All last week and moving on to this one, potential jurors have filed into a Manhattan courtroom, batches of 120 at a time, to determine whether they might be fit to judge Harvey Weinstein.
And so, after several pages inquiring after spouses and kids and jobs, and spouses’ and kids’ jobs, we land on Question 57 at the top of Page 12: “Have you, a family member or a close friend ever been the victim of sexual abuse, either as a child or an adult?” Followed by: “If YES, please explain.”
It’s common practice in all kinds of cases for attorneys to suss out whether painful personal histories might complicate jurors’ ability to impartially serve. But Question 57 raises an obvious question without an obvious answer: Should a person with intimate experience of sexual assault be tasked with judging a man like Harvey Weinstein?
On Wednesday, a series of women didn’t wait to be dismissed based on their answers; they dismissed themselves. “I was assaulted in my past, so I don’t think I can be a fair juror,” one woman told the judge. “It’s going to be very hard for someone who’s been assaulted multiple times,” said another. A third revealed that not only did she have a friend who had allegedly been the victim of something bad, but that friend’s “encounter” had been with Harvey Weinstein.
There are two issues here: The first is whether an assault victim feels emotionally prepared to serve on a jury. The second is whether she or he can be “fair.” No juror should ever be forced to serve on a case that will uniquely traumatize her. No defendant should have his fate decided by a panel uniquely primed to hate him — just as an arsonist probably should not face off against 12 residents of the apartment building he burned down.
But, bizarrely, some people now appear to see alleged victims of sexual assault as the ones starting the fires. Legal experts inundated cable news this week with speculation that Weinstein’s attorneys should look out for “secret #MeToo activists,” as if #MeToo were a radical ideology held by a small group of match-wielding saboteurs, rather than what it actually was: a blaring siren, made of the voices of stars and strangers and friends and family members, announcing that the flames are already everywhere around you. Can’t you smell the smoke?
#MeToo was a wake-up to those who weren’t paying attention. It was an invitation for everyone to revisit their answer to Question 57.
At this point, if you, a family member or a friend has never been the victim of sexual abuse — phrasing that could encompass everything from subway groping to a spiked drink at a bar — are you an impartial juror? Or are you just really freaking lucky?
And what does your good luck have to do with justice?
Who we want on a jury comes down to what we believe is “bias,” and what we believe is “perspective.” And on who we believe is a victim with experiences that have poisoned his or her worldview, vs. who we believe is just a human, with human experiences that might be revelatory on a jury.
Cases involving sexual assault are notoriously trickier than those involving other crimes. According to statistics compiled by the Rape, Abuse & Incest National Network, sexual assaults are four times less likely to result in felony convictions than robberies, eight times less likely than nonsexual assaults. That’s partly because in sexual assault cases, the victim is often on trial as much as the alleged perpetrator: But what were you wearing? Why did you go to his room? Why were your texts with him afterward so polite?
If you presume to know how a robbery victim should behave on the stand, you’re probably correct — they’ll behave as if they want their stuff back. If you presume to know how a rape victim should behave, you’re just as likely to be completely wrong. Because rape victims might cry, or they might be defiant. They might have tried to fight off their attacker, or they might have tried to placate him, or they might have just frozen.
Truly, nobody understands how they might behave during (or after) an attack until they personally are attacked, or a loved one is. Does it make any sense that we’d aim to fill a jury only with people whose sense of victimhood is based on a weekend marathon of “Law & Order: SVU”? Naivete, after all, is its own kind of bias.
Last year, one member of British Parliament made the controversial proposal that juries should be done away with in rape trials entirely. “Research shows that stereotypes about how rape victims are expected to behave remain prevalent in society — and by extension, in juries,” said Ann Coffey, raising the possibility that such trials were better left to professional legal minds.
Meanwhile, Weinstein’s attorney Donna Rotunno perversely offered, in a Vanity Fair profile, that she’d welcome assault victims onto Weinstein’s jury: “I think a woman who is a victim of rape is going to look at [the accuser’s behavior] and say, ‘That’s not what rape victims do. In this case, I almost think somebody who is a real victim of rape might not be a bad juror.”
If you mentally erase the parts of that sentence that make steam come out of your ears, it’s possible to salvage a useful statement: No, rape victims are not “bad jurors.” They have wisdom that comes from experience, not assumptions about how people do or should behave when they’re being wronged in a uniquely horrible way.
That doesn’t make them biased. It just means they have perspective.
Monica Hesse is a columnist writing about gender and its impact on society. For more visit wapo.st/hesse.