The trial of Harvey Weinstein was an extraordinary one for many reasons – his vast power and influence, his embodiment of the #MeToo movement, the high level of media attention, and the fact that more than 90 women came forward and named him as an abuser. This culminated in a watershed moment this Monday, when a jury found Weinstein guilty of serious sexual offences.
Throughout the trial, the defence had of course questioned whether “genuine victims” would have continued to work with a man who had hurt them. This is a common tactic. Belief in a rape survivors testimony has long turned on ideas about how a “real victim” and a “real perpetrator” behave. It is part of how the defence may undermine a survivor, and suggest her version of events isn’t credible: shouldn’t she have spoken out immediately? How could she continue to work or socialise or live with him? Would a real victim behave like that?
In Weinstein’s trial the prosecution worked hard to counter these questions and to explain power and control, to explain trauma and its varied effects, and to describe the guilt and self-blame women often carry for years. Women do continue to see abusers, appear friendly with them and continue relationships with them, for many complicated reasons.
This may have been made easier for jurors in the Weinstein trial to understand when considering the exorbitant power and influence he wielded in the entertainment industry. And in New York there are evidential rules and the possibility of charging with degrees of rape that do not exist in the UK, allowing the jury to distingush between levels of coercion. Even so, it feels very significant. It feels like perhaps a jury has rejected a defence it might have accepted some time ago. Building and delivering a prosecution case that proactively demolishes victim-blaming myths was key to this.
What does this mean for English and Welsh courts? Rape reporting, charging and prosecution rates for England and Wales are shocking, leading us to talk about current practice as “the effective decriminalisation of rape”. While almost 60,000 reports of rape were made between 2018 and 2019 in England and Wales, this resulted in only 1758 charges by the CPS and of that only 919 convictions. Thousands of women appear to retract their allegation while their case is with the police, and prosecutions of rape by the Crown Prosecution Service (CPS) are the lowest on record. While there was an earlier period of proactive work in the CPS to put real rigour into case building, leading for example to the first big set of child sexual exploitation prosecutions, a Guardian investigation found that the CPS may have gone into reverse as the demand for justice has increased, and may have “raised the bar” on which cases will be charged, in order perhaps to improve the look of their performance data.
This is why the End Violence Against Women coalition is bringing a legal challenge against the CPS for discriminating against women, just as other women had to do when “black-cab rapist”, John Worboys, was set to be paroled. It sometimes feels as though major social battles on issues like consent, equality and respect move forward, and then the systems charged with delivering justice shudder at the implications and call a halt.
The government has recognised the seriousness of the crisis in rape prosecutions and last March commissioned the ongoing rape review which is due to make recommendations this year. It is examining why so many victims apparently drop out at the police stage, and why the CPS charging rate has collapsed. It should also be looking into whether and how jury prejudices create a “negative feedback loop” that drives police and prosecutors to shelve cases for fear a jury will find a complainant “not credible” before her day in court.
The rape review should recommend advocacy and legal support for victims from the day they make their initial complaint; disclosure rules that respect victims’ privacy; and perhaps even some radical solutions for jury prejudices and the way defence is conducted in court. This might stop police and prosecutors shelving cases where there is ongoing contact between accused and complainant, and move us towards what we have seen in the Weinstein case where the jury heard a comprehensive, determined prosecution case that dealt with prejudice-based takes on what a “real victim” should have done.
Three decades ago, a very short time in history, hardly any rapes were prosecuted that weren’t “stranger rapes” and very violent rapes. Women have done the work of exposing the real nature and scale of most rape. Now we need political and justice system leaders to step up and ensure there is a genuine prospect of justice when it is sought.
• Sarah Green is director of the End Violence Against Women coalition