Putting the Weinstein verdict into perspective

Shortly after the jury returned its mixed verdict in the Harvey Weinstein sexual assault trial, Manhattan District Attorney Cy Vance Jr., who’s been criticized in the past for being slow to take up cases of workplace and white-collar sexual assault, exultantly declared that the case had “changed the course of history in the fight against sexual violence.”         

Unfortunately, it will take more than Cy Vance, more than all the prosecutors in the country developing the backbone to stand up to the wealthy and powerful perpetrators, and more than trials alone to change the course of a legal system that institutionally encourages the abuse of vulnerable women, inhibits the reporting of sexual assaults, and then impugns the integrity of those who work up the resolve to report. 

Even if a rape survivor was magically guaranteed that her assailant would be convicted if she went to the police, the humiliating and universal ordeal that Weinstein’s victims underwent at the hands of defense attorneys makes the decision on whether or not to report the crime a “Sophie’s choice.” Rape shield laws have placed various limits on defense counsel’s vilification of the victim, but the practice lives on.

And if and when a victim eventually reports, rape law places a unique barrier in her path. Reports that aren’t promptly submitted have traditionally been presumed to be unreliable and were often held as inadmissible. As one court put it, “A disclosure in a case of rape has no legal value whatever unless it is the natural result of the horror and sense of wrong which would prompt every virtuous female to make outcry at the first suitable opportunity.” While courts have been backing off the presumption, defense counsel has, quite naturally, stepped into the breach, equating delay with fabrication and ulterior motives. The victim thus is ensnared in a catch-22: the system generates the very delays that it then punishes.

But the biggest problem with Mr. Vance’s proclamation that the course of history has instantly changed is the manner in which the legal system gives a green light to the Weinsteins of the world to leave countless victims in their wake. In explaining the choice of so many survivors to suffer in silence, the ordeal that victims would face at trial is just the tip of the iceberg. The legal system provides the perfect tool for men of wealth and position to gag their victims through the payment of cash backed up by the promise of retaliation if they don’t play along. In fact, formally known as a non-disclosure agreement, or NDA, the device is commonly called a “gagging clause.”

Non-disclosure agreements certainly have their place in law, as when an employee agrees not to reveal a company’s trade secrets. The best way to navigate through the mess would seem to be the prohibition of NDAs designed to sweep sexual abuse under the rug. Although several states have banned NDAs designed to conceal sexual assault or deem such agreements to be unenforceable, the vast majority of states have left them intact.

Additional legislative proposals to ban such NDAs have encountered significant resistance. A principal objection is that they provide quick and certain compensation that protracted legal action would not. The problem here is that they also enable well-heeled sexual predators lurking beneath NDAs to operate with impunity for decades.

Another objection is that victims who seek to retain their privacy would be harmed by the ban. The trouble with this point is that media outlets have a long-standing policy of maintaining the confidentiality of vulnerable victims whose assailants are tried.

NDAs are just one of a shameful list of obstacles the law has placed in the path of sexual assault survivors seeking justice. Reflecting a clear distrust of women’s honesty, rape at common law was the only crime requiring corroboration above and beyond the victim’s testimony. In addition, she was deemed to have given her consent if, despite the fact that it might have placed her life in danger, she had not “resisted to the utmost.” And, of course, there must have been a prompt outcry lest she trigger the misogynistic stereotype that her case is falsified.             

The day predominantly male state legislatures develop the backbone and sensitivity to ban NDAs that cover up sexual abuse and lay infinite traps for future assaults is the day Mr. Vance can truly tell us the that course of history in the fight against sexual violence has changed.

Jay Sterling Silver is a law professor at St. Thomas University School of Law. His commentary has appeared in The New York Times, The Washington Post, and other national and local media.