Why Harvey Weinstein should not be prosecuted for rape

Harvey Weinstein's defence in his rape case is, predictably, that the sex was consensual. His lawyers have produced evidence of extensive, friendly sounding contacts between him and each of his accusers before and after the alleged rapes - affectionate emails, uncontested sex. Why would the rape victims be friendly with Harvey?

For one thing they needed work, as the trial revealed, which is why Weinstein constantly reminded them of how much power he had in the business they were trying so desperately to break into. And they were afraid. "I wanted him to believe I wasn't a threat," accuser Jessica Mann said. "I was afraid of his unpredictable anger."

Accuser Mimi Haley's fear of Weinstein became so all-encompassing, she swore, that she had sex with him after the alleged assault, even though she didn't want to, not even understanding that could be considered rape.

Commentators speculate about whether rape law, with its focus on an unforgiving concept of consent and the inevitable consideration of one accusation at a time, can accommodate the messy reality of hope and fear the Weinstein rape case reveals. As Tania Tetlow, a former federal prosecutor and the president of Loyola University New Orleans, put it in the Atlantic, "Getting a conviction for rape is a long shot - and a nightmare."

Rape law has its roots in a concept of female purity ill-suited to today's reality. (For years, English law punished the rape of a virgin much more harshly than a nonvirgin. Later, ancient requirements of virginity evolved into the legal requirement of chastity and modesty.) It expects women to avoid situations of sexual risk, fight back and complain immediately.

But "rape" needn't be the only way to find a serial abuser criminally liable. There is another body of law that is, in many ways, a better fit: extortion.

Definition of extortion

Under New York law, a person commits extortion when "he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor . . . will . . . Perform any . . . act . . . calculated to harm another person materially with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships." Most criminal charges must be brought within two to five years, but payoffs are not limited to money, courts have said.

Weinstein has already confessed to this sort of thing. When he got to be a "somebody in Hollywood," he said in an amazingly frank interview during the early #MeToo days, "I did offer them acting jobs in exchange for sex."

Courts have interpreted the "harm" in extortion to include denial of job opportunities unless payoffs are made, and the fear is in the eye of the victim. New York also criminalises the lesser offense of "coercion," including compelling or inducing a person "to engage in conduct which the latter has a legal right to abstain from engaging in" by threatening their "career." Or as Weinstein would say: Nice little acting career you got there. Too bad if nothing came of it.

The thing about #MeToo...

Extortion and coercion may be better legal devices for the #MeToo movement, which is not only about individuals like Weinstein but almost always involves a social system. In Weinstein's profession, entertainment moguls and their enablers, assistants, talent agents, human resources departments were all implicated. Almost none of the boldfaced names could have acted alone.

This pattern appears constantly in the reporting and court filings concerning Roger Ailes, Bill O'Reilly, Charlie Rose, Les Moonves, Matt Lauer, Amazon Studios executive Roy Price, Peter Martins, Plcido Domingo. Prosecuting Weinstein for extortion exposes the whole rotten system, widening the shot to the social structures that support and protect those men. An extortion prosecution would serve one of law's core purposes: deterrence. Just think about the chilling effect of sending Weinstein to jail for even a year for demanding sex for auditions and threatening an aspiring actress's career.

And #MeToo is about a universe of "girls," as Weinstein puts it, who wouldn't give those men a second look if they weren't holding their futures hostage. (Weinstein calls himself "ugly" and says "[N]o girl [would] look" at him.) Focusing on the efforts of the victims to protect their careers in entertainment - as defence lawyer Donna Rotunno did when she actually accused aspiring actress Jessica Mann of "manipulating Weinstein" - respects them as thinking beings with normal human hopes and fears. The real story is not pure, but it's true.

Long before rape law was even considered in the context of the jobs-for-sex scenario Weinstein describes, women won an interpretation of the 1964 Civil Rights Act to protect them against sexual harassment on the job. There are dozens of civil sex discrimination cases pending against Weinstein for the same behavior as the criminal case.

The employees suing Weinstein civilly for sex harassment don't face the consent defence. The landmark Supreme Court opinion that recognised the action for sexual harassment rejected that argument outright in 1986. A desperate employee might give in to her boss's importuning to keep her job, as she did in that case, the court ruled. But that doesn't mean she welcomed his abuse. The standard in sex harassment cases is welcomeness, not consent. (Weinstein has reportedly offered $25 million in settlement in those cases.)

Even if the women are not desperate, they care about their work. Instead of the prosecution presenting witnesses like Mann as naive country girls shocked to find a Hollywood producer with his pants down, Weinstein's victims could be respected for their ambition to be successful, for their burning desire to protect their art, for their willingness to do anything for their work. It should not be shocking that some women want to make their mark.