georgetown Law Center, “adults view black girls as less innocent and more adult-like than their white peers.” Black girls are seen as more educated about reproductive health, more autonomous, and, consequently, in need of less protection. In essence, black women are rarely seen as victims, perpetuating a history of diminishing their pain and denying their trauma. Their stories are often dismissed before they even reach the courts.
On October 15, 2017, actress Alyssa Milano tweeted, “If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet.” The hashtag was retweeted in over twelve million posts in just twenty-four hours, kickstarting a movement that felt new and powerful to many women across the world. But it was not so revolutionary to other women, including one named Tarana Burke. In an interview with The New York Times, Burke remembered of the moment, “I felt a sense of dread because something that was part of my life’s work was going to be co-opted and taken from me and used for a purpose that I hadn’t originally intended.” To better understand Burke’s fears of her work being co-opted, one must first understand how the MeToo movement came to be.
Burke, a black female activist, founded Just Be Inc. in 2007 to empower and foster the growth of black girls. She hoped to “guide young women of color in their process of self-discovery” and “find the tools necessary to be empowered past their ‘risk’ and around their circumstances in order to set or reset the trajectory of their lives.” Burke gave the movement she was instigating a name, MeToo, thereby committing herself to be an advocate for young women of color. Burke never intended for MeToo to become the battle cry used to achieve justice for white women. She had conceived the hashtag to call attention to the “health, well-being and wholeness” of young black girls.
Though Milano did eventually publicly credit Burke for her contribution to the MeToo movement, this is not the first time the work of a black woman has been appropriated by a white audience. History is replete with examples: Rosetta Tharpe was one of the first people to combine gospel music with melody-driven blues which inspired the likes of Elvis Presley; Alice Agusta Ball invented a cure for leprosy and her white male professor took credit, and a more current example is when Jalaiah Harmon invented the TikTok dance “Renegade” which only went viral when white creators posted it on their accounts.
Not only is there a history of erasing the cultural contributions of black women, but also a legacy of black women being believed less than their white counterparts. According to the National Center for Victims of Crime, about 22% of black women in the US experience rape in their lifetime compared to 17.6% of white women. Additionally, the rate at which black women endure domestic abuse is 30-50% higher than what is experienced by white, Hispanic, and Asian women. Despite this fact, when black women are abused, they are much less likely to receive support, advocacy, or justice.
Who receives justice in America comes down to who is believable in the eyes of the court. When Diallo gathered her courage and her savings to fight to protect her body and her rights, she was deemed untrustworthy. Even when a wealthy woman of color is abused, as was Rihanna by Chris Brown in 2009, the court of social media decided that she must have done something to deserve the assault. In both cases, these decisions transcended physical evidence. When Tarana Burke founded the MeToo movement, it wasn’t until a famous white woman popularized and, essentially, validated the movement on her social media platform that it gained traction.
While the demise of a predator such as Harvey Weinstein is always going to capture the public eye, we must turn our attention inward, examining how our cultural biases shine light on some voices while others continue to suffer in the dark. For there can never truly be justice in America until the story of every woman who has been abused, regardless of her background or skin color, is considered a story worth hearing, a story worth believing.