On February 24, 2020, Harvey Weinstein was convicted of rape in the third degree and of committing a criminal sex act in the first degree (CNN). While he was acquitted of more serious charges, his case raises questions about the role of consent and power dynamics in the entertainment industry (See id.). Weinstein was one of many powerful men in the entertainment industry who helped perpetuate a culture of systemic sexual abuse (Variety). The #MeToo movement sought to empower women working in this industry and in other toxic environments where sexual misconduct was pervasive, and Weinstein’s convictions mark a turning point in this movement (CNN). Weinstein’s criminal proceeding was the first opportunity to listen to sworn testimony from women who were sexually assaulted by Weinstein (Variety). A significant complicating factor in this trial was that many of the charges occurred many years ago and victims were able to provide very little physical evidence of the abuse (WSJ). In the past, these factors would have made a case against Weinstein almost impossible, but social movements like #MeToo and the increased visibility of sexual harassment in the workplace have changed public perception of sexual assault cases, especially in environments where there is a significant power imbalance between the abuser and victim (See id.).  

In the era of #MeToo, the law of rape and sexual assault is evolving.

Weinstein’s conviction raises two important legal questions in sexual assault cases. The first is the meaning of consent (or whether consent is even possible) between a subordinate and a superior or someone with power over the subordinate’s career (WSJ). The second is the question of how we should evaluate sexual assault allegations in instances where there is either limited evidence––which may be due to the victim’s silence, lapses in memory on the part of victims or witnesses over time, or failure to timely collect evidence after the alleged assault––or there is a continued personal or professional relationship between the victim and the abuser after the alleged assault (Id.).

There is a broad legal consensus that consent cannot be obtained through coercion (Id.). However, the question remains as to what should be considered coercive. Is it coercive to procure consensual sex from a subordinate in exchange for a promise to help develop the subordinate’s career? On the one hand, this exchange could be viewed through the lens of private individuals’ freedom to contract. On the other hand, the prevailing hierarchical relationship between the two individuals creates a significant power imbalance that may limit a subordinate’s capacity to offer genuine consent (WSJ).

The issue of evidence in sexual assault cases is necessarily influenced by our perception of sexual assault victims. The question becomes whether we are willing to lower the burdens of proof and persuasion in cases where documented evidence is often scarce. If we do lower those burdens, how do we then construct an acceptable threshold evidentiary requirement that preserves necessary legal protections for all parties involved? As this area of law evolves in the coming years, and more men in positions of power are prosecuted in the public eye, the impact of social movements like #MeToo and the bravery of women coming forward will continue to shape the legal community’s response to sexual harassment cases. 

About the Author
Erica Peña is a first-year law student at the University of California, Berkeley School of Law. At Berkeley, Erica is part of the Youth Advocacy Project where she works with clients at the Orin Allen Youth Rehabilitation Facility. She is also a member of La Raza Law Journal and La Raza Association. Before Berkeley Law, Erica worked for Trio ETS, a college outreach program at high schools in South Central Los Angeles. Erica received her BA in Political Science and minors in Business Law and American Popular Culture from the University of Southern California.