As I have previously argued at some length, moral ignominy does not fall within the purview of legal jurisprudence, and personal allegations do not constitute evidentiary certitude. Because a man is a scoundrel with predatory inclinations does not mean we have license to clap him in irons. It means we avoid him like the plague. It means we do not succumb to his blandishments. It means we refuse to accept the gifts and advantages he offers in exchange for our surrender to his wiles and demands. It means, as the theological lore has it, that we do not sell our souls to the devil — or, in Harvey Weinstein’s case, our bodies as well.
It also means that in a court of blind justice deriving from Magna Carta and established over a long evolution, predicated on the concept of “beyond a reasonable doubt” and grounded on factual evidence, Weinstein could not have been found guilty. What we have is a narrative of the acts and machinations of an obviously despicable person; hearsay, revelation, memory, tearful indignation and sundry testimonials do not constitute tangible and objective evidence. Criminal guilt cannot be established on the basis of the statements of the plaintiffs.
In addition, when one reckons that those who claim to have been assaulted or raped by Weinstein did not go to the police immediately after their ordeal when forensic evidence was fresh and may still have been gathered, and that many of these plaintiffs continued to seek out Weinstein’s company with letters of affection and adulation years after the events in question, the issue begins to grow clouded.
As The Washington Free Beacon reports in considerable detail, these prodigies of adoration were legion and, for that matter, were not confined only to women. Men also liked to flaunt their brotherly admiration for their great friend and benefactor. They too have conveniently joined the chorus of denunciation against their former patron and promoter, or have tactfully remained silent.
But in a culture obsessed with sex and the myth of female guilelessness, it is the women who are regarded as oracles. Their charges resonate in the courtroom, yet these consist of circumstantial depositions that are seriously compromised. Moreover, multiple attestations and what is called similar fact evidence (or “criminal propensity” arguments) provided by corroborative witnesses who are not part of the actual criminal case are, at best, only differentially admissible and do not rise to the level of “beyond a reasonable doubt.” Indeed, “similar fact” (sometimes known as “similar act”) remains controversial and is highly problematic. Spencer v. Texas (1967) established that such evidence “would violate the Due Process Clause.”
The Weinstein trial included powerful stories, and the number of accusers is overwhelming. But stories and numbers do not add up to hard, incontrovertible evidence, especially when all the countervailing factors are taken into consideration — and there are many such factors.
For one thing, there was the question of the novelist juror whose website described her book as an account of young women and “predatory older men,” but who, despite lying about the subject of her novel, somehow made it through the voir dire examination when she should obviously have been stricken from the rolls. As Andrew McCarthy explains, “The trial judge denied the defense’s motion to remove her for cause” — a curious blunder. It gets worse. The judge did not order the jury sequestered. This was a serious lapse, for the jury could conceivably have been influenced by the inflammatory and prejudicial “carnival atmosphere” — to cite the 1966 Supreme Court ruling for acquittal in Sheppard v. Maxwell — orchestrated by the media’s lurid campaign to have Weinstein convicted. I do not see how the judge, the Honorable James Burke, could have been unaware of so clear a legal precedent.
For another thing, Weinstein had accomplices — and the accomplices were the very people who sought his favors and his friendship despite the criminal acts which they allege Weinstein to have committed. No psychological theory of traumatic innocence routinely espoused by feminists can launder such behavior unless we are dealing with infantile minds utterly devoid of moral agency. If Weinstein is guilty, so are his accusers who by their ongoing actions — and lack of consequent reactions — are equally complicit in allowing such criminality to persist, from which others would likely suffer in the future. Participation equals facilitation.
Weinstein’s “casting couch” depredations were apparently common knowledge, but no one seemed very upset. If women sought his company, if they went to his hotel room, if they did not report his outrages, then they were in effect a willing part of the whole disreputable affair. If Weinstein was a perpetrator, they were enablers. They were under no compulsion or violent coercion to traffic with him. Those who decided to sleep their way to the top or to keep silent for fear of jeopardizing their careers must take responsibility for their decision or subsequent omertà and acknowledge their complicity. Justice cannot be sectorial.
Further, as noted, numbers are not dispositive. Ninety women have accused Weinstein of, variously, sexual misconduct, harassment and rape, corroborative confirmation of Weinstein’s malfeasance. Color me unimpressed. Mass hysteria is a known historical phenomenon. One recalls the Satanic ritual panic that swept the U.S. and Canada in the 1980s. Large numbers of suggestible children were alleged to have been the victims of sexual abuse by a powerful cult of pederasts, as a result on which innocent people were severely punished with lengthy prison sentences. Lives were ruined. How could children lie so convincingly and in such myriads? Today we would gather in solidarity under the auspices of #Believe the Children. It took years before the scare was discredited as a mass hallucination.
