By Lieff Cabraser Attorney Avery Halfon
The cultural impact of Harvey Weinstein’s criminal conviction for felony sex crimes may be broader than any other in years. As the revelations of his abuse were the spark that ignited the #MeToo movement, his guilty verdict symbolizes a formal recognition of how much sexual misconduct matters, how it happens, and the harm it causes. It may spur more potential individual and institutional offenders to “get it” and behave differently—not only because it may signal a more concrete risk of consequences, but because it may help those potential offender internalize why they should change their individual conduct or institutional culture to prevent sexual misconduct in the first place. As I wrote recently, both research and anecdotal evidence shows that such understanding and prevention is exactly what victims value most.
But Weinstein’s criminal conviction is an outlier, of course. Most criminal prosecution does not have cultural resonance like his, and without that broader impact—or much focus on moving individual offenders or their enablers to recognize the harm they caused and change their behavior—it often does not satisfy victims. Alternatives like civil litigation, restorative justice, and truth and reconciliation can better achieve victims’ goals if tailored to meet them.
Criminal conviction often does not meet victims’ goals
Criminal prosecution does not typically prioritize victims’ goals. According to the largest crime victim surveys in the U.S. and the U.K., large majorities of victims in both countries care most about making the offender not commit the crime again. But criminal comviction does not necessarily lead offenders to recognize the harm caused or change their behavior (or even aim to do so). For example, criminal conviction sadly does not seem to have led Weinstein to recognize the harm he caused; his reaction to the verdict was: “But I’m innocent, I’m innocent. How could this happen in America?”
Criminal prosecution can also be undesirable for victims because, as imposed in today’s America, it is a harsh, blunt, traumatic process both for both offenders and victims, who may not want to subject their abusers—often a romantic partner or family member—to the whim of the state. In the words of writer Kai Chang Thom, survivors do not “deserve to live with the consequences of a social system based on carceral punishment, in which we have absolutely no control over what happens after we disclose the identities of those who have hurt us.” For the same reason, a 2019 course on sexual harassment in the workplace by the New York Academy of Trial Lawyers recommended that company sexual harassment policies not describe themselves as “zero tolerance,” because that may deter reporting by victims who want their harassers to learn not to harass, not necessarily to be fired.
And for all these problems with successful convictions, they account for merely an estimated 0.7% of rapes, or about 6.5% of reported sex assaults. In the vast majority of cases, the criminal system does not intervene at all or fails to convict.
Alternatives like civil litigation, restorative justice, and truth & reconciliation can achieve the kind of institutional reform victims care about—if tailored and implemented well
There are alternatives to criminal prosecution more targeted toward the things victims value—recognition of harm, behavior change, and prevention. One option is restorative justice processes, which bring together victims and offenders in carefully curated conversation that can include sharing the harms experienced and in some cases jointly determining consequences. For example, Ashley Judd, the first actress to publicly accuse Weinstein of sexual misconduct, said she “would love for Harvey to have a restorative justice process…. The criminal justice system is a distant second to a more humane kind of process.” However, although restorative justice conferences have been used with some success in the sexual assault context, there are also concerns that restorative justice could be re-traumatizing for sexual misconduct victims, and might put too much focus on individual offenders without promoting institutional reforms.
Another alternative to criminal prosecution is civil litigation, which can be particularly valuable for targeting the institutions that protected abusers and failed to protect victims. Litigation—or even the mere threat of litigation—can lead not only to compensation for victims but more importantly to reform of institutions’ cultures, policies, and practices to achieve the goals of harm recognition and prevention that victims value most.
For example, the University of Southern California recently settled litigation (co-led by my law firm, Lieff Cabraser) regarding sexual assault by a long-serving school gynecologist. The university has agreed to implement a number of important institutional reforms, including new hiring procedures, trainings, and reporting procedures, as well as commitment to work with an independent consultant and an independent women’s health advocate to ensure the university complies with these reforms and develop further steps.
The risk of litigation can also lead organizations to undertake creative culture change processes, such as the Humane Society’s truth and reconciliation process, which was set up with the input of Lieff Cabraser’s employment practice group chair Kelly Dermody following numerous allegations of sexual misconduct by the Humane Society’s former CEO. All employees and volunteers have the opportunity to share their experiences in a confidential interview with an independent employee advocate, who will recommend and help implement reforms to the Humane Society’s policies, trainings, and procedures.
But for litigation to succeed, it needs to be tailored to victims’ goal—not only but especially in the sexual assault context. Dozens of Harvey Weinstein’s victims sued him and his film studio, and have reached a tentative settlement agreement that left many victims feeling, in one’s words, “defeated and hopeless.” The proposed settlement would involve the studio’s insurance companies paying $25 million to victims, none of whom would receive more than $500,000. But Weinstein himself would pay nothing to the victims, and in fact might have his own legal costs paid for by insurance. Nor does the settlement appear to include any requirements for changes by Weinstein’s film studio (which is in bankruptcy proceedings).
It is no surprise many victims felt unsatisfied with the no-apology, no-reform, “Weinstein pays nothing” settlement: it includes no acknowledgement of harm, contributes to no internal change by the individual or institutional offender (neither of which even suffer a pecuniary consequence), and thus signals no likelihood of prevention. Even though research and anecdotal evidence show these are the impacts victims tend to care about most.
Gymnasts share similar disappointment at a proposed $217 million settlement with U.S.A. Gymnastics relating to the widespread sexual abuse of team doctor Larry Nassar. The settlement would require the gymnasts to release from liability the organization and scores of individuals who either committed or knew of abuse without releasing any further information about how the organization allowed this to happen.
Rachel Denhollander, the first former gymnast to publicly accuse Nassar of molesting her, said the settlement offer communicated to gymnasts that their “assault was not that big a deal” and “shows how little they understand about our motivation,” which is “about forcing the system to change.” Simone Biles, the world’s most decorated gymnast, tweeted “don’t THEY also want to know HOW everything was allowed to happen and WHO let it happen so it NEVER HAPPENS AGAIN?” These reactions show that even a settlement proposing a relatively large amount of money won’t necessarily meet victims’ goals—they want the offender to really get it, recognize the magnitude of their harm, and want to undertake internal reform that prevents the problem from happening again.
Litigated settlements should aim to achieve more—and they can, as in the U.S.C. case. We should be working to get under the hood, see what leads companies or institutions to make the mistakes they’ve made, and help them (through pressure and confrontation when necessary) commit to the kind of verifiable cultural and policy change that can prevent future harm. It’s what victims want, and it’s what matters most.
Avery Halfon is an attorney at Lieff Cabraser Heimann & Bernstein who represents victims of sexual abuse and other victims of corporate and institutional misconduct. He seeks to use litigation to pressure corporations and other organizations to change their cultures and set up internal accountability systems to prevent harm.