When I heard that Harvey Weinstein’s 2020 conviction of rape was overturned last week, I felt a lot of things, but surprise was not one of them. I felt anger, rage, disappointment, and overwhelming sadness for the survivors who were part of this case. I thought a lot about the survivors who have yet to tell anyone about their own assault and the impact this decision could have on them. 

Where is the accountability?

In 2018, during the Supreme Court confirmation hearings for Brett Kavanuagh, I was asked to co-facilitate a forum on a college campus to offer a confidential and supportive space for survivors of sexual violence. Many of the attendees described hearing their friends and family discount Dr. Christine Blasey Ford’s account of sexual violence because, “If it had really happened she would have reported it right away.” I remember a survivor sharing how difficult it was to hear her parent use this sentiment to discredit another survivor when she herself had not told anyone- including this parent- what had happened to her. She had to decide in that moment if she should disclose her own experience to educate her family member and possibly risk a hurtful and disbelieving response. 

We expect survivors to report their assault-and will even shame them if they don’t- and hold them responsible for preventing their perpetrator from assaulting other victims. And yet, time and time again we see examples of the criminal justice system contorting itself to protect abusers and perpetrators of gender-based violence, using the same evidence to relieve them of culpability that they use to hold survivors responsible for their own victimization.

In 2007, a 17 year-old high school student attended a party hosted by the De Anza College baseball team. Later that evening, three women, all soccer players from De Anza college, saw this 17 year-old unconscious and being raped by a group of baseball players. They quickly broke the door down and rescued the girl, getting her lifesaving medical attention. By the time she was admitted to the hospital, her blood alcohol level was in a lethal range. They collected physical evidence from her body that confirmed sexual intercourse. She had no memory of what happened to her. It’s also important to note that in California, the legal age of consent is 18 years-old.

The District Attorney decided not to press any charges claiming that there was insufficient evidence, citing the victim’s lack of memory. The assailants insisted that the sex was consensual- their defense team even claimed she “demanded” they have sex with her. But how can sex be consensual when someone is under the legal age of consent, too intoxicated to move, and has no memory of what happened? Her intoxication was used against her and to protect the people who harmed her. Despite having three reliable eyewitnesses who all stated the victim was unconscious, it was successfully argued that they only saw a short snippet of what happened- because they made the courageous and lifesaving decision to intervene. 

During the coverage of the De Anza rape case and the related civil suit several years later, this survivor had her reputation dragged through the mud. The defense team and others in the community publicly shamed her for past sexual behavior and used this to support the claim that the sex that night was consensual, not rape. This is not unique to this case. I have seen survivors’ past relationships and sexual history used to discredit their accusations countless times. 

Last week a decision was made to overturn Harvey Weinstein’s conviction because too many witnesses were allowed to testify that didn’t pertain to the specifics of the case. Their testimonies were used by the prosecution to establish the pattern of Weinstein’s predatory behavior. The same tacit that has been used to discredit victims was considered a “risky move” by the prosecution and ultimately resulted in the overturning of this case. 

We are told there’s too little evidence, or too much evidence… the rules keep changing but the outcome is the same: a lack of accountability for those who perpetuate gender-based violence. The criminal justice system was not created to protect survivors and too often it upholds imbalances of power that allow perpetrators to harm again and again. 

So, where does accountability live if not in a courtroom?

It lives with all of us. Harvey Weinstein was a known perpetrator long before the lawsuits and criminal trials. Harvey’s predatory behavior was considered an “open secret” in Hollywood. Regardless of the outcome of this legal process, we all now know that he has harmed countless women and that many knew and did nothing. 

Right now, there is a survivor reporting their assault to the authorities. Right now there is a survivor who is holding the secret of what happened to them. Both survivors deserve to be believed and supported. All survivors deserve to be believed and supported. What accountability or justice looks like will vary from survivor to survivor. But all of us have a responsibility to hold individuals and systems accountable when they are causing harm. 

Don’t know how? You don’t have to do it alone. Let’s talk.