Suzanne B. Goldberg is a professor at Columbia Law School and co-director of Columbia’s Center for Gender & Sexuality Law.
This is not to diminish the profound changes that have occurred. Just a few years ago, it was unimaginable that this powerful film producer would face sexual assault charges in two states and a mountain of public accusations by women around the world. Bill Cosby and Larry Nassar, the former USA Gymnastics team doctor, are in jail. R. Kelly has been indicted on multiple sexual abuse charges (though he denies them). Longtime CBS chief executive Les Moonves was fired following a dozen sexual harassment and assault allegations (which he also denies), and two federal judges have resigned their lifetime posts. #MeToo timelines show an A-list roster of other famous men who have admitted to sexually abusive behavior and many more who face credible accusations.
But Weinstein’s trial and all the other changes #MeToo has brought won’t put an end to the roiling debates about what counts as consent and how we should judge long-ago assaults. We’ll continue to disagree, too, about what legal and social sanctions should apply to conduct that is “bad but not as bad” as Weinstein’s.
This is a good thing. As uncomfortable and frustrating as these conversations can be, we cannot afford to stop talking about what we expect from each other when it comes to sex and to workplace interactions. Whatever one thinks about the precise contours of consent, thousands of people have now shared their stories of sexual harassment and assault, and it is simply implausible that they are all delusional or lying.
This outpouring of experiences prompts an even more basic question: Why have we done so little to stop sexual harassment and assault in our individual communities and as a nation, and what should we do now? Or, in terms of Hollywood, how could so many people stand by when “everyone knew” something was wrong, whether or not they thought the behavior was criminal?
This reckoning with ourselves is, or should be, one of the enduring legacies of Harvey Weinstein. We ought to take a hard look, for example, at the truth-seeking function of the criminal process and ask ourselves whether cross-examinations of victims that tap into sexual assault myths — “She couldn’t have been raped because she stayed friendly with him” or “She was using him just as much as he was using her” — are barriers to justice.
Nondisclosure agreements have already come under fire for insulating repeat offenders such as Roger Ailes of Fox News, who resolved many complaints by paying women in exchange for silence. At least 16 states now impose some restrictions on NDAs, and a growing number of large employers give harassed employees more control over whether to sign one, though gaps in these protections leave plenty of room for history to repeat itself.
But if we reckon only with criminal verdicts and civil lawsuits, we miss the point that most sexual harassment and assault will never be the subject of a formal complaint, much less a lawsuit or a criminal indictment. We live in a world where stigma and shame about being sexually assaulted and harassed remains strong, and fears about what will happen to those who complain are real, as a recent study on campus sexual assault and the Equal Employment Opportunity Commission’s report on workplace harassment make clear.
It may sound surprising in the wake of Weinstein’s trial, but the solution is not primarily putting perpetrators in jail or firing all harassers — though holding perpetrators accountable is important, as is ensuring that district attorneys and corporations do not duck responsibility when allegations are made against someone powerful or famous. Nor will “don’t harass or assault people” trainings likely prompt much behavior change, though they absolutely have a place in reinforcing institutional policies and the consequences for violating them.
Instead, the most important thing we can do is correct the cultural failures that are endemic to the sexual interactions of Weinstein, his cohort and so many others whose abusive behavior will never be national news. A much-watched cartoon on consent, portrayed in terms of drinking tea, makes this point: Why would you force a person to drink a cup of tea that they don’t seem to want? And if you’re not sure if they want it, why would you keep pouring rather than stopping to ask?
In other words, as social media inevitably rages over whether Weinstein’s jury got it right, we are doomed to repeat this story unless we take the steps — in education, workplace equity and otherwise — to change at a more fundamental level what we expect from each other.
Alyssa Rosenberg: People told the truth about Harvey Weinstein in 2004 and 2010. Why weren’t they heard?