Those people working in the space of gender-based violence — and sexual and gendered harassment in particular — are celebrating the outcome of the Harvey Weinstein trial, this requires more than a simple celebration. The verdict highlights a number of critical issues required to build systems, processes and advocacy when it comes to this work.
The beauty of the verdict is its focus on the often deliberately misunderstood questions raised about due process or natural justice vis-à-vis that of a complainant- and victim-centred process. It also highlights the distortion in wilfully creating a narrative that complainant- and victim-centred processes do not allow fairness or due process in relation to the rights of the accused.
When facing allegations of sexual or gendered harassment, accused individuals and their supporters very quickly turn to issues of natural justice, questioning due process. This emcompasses high-profile international cases — including Weinstein’s, as articulated by his lawyer, Donna Rotunno, and United States Democratic Senator Al Franken — as well as local cases, including what transpired at Equal Education and Wits University, to name a few.
Weinstein, a once powerful Hollywood mogul, was found guilty of two felony sex crimes. Almost 100 women came forward, and six women testified at his trial, although he only faced criminal charges in connection with two of them. These women and their experiences were placed at the centre of this case. Their collective accounts were used to establish a pattern of behaviour over time.
What this case demonstrates is that when women speak out, and when those of us at the receiving end of these complaints hear them, believe them and support them through a complainant- or victim-centred process, it does not mean that we don’t want to see or adhere to due process or fairness in relation to the rights of the accused.
Believing and supporting women
Quite the contrary. What we want to do is acknowledge that the very process of coming forward, of speaking out, of telling your story is not an easy one. That burying your story discourages others from speaking out. That facing the normalised and pervasive world of being blamed, of not being believed, of having your integrity and performance questioned, all come with dire consequences. So to hear, believe and listen is not to say that accused individuals don’t have rights and should not access natural justice, but should be understood as what is required to be a true champion for gender justice in a gendered, unequal world.
Facing a hearing panel (or this case a jury), based on a thoroughly constituted investigation is due process. No one has said that the accused should not be heard, that they should not have the right to challenge, or to present evidence. Believing women and supporting them through a complainant-centred process does not deter from that.
It simply recognises that we need to do more to tilt the patriarchal imbalance. It simply recognises that to tackle the pervasive nature of gender-based violence, the voices of complainants must be central. It is their protection and their support that is critical in instilling faith and trust in systems that have been established to tackle gender-based violence. This is the only way we can genuinely and meaningfully tackle gender-based violence.
Despite the cries from accused individuals that they are not being afforded natural justice, the reality is that complainants and victims are, in fact, the ones far more frequently not granted natural justice. They face the loss of the conclusion of their hearings, and their consequent alienation when resignations take place. They face powerful, male-led whisper networks, boys clubs, behind-the-doors settlements and nondisclosure agreements. They have to live with the neverending army of the enablers and the complicit, who say one thing, but whose actions and deeply held beliefs demonstrate something completely different. One cannot stand and speak of gender equality and being against gender-based violence without demonstrating what one is doing to support the victims of gender-based violence and sexual and gendered harassment.
Defining natural justice
The challenge to a complainant- and victim-centred process often comes through a legal process. So what is the legal test for natural justice? Natural justice is present when the audi alteram partem rule, which allows both parties the right to be heard, prevails; when the right to an independent panel free from bias hears the evidence; and when the right exists to question what’s being presented in support of or to counter the allegations being made.
There are myriad ways this can be contested, but the way accused individuals and their supporters do so fails a basic understanding of natural justice. That one is being heard, but that their version of events is found to be improbable does not mean that they are not being heard. That the panel contains an individual who understands a feminist politic, does not constitute bias (could a complainant or victim then argue that a panel with male power is inherently biased?). In addition, due process allows the accused to object to a panel member (although not to determine who should be appointed). That the evidence is not presented through photographs or DNA or “hard” evidence, does not mean that evidence is not being presented.
The Weinstein verdict shows what is possible when due process (in the way it should be understood and NOT in the way perpetrators want us to understand it) unfolds. We believed those women, we supported them, we understood their difficulties and their pain. This was not because we didn’t want due process, but because we wanted the litmus test on audi alteram, bias and evidence to unfold. It did. And it will for all those accused.
So to all the accused out there, if you are indeed innocent, don’t fret, don’t panic, and don’t resign. Allow an independent panel to determine whether your assertions are correct. We want to hear your version of events; we want to afford you an opportunity to be heard, to challenge any bias and to allow you to present your evidence. By doing so, if any of the allegations against you are false, this will emerge.
Celebrating brave women
Weinstein’s story is one of justice, albeit partial. It’s a celebration of the many women who come forward to share their stories. It is a celebration of a complainant-centred process or, more simply, of being heard and being believed. It is a celebration of the many brave women who never achieved justice or who watched their partial justice being undone, and it’s a celebration for those of us who know that ignoring the reality of power and gender privilege is a fatal choice.
We are still a far way from changing processes and systems that continue to support patriarchal inequality. We are failing to recognise what women experience daily (and not just in hotel rooms, office printing rooms, in working underground, or in the corridors at workplaces or in their homes). We are not recognising the unbearable grind required to shift the undue onus of our actions, behaviours and the burden of proof on to those that put us through our daily anguish.
Finally, for those of us who were sitting on the edge of our seats during the Weinstein and more local cases, wondering whether the pursuit of justice would fail women again, we must always remember that a not guilty verdict does not mean that what was alleged didn’t happen; it simply means it couldn’t be proved, or in a worst-case scenario that more powerful forces in the army of the complicit won, as they often do.
We have to keep speaking out, challenging, questioning and recognising that the legal system is not geared towards understanding, let alone managing, the complexities of gender-based violence. And that complainant- and victim-centred processes are needed in the pursuit of justice in cases of gender-based violence. This will enable us not only to deal with individual cases, but it is critical to unseating the systemic and structural realities that enable gender-based violence to happen. For this, the legal profession owes us.
Crystal Dicks is the former director of the Wits Gender Equity Office and is currently freelancing as a gender and development practitioner