Usually, rape isn’t reported. When it is reported, it is often not charged. And when it is charged, it rarely leads to a conviction. These facts shape both our cultural understanding of sexual violence and women’s sense of their own embodied lives, clarifying something many of us already know – that while sexual violence is technically illegal and officially abhorred, it is also tolerated in practice, with actual arrests and convictions being so rare that most sexual violence is de facto decriminalized.
Only occasionally does a notable rape conviction come to pass; when it does, its very rarity highlights this dissonance, making plain the gulf between how rape is officially talked about and how it is usually treated. Now, that gulf has come to the fore again, because on Thursday one of the most high-profile rape convictions in American history was overturned.
Harvey Weinstein, the Hollywood producer whose name became synonymous with the unchecked sexual violence of powerful men during the height of the #MeToo movement, had his conviction on felony sex crimes charges vacated by New York state’s highest court. This does not mean that Weinstein will be a free man; he has also been convicted of rape and sexual assault in California, and will be transferred to a prison there.
The court’s overturning of his conviction is not an exoneration, either: the judges ruled that Weinstein was entitled to a new trial on procedural grounds, and it is now up to Alvin Bragg, the Manhattan district attorney, to decide whether to retry the sexual predator. I imagine Bragg will be under considerable political pressure to do so.
But the overturning of Weinstein’s conviction was yet another brutal political defeat for the cause of women’s rights, and comes in a post-Dobbs, post-#MeToo era that has been marked by cultural backlash, legal regression and increasingly impassioned popular antifeminist sentiment. His overturned conviction is a symbolic milestone, a marker of the dramatic re-entrenchment of legal and institutional misogyny in our own era, and a reminder of how horribly the feminist ambitions of the late-2010s have been betrayed.
The reversal of Weinstein’s conviction is the latest in a long line of high-profile spectacles of impunity for sexual-violence perpetrators. Despite all the handwringing about due process and disproportionate punishments that emerged from concerned advocates for the accused in that era, the fact is that very few criminal trials emerged from the #MeToo movement.
Those that did have tended to result in favorable outcomes for allegedly abusive men. Bill Cosby, who had a decades-long habit of drugging and raping women, was freed from prison in 2021 when his own criminal conviction was overturned on a technicality. Mario Batali, the celebrity chef who is alleged to have harassed employees at his restaurants and assaulted a number of women at drunken parties after hours, had criminal charges against him dropped at a non-jury trial in 2022.
The #MeToo-era legal deference to high-profile rapists and abusers was part of a much longer trend: in 2008, the singer R Kelly was acquitted on felony charges after filming himself raping an underage girl. By the time of his acquittal, the video of the child’s rape had been circulated widely as entertainment for years.
For all the solemn proclamations during the #MeToo era that a new age had dawned for sexual-violence claims, the truth is that the #MeToo movement did not end the impunity of rapists and abusers so much as highlight how entrenched and tenacious the social forces that create that impunity really are.
Sexual-abuse allegations seem to do little, these days, to slow the ascent of men’s careers: Brett Kavanaugh was appointed to the supreme court after being accused of sexual assault by Christine Blasey Ford and Deborah Ramirez in 2018; he went on to vote to overturn Roe v Wade. Donald Trump was found liable for the sexual assault of the writer E Jean Carroll last year; he went on to handily secure the Republican presidential nomination, and may well be restored to the presidency.
Meanwhile, some abusive men have turned the courts into new tools of their abuse, launching retaliatory lawsuits against women that extend their ability to harass and control them. The washed-up actor Johnny Depp, who in 2020 was found to have abused his ex-wife by a British court, went on to successfully sue her for defamation in a US trial. His victim and target, the actor Amber Heard, had already had to seek a restraining order against him; in the Virginia court, he was able to force her into proximity to him for weeks, and to harness the prurient public interest in the case into a national public harassment and retaliation campaign against her.
Weinstein’s vacated conviction, then, is not an anomaly. But in the #MeToo era, Weinstein’s was supposed to be an exceptional case. For years, Weinstein had become the standard for sexual malfeasance in the post-#MeToo era: he was the avatar of mendacity and misogyny that other men were held to. The very extremity of his example became a kind of exoneration for lesser sex pests and creeps. Of men who merely assaulted or harassed, it was said: “Well, he’s no Harvey Weinstein,” a phrase meant to trivialize their abuse and shield them from punishment. Now, the highest court in the state of New York has said that Weinstein can’t be punished, either.
Perhaps what is most telling about the post-#MeToo persistence of misogynist myths about rape is in the judges’ reasoning itself. Indeed, part of the reason why the New York court of appeals’ decision to overturn Weinstein’s conviction is so humiliatingly hurtful for American women is the rationale on which four of the court’s seven justices based their decision: they said that too many women who said they had been assaulted by Weinstein had been allowed to testify at his criminal trial.
The prosecution had used these women, whose assaults were not at issue in the case, to establish a pattern and a motive for Weinstein’s conduct. It was the same tactic that so many women used in #MeToo, both in the movement writ large and in attempts to expose the violence of individual men. For women taking on the terrifying risk of coming forward about rape, there was supposed to be safety – and credibility – in numbers. But the judges of the majority found the sheer number of Weinstein’s accusers unfair to him; they thought it was excessive, too much.
Never mind that if these women’s accusations had been taken seriously by law enforcement in the first place, they might have been able to have their assaults charged in their own right; never mind that pattern recognition is how we see the world. Such is the way of rape myths: the rules always change on women, and the goalposts for rapists’ punishment always move. Somehow, the ending is always the same.
Moira Donegan is a Guardian US columnist
