The Weinstein Trial and the Lies of Due Process

No person shall be deprived “of life, liberty, or property, without due process of law.” Due process suggests the comforts of idealized thinking, summoning notions of equality and fairness and the sanctity of facts. It may be rooted in reason; in practice, though, it can look like what it has during Weinstein’s trial: a perpetuation of harm.  

Grueling has often appeared in journalistic summaries of the Weinstein trial. The term serves as a stark reminder of all that is asked of alleged victims when they testify. Arthur Aidala, one of the defense attorneys, brought a machine-gun approach to his cross-examination of two prosecution witnesses late last month. (They took the stand in support of Annabella Sciorra, who has accused Weinstein of raping her in the early 1990s and who was herself testifying in support of Mann and another accuser, Mimi Haleyi.) To Kara Young, who had told the court that she had once observed cuts on Sciorra’s thigh, and that Sciorra had confirmed to her that she had been cutting herself in response to the pain of the alleged rape:

“Did you call a doctor when you saw the cuts on your friend?”

“Did you seek any medical intervention for your friend?”

“Did you talk to anyone about how to help your friend?”

“Did you do anything at all to help your friend?”

To Rosie Perez, another friend of Sciorra’s, who had testified that Sciorra had confided in her about the alleged rape in the ’90s:

“As far as you knew, she might have been hurt at the time you spoke to her, and you didn’t even go to see her?”

“Did you go out that night?”

“You didn’t ask her about it every day after that?”

It is a truism that those who allege sexual misconduct will be punished, effectively, for speaking out—that whether they testify from a witness stand or within a broader kind of court, they will be mocked and mistrusted and eventually asked whether that shirt they’d been wearing wasn’t also an invitation. With Aidala’s line of questioning, though—his apparent attempt to suggest to the jury that Young and Perez were bad friends and therefore unreliable narrators—the doubt that is so often aimed at survivors was expanded in its scope. This was victim-shaming, made transitive.

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The structure of the criminal trial, when it deals with the intimacies of sex, means that testifying—the ostensibly straightforward act of telling one’s story—can require extreme bravery. “There is absolutely no risk for a woman to come forward now and make a claim. Zero,” Rotunno told Twohey. Here, however, is one of the many possible counterarguments: “He held me down on the bed and he forced himself on me orally,” Haleyi told the jury. “I was on my period. I had a tampon in there. I was mortified.” Here is another: Mann sobbed as she told the court that Weinstein had raped her. She hyperventilated. When she was given a break, she was heard screaming from a back room. She had spent several hours testifying. “Defense lawyers again portrayed her as an opportunistic manipulator who had a long romantic relationship with the producer,” is how a Times subheading summed up part of the time she’d spent on the stand.

This is due process at work. Whether the process will result in justice is a notably different matter. The prosecution rested its case on Thursday, after two weeks of testimony, with weeks’ worth of rebuttal from the defense likely to follow. As Weinstein was leaving court last Friday afternoon, after Mann’s testimony about his body, a reporter asked for his reaction to the proceedings. This was Weinstein’s reply: “Wait to see what the lawyers say about her.”

Megan Garber is a staff writer at The Atlantic, where she covers culture.