Harvey Weinstein and crumbling case for ‘vintage leniency’

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Since last Friday, a tsunami of sexual assault allegations has been levelled at film producer Harvey Weinstein. In case you’re having trouble keeping track,The New York Times who initially broke the story, have compiled a summary.

Since then, a lot of commentary has been written questioning the culture of silence and complicity that allowed Weinstein to get away with this alleged behaviour for so very long.

But I would like to take us back to the original excuses Weinstein and his enablers, namely his now former lawyer Lisa Bloom, initially offered to manage the scandal.

Why? Because they are part of a growing trend of serial sexual predators of a certain age attempting to paint themselves as “retro sexists” to whom “vintage justice” should be applied. And in doing so, they are trying to normalise the idea that there is some “new” – only recently agreed upon – standard in relation to sexual harassment and assault.

As you may recall, in his statement Weinstein said he “came of age in the ’60s and ’70s when all the rules about workplaces and behaviour were different. That was the culture then”. Bloom, Weinstein’s lawyer, later described him as an “old dinosaur learning new ways”. In her statement she said, “I have told him that times have changed, it is 2017, and he needs to evolve to a higher standard.”

But we can’t dismiss these excuses by Weinstein and his enablers as the desperate ramblings of a man backed into a corner, grasping at straws. It is, in fact, part of a calculated game plan.  

It is a strategy that has been used by many sexual predators of a certain vintage, who are trying to gain traction for the idea that there is some “new” and only recently agreed upon standard, and it is, therefore, grossly unfair to hold men of previous eras responsible for actions that, at the time, were simply the norm.

It’s no coincidence that this strategy was initially supported by Bloom, though she has now distanced herself from Weinstein. It saddens me to write this, but she would have seen just how effective it can be when she sat on the other side of the aisle in the Bill Cosby rape trial as a lawyer for one of his accusers, Janice Dickinson. Her mother, the famed women’s rights activist and lawyer Gloria Allred, represented many of Cosby’s other accusers.  

In a New Yorker profile of Bloom’s mother Allred, writer Jia Tolentino observed: “At the Cosby trial, the fact of cultural progress and its attendant backlash felt ever present. I talked to more than a few journalists and casual observers who seemed glad our conception of sexual assault has expanded, but who hesitated to apply the new standard retro-actively … who said things like, ‘he definitely did it, but back then, everyone else did it too’.” 

Deborah Tuerkheimer, a law professor at Northwestern, told Tolentino, “Over the years, there may have been a reluctance to hold Cosby to account for acts that, at the time, didn’t seem like sexual assault. But now, these acts have a different meaning.” 

Here in Australia, Clementine Ford recently drew our attention to the case of Robert John Hall who was convicted of raping a woman at knifepoint in 1990. Despite being found guilty of threatening with a weapon to inflict bodily harm to coerce sex and two counts of sexual intercourse without consent, District Court Judge Peter Whitford sentenced Hall to just five years with a one-year non-parole period.

In explaining the sentence, Judge Whitford acknowledged he was applying a different standard from a different time. He said sentencing must be considered based on “any identified trends and the practice at the relevant time”, while he noted that this did not represent “an appropriate sentence for such offences committed today, or in the more recent past”.

Ford rightly pointed out that victims of historical sex crimes forced to wait decades for an adequate response shouldn’t be further insulted by watching their abusers treated with what she described as “vintage leniency”. 

Now there is a real risk even younger perpetrators will take a page out of this playbook, painting themselves as victims of what I have previously described as the “grey zone”, claiming that since we are only now firming up boundaries around consent, the poor young lads of recent years are victims of misunderstandings.

In her new book about sexual assault on campus in the United States, Blurred Lines: Retthinking Sex, Power, and Consent on Campus, Vanessa Grigoriadis picks up on this theme, writing about the alleged 2012 rape of a Columbia University undergraduate, Emma Sulkowicz, who famously carried a mattress around campus to draw attention to her experience. (A university disciplinary panel found the male student “not responsible”; Sulkowicz settled a Title IX lawsuit against Columbia earlier this year.)

The book argues encounters that would previously have been written off as bad experiences are now being “reclassified as offences that can earn banishment from the Ivory Tower” and this is “one of the greatest cultural shifts to happen on American campuses in decades”. The New Yorker review of the book writes that it is a “complex analysis of sexual assault in this new context”.

My response to these arguments is to ask whether it is really the case that, until recently, the acts of assault and harassment the likes of Bill Cosby, Roger Ailes, Bill O’Reilly and now Harvey Weinstein have been accused of really had a different meaning.

Or is it more likely the case that such behaviours have always had the same meaning (and have been against the law). If you described the alleged actions of Weinstein and co to the average person say 10, 20, or even 30 years ago, would they really have shrugged it off as boys being boys?

What has changed is that we are successfully chipping away at the protective shielding of power and privilege that silenced women and protected perpetrators. 

Be warned sexist “dinosaurs”. Your appeals for vintage justice will no longer win you sympathy, as Weinstein and Bloom have now discovered. With any luck you’ll all soon be extinct.

Kristine Ziwica is a freelance writer based in Melbourne. She has worked at Ms Magazine, the UK’s Equality and Human Rights Commission and Our Watch.

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