On the second day of being questioned in Harvey Weinstein’s sexual assault trial, Jessica Mann broke down on the stand.
Mann had testified on Friday that Weinstein raped her, then manipulated her into an abusive relationship, Nishita Jha reports at BuzzFeed. Then, on Monday, Weinstein’s defense lawyer peppered Mann with questions, suggesting that perhaps it was she who manipulated the producer.
“You’re interpreting this in a particular way, but it’s possible that he just genuinely liked you,” defense attorney Donna Rotunno said.
Mann started to cry and appeared to have trouble breathing. The judge cut the day’s proceedings short.
The incident was just one of many times when the trauma that women say they experienced at Weinstein’s hands broke through into the trial itself. Six women have re-lived, on the stand, the abuse they say they suffered from Weinstein, adding disturbing details to a case that was already incredibly disturbing.
Mann said that Weinstein trapped her in a hotel room, holding the door closed as she tried to escape, then held her hands, removed her clothes, and raped her. Actress Annabella Sciorra said when Weinstein raped her, “It was so disgusting my body started to shake in a way that was unusual. It was like a seizure or something.”
On Wednesday, a sixth witness cried on the stand as she recounted how Weinstein trapped her in a bathroom, pulled her dress down, groped her, and began masturbating.
Their testimonies are a reminder that the process of reporting sexual assault, and participating in an investigation and trial can itself be a traumatic experience for survivors. Not only do they have to relive a painful part of their lives, one they often would rather put behind them, they also have to submit to questions that are designed to cast doubt on their credibility, and that often play on damaging myths about sexual assault. It’s part of the reason why survivors often choose not to report to law enforcement at all, and why only a small percentage of allegations of sexual assault ever make it to trial, let alone result in a conviction.
No matter what happens with Weinstein’s case, his trial could offer some lessons for reforming the criminal justice system — and the larger culture of which it is a part.
Ultimately, Weinstein “has every right to a vigorous defense,” Deborah Tuerkheimer, a law professor at Northwestern University and a former prosecutor, told Vox in a January interview. Learning from his trial may be less about pointing fingers at his defense team than about “stepping back and asking, what does it mean that these are the tactics that have the greatest likelihood of success?”
The Weinstein trial is a reminder of what is required of survivors who come forward
When the trial began in January, the allegations against Weinstein had been headline news for years. Many Americans already knew that the producer had been accused of sexually harassing or assaulting at least 100 women, sometimes offering to help them in their careers if they just did what he asked. They knew, also, that exposés of these allegations had helped catapult the Me Too movement into its current, most public phase.
But a trial is different than a media story, and the women who have testified against Weinstein have had to go into minute detail about their experiences, beyond what has been reported in the press. A reporter doing even the most detailed story “is not going to be asking the same questions that a prosecutor necessarily has to,” Tuerkheimer said.
According to the New York Times, Sciorra testified that in 2013 or 2014, Weinstein showed up at her apartment and pushed his way inside. Then he unbuttoned his shirt, pushed her onto her bed, pinned her arms above her head, and raped her.
“My body shut down,” she said, and she lost consciousness. Weeks later, she said, he confronted her at a restaurant, telling her, “This remains between you and I.”
“His eyes went black,” she said, “I thought he was going to hit me right there.”
She fought back tears as she testified, the Times reported.
Mann, whose allegations led to the rape charge against Weinstein, said that he trapped her in a hotel room in Manhattan in 2013. After he raped her, she said she went to the bathroom and found a needle she believed he had used to inject his penis to give him an erection.
“He stabbed himself with a needle and there has to be blood and he was inside of me,” she testified, crying. She said that Weinstein had not used a condom.
She was also asked by prosecutors to describe Weinstein’s naked body. She said his penis appeared deformed and that he had “extreme scarring” on his stomach. Prosecutors also asked the jury to look at nude photos of Weinstein to help corroborate her account.
On Wednesday, a sixth woman who testified she was assaulted by Weinstein was also asked to describe his penis.
