As the Harvey Weinstein trial came to a close, mixed views exist on how its outcome might affect UK victims bringing similar charges against their perpetrators
Harvey Weinstein in Paris at the César Awards ceremony
American film producer and ex-Hollywood mogul Harvey Weinstein was found guilty of third-degree rape and a first-degree criminal sexual act in New York City in February of 2020. While hailed a victory by the 80+ women who have accused Weinstein of inappropriate criminal behavior (ranging from requests for massages, to intimidating sexual advances, to rape) members of the UK legal community are concerned about the effect of this rape trial on British victims of such offences.
James Mulholland QC of 23 Essex Street Chambers expressed concerns that the successful prosecution of Weinstein could backfire because of a misunderstanding, about how cases are conducted in the UK. Weinstein’s trial had to be halted at one point, as his lead lawyer Donna Rotunno brought one of Weinstein’s main accusers to uncontrollable sobbing after more than four hours of intense grilling. Mulholland believes that women may be deterred from continuing as victim witnesses in cases in the UK because they believe that their experience might be the same in an English court. He states: “There’s no way witnesses would be subject to anything even close to the same treatment in the UK.”
The US constitution enshrines the right of an accuser to face the person accusing them. In the UK, however, courts offer vulnerable witnesses special protection measures, such as live link video facilities, or a screen in the court room between the accuser and the accused. Additionally, while the US requires adult complainants to testify in chief, meaning lawyers for the prosecution question them in court before they are cross examined by a defence lawyer; the UK system uses pre-recorded videos made at the police stations in place of evidence in chief.
While academic and barrister Laura Hoyano believes that US courts could learn from the UK when it comes to taking sexual offences to court, it seems that the UK has problems of their own when prosecuting rape charges - conviction levels falling to their lowest in more than a decade. Despite Hoyano’s desire for British women to understand that no rape trial in the UK would proceed in the same way as it might in any state in the US; British prosecutors have been criticised for making intrusive and unnecessary demands for the mobile and medical records of victims.
Crown Prosecution Services figures reveal that fewer cases are being referred to them by police. Cases are also more complex, as the requirement for full disclosure is becoming more common. Rape claimants are now routinely asked to grant full access to their digital devices and personal records, or otherwise risk having their cases dropped. This drop in numbers is particularly noteworthy at a time when more victims are coming forward to report attacks - especially following the #MeToo movement.
Civil liberty organisations have called the act of police downloading contents from victim’s phones, unlawful ‘digital strip searches.’ Fears that such intrusive methods are deterring victims from continuing as victim witnesses (even when a suspect has been identified) have prompted the Metropolitan police to pilot a data inspection system that limits the invasion of victim privacy.
Some UK service providers, following the Weinstein verdict, argued that the case would not likely have reached court in the UK because the criminal justice response to rape in this country has gone ‘backwards.’ Sarah Green, Director of the End Violence Against Women Coalition, specifically said it would be very hard to imagine a case like Weinstein’s leading to a conviction here - a statement likely not agreed with by Mulholland and Hyano, but nonetheless representative of the uncertainty women face when bringing such allegations forward. The outcome of the Weinstein trial shows society’s progress in prosecuting sexual abuse, but it is clear that justice systems, locally and globally, have a lot of work left to do.
Written by Zohra Bhimani, first year law student at Queen Mary University of London.
Image by Georges Biard via Wikimedia Commons.