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Had Harvey Weinstein – renowned film producer, multimillionaire, friend to Washington hotshots and Hollywood stars – been just a regular schlub named “Harvey,” who drove a Volvo, ate too much fast food and had a problem keeping it in his pants, there’s a reasonable chance New York prosecutors, if confronted with the same set of circumstances, would have never allowed the case to see a courtroom.

Securing a conviction against Mr. Weinstein relied almost exclusively on the testimony of just two women who accused him of rape and sexual assault. The prosecution’s case did include what are known as Molineux witnesses, who testified about their own experiences with Mr. Weinstein to establish a pattern of behaviour. But if there was any reasonable shot at a conviction, the jury needed to believe the testimony of Miriam Haley and Jessica Mann. And both women, to the defence’s delight and prosecution’s dismay, were deeply imperfect victims.

Ms. Haley claimed that Mr. Weinstein forcibly performed oral sex on her in his apartment in 2006. She nevertheless kept in contact with him after the assault, occasionally seeking him out, which led to another encounter during which the two had sex. That time, Ms. Haley testified, she “didn’t physically resist.”

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Harvey Weinstein's conviction shows our collective understanding of consent and sexual assault might be genuinely changing, Robyn Urback writes.


Ms. Mann’s relationship with Mr. Weinstein was even more complicated. She testified he also forcibly performed oral sex on her sometime in 2013, but then, a few weeks later, he raped her in a Manhattan hotel room. But Ms. Mann, like Ms. Haley, didn’t cut off contact. Instead, the two maintained a sexual relationship for years, during which time Ms. Mann sent Mr. Weinstein friendly e-mails and even suggested that he meet her mom. It was not, in other words, the behaviour one may think a rape victim would exhibit toward her abuser.

That’s what made prosecution so risky, and potentially would have made it a non-starter had this been a case of sexual assault involving a regular creep named Harvey. In any other courtroom, with a similar dearth of evidence and such complicated relationships between victims and the accused, there might have seemed too little reasonable prospect of conviction. But this was no regular Harvey: this was “the” Harvey Weinstein – Hollywood power broker, alleged sexual miscreant to at least 80 women and unwitting catalyst of the #MeToo movement. Prosecutors practically had no choice but to give it their best shot, flawed victim narratives and all.

The prosecution’s task was to persuade members of the jury to disregard what they thought they knew about how victims of sexual assault behave. That’s a big ask for any jury, especially considering there are men and women on the bench who still rely on myths about victim behaviour when making their decisions. Ontario Court Justice Peter Wright, who acquitted Richard Lacombe of two counts of sexual assault citing the complainant’s clothing and behaviour, is just one recent example.

Forensic psychiatrist Barbara Ziv testified for the prosecution in the Weinstein case, noting that victims who are sexually abused by someone they know often maintain relationships with the perpetrators. “Most individuals think, ‘I can put it behind me and move on with my life and put it in a box,’ ” she said.

“They can’t really believe that this has happened to them … they’re hoping that this is just an aberration,” she added.

It was anything but certain that the seven men and five women on the jury would accept Dr. Ziv’s testimony and the idea that Mr. Weinstein’s victims would maintain a relationship with him after a sexual assault – that consensual sex and sexual assault can co-exist in one bizarre, dysfunctional, often abusive relationship. But they did, and found Mr. Weinstein guilty of criminal sexual assault and rape in the third degree.

Some have cited this conviction as a sign that the powerful will finally be held to account in the post-#MeToo era. But truthfully, that sign came years ago, back when Mr. Weinstein lost his company, his wife, his friends and his reputation. Benefit of the doubt tends to fade when the number of accusers could fill a symphony orchestra, after all.

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What this conviction does show, however, is that our collective understanding of consent and sexual assault may be genuinely changing; that a jury of 12 random people can come to appreciate that there isn’t one “correct” standard of behaviour for victims of assault. The effect could be that prosecutors become more willing to pursue difficult charges against the regular Harveys, as well as the Harvey Weinsteins, thanks largely to the unlikely conviction secured in this case. That would be a tangible, radical #MeToo win.

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