As Janice Fiamengo points out in a Fiamengo File video on the subject of feminist mass hysteria, “it seems that our current preoccupation with all manner of sexual abuse shares some characteristics of other episodes of mass hysteria.” She cites the 2012 episode in LeRoy, New York “where fourteen teenaged girls and one boy suddenly began exhibiting Tourette’s-like symptoms” and the 1944 case in a small Illinois town “in which female residents thought they were being poisoned by a gas that caused their throat and lips to burn — though no gas was ever found and their symptoms went away when they talked to police.” And who could forget Anita Hill’s accusing Supreme Court nominee Clarence Thomas in 1991 of sexual harassment though “Hill kept in close contact with Thomas for years after the incidents were supposed to have taken place.” And this is how it goes, Fiamengo concludes, one episode or incident leading to many others. Mobbing is contagious in our feminist age. The fetid sewer of nasty, ignorant and scurrilous commentary invectives against Weinstein’s decent and talented lawyer Donna Rotunno speaks volumes.
One thinks, too, of the blood libel against the Jews earnestly attested to by millions of people across the ages, dating from the conspiracy started by the Egyptian-Greek sophist Apion in the first century A.D. and still going on, in one form or another, to this very day. (To see how such conspiracy-mongering works, read Josephus’s historic account, Against Apion. Self-justified hatred, self-righteous posturing and deep insecurity are great motivators.)
Naturally, many people will be happy to see Weinstein punished, including conservatives for whom Weinstein was just another Hollywood leftist helping to bankroll the Democrats. There is rejoicing that he will face further charges in Los Angeles. This kind of schadenfreude is unfortunate since the significant issue involves not only the individual but the principle of due process, the failure of which could eventually impact any one of us, regardless of innocence. We need to realize that Weinstein may be a sinner, a profiteer, a Lothario, a moral monster and a brute but he is not a legal felon. He may be guilty in his soul but he is not guilty in law. Those of us who jubilate over the result of a highly suspect trial procedure are opening ourselves to the rapine of a manifestly flawed judicial system: judges who may be worried about possible recall should they run afoul of the public consensus, as happened to Aaron Persky in the Brock Turner case; the insidious effect of media feeding frenzy; factually uncorroborated accusations of absolute guilt; “similar fact” attestations; the proliferation of unhinged hysterics and the fevered baying of vigilante mobs on social media. None of us are safe. Would we remember Harvey Weinstein then?
We might also ask ourselves: Who or what is Weinstein? He is Hollywood, a representative of one of the sleaziest communities on the face of the earth, comprising a bunch of grasping, invidious, self-infatuated and morally corrupt people, many in cahoots with the man they have now turned against. Meryl Streep’s “god” is now the spawn of hell. It is Hollywood that has been essentially indicted. Regrettably, you can’t put Hollywood on trial. But perhaps we should let everyone off the hook and lay the blame on the stars, not the Hollywood but the heavenly sort.
Eric Coppolino, an expert in astrology and formerly a syndicated columnist, claims that we are living in a time in which “there is a lot of action in Capricorn…including the Saturn-Pluto conjunction, which is about investment capital, as well as family secrets and certain sexual matters…So on the surface we have an event about a rape trial… There was so much money riding on Weinstein and his business…that a vast corporate structure protected and facilitated his actions…This is the big Silver Screen of Hollywood, the illusion of cinema [entailing] the esoteric sense of a glamour (a spell) and the worldly sense of glamor (looking alluring on the red carpet, and young girls wanting to be movie actresses)…Individuals were in for individual payout; the concerns and corporations were in it for shareholder profit.” This is what happens, apparently, when “Moon, Neptune, Pisces are all up in the 10th house of aspiration and reputation.” Ipse dixit.
Whether or not one believes in the fateful decrees of the stars and planets is beside the point. (For the record, I don’t.) But Coppolino’s exegesis seems no less valid and authoritative than the judgment rendered against Weinstein. Yes, Weinstein may well be guilty, but his guilt cannot be established de facto. Under a constellation of ad hoc attestations and countervailing circumstances including the deliberate and prolonged relationship and even intimacy of the complainants with the accused, the pressure of the mob and the media on the exercise of impartial justice, the failure of the voir dire process and the non-sequestration of a vulnerable jury owing to a complaisant judge, and the crucial absence of literal evidence and material verification, like it or not, Harvey Weinstein is the victim of a jurisprudential travesty.
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David Solway’s latest book is Notes from a Derelict Culture, Black House Publishing, 2019, London. A CD of his original songs, Partial to Cain, appeared in 2019.