The level of detail — asking a woman to describe the genitals of a man she says attacked her — is a reminder of what can be required of people testifying in a sexual assault case. The women who came forward to speak about Weinstein to the media have already faced serious consequences — one woman told the Cut she had constant nightmares after her name was mentioned in the Times, and that she had to spend six-figures on legal and other fees to deal with media scrutiny and backlash.
But the realities of a legal case have required an agonizing specificity that even the most thorough journalistic accounts don’t necessarily include. While journalists, ideally, want to get at the truth, they don’t need to convince a jury to send someone to prison — that process has required witnesses to relive their experiences in a way they may never have previously been called upon to do.
Testifying about sexual assault can be “incredibly difficult” for survivors, Sheela Raja, a clinical psychologist and author of the book Overcoming Trauma and PTSD, told Vox. “Often that is one of the most traumatic things that's ever happened to you in your life, and to have to go into it in excruciating detail is really traumatizing,” she explained. “A lot of people who survive trauma spend a lot of time trying not to think about those things.”
Cross-examining sexual assault survivors often means attacking their character
They’ve also had to endure cross-examination. Past trials of high-profile defendants have offered disturbing examples of what this can mean for people reporting sexual assault. At Bill Cosby’s first assault trial in 2017, his defense team painted a witness as “an attention-seeking, sexually promiscuous drug user whose real issue was a poor work ethic,” Caroline Heldman wrote at Vox at the time. Even at his retrial, which took place after the Me Too movement entered its current, most public phase, defense attorneys called one woman who took the stand a “con artist,” and said of another, “It sounds as though she slept with every man on the planet.”
There was reason to expect some of the same blaming and shaming from Weinstein’s attorneys. “I think we will be seeing a lot of what was on display in Cosby,” Tuerkheimer said.
One of Weinstein’s lawyers told jurors that the defense would not seek to shame victims, Jha reports at BuzzFeed. But in cross-examination, their questions have still followed a familiar pattern.
For example, attorney Deborah Rotunno questioned Sciorra repeatedly about whether she had tried to fight Weinstein off physically, despite the fact that many survivors of sexual assault do not respond by attempting to fight, Jha reports. BuzzFeed reproduced Rotunno’s litany of questions:
“Why didn’t you try to run out of the apartment?”
“Did you scream?”
“Did you hit him?”
“Did you scratch him?”
“Try to poke him in the eyes?”
Questioning people who report assault about their efforts to fight is par for the course at trials. “There’s a long history of putting the burden on alleged victims to act in ways that show resistance,” Tuerkheimer said.
But in reality, “survivors have many responses during traumatic events, including fight, flight (getting ready to fight back or run away) — or even a freeze response,” Raja said in a follow-up email to Vox. “The legal system is not well educated about these kinds of reactions, and survivors are often made to feel guilty and ashamed by the way they reacted — even though these are non-conscious decisions that the body makes in times of incredibly difficult situations.”
Then there have been questions about the women’s credibility. On Monday, Rotunno asked Mann a series of questions designed to cast doubt on her account of an abusive relationship with Weinstein, Jha reports.
“What attracted you to a friendship, relationship, sexual or professional, with him was the fact that he was successful and powerful, isn’t that right?” Rotunno asked at one point. “You enjoyed the power and the parties, isn’t that right?”
“Ms. Mann, you lied to your mother, lied to Harvey, lied to your friends about your relationship,” she said at another point.
“My abuse was embarrassing, and I didn’t want to share it with people,” Mann answered. “I wouldn’t characterize that as lying.”
It was later that day, after five hours of questioning, that she broke down in tears.
Her experience shows what it means to testify about sexual assault today: submitting to questioning that is designed not just to invalidate your account of a traumatic moment, but also to call into question your very character as a human being.
Self-blame is already a common response after sexual assault, and “it matters when people around you say, ‘this wasn’t your fault, you did the best that you could,’” Raja said. “That’s just the opposite of what happens in a trial.”
The treatment of Weinstein survivors in court exposes the deep flaws in the criminal justice system
No one knows yet what verdict the jurors will deliver in Weinstein’s trial when it ends in a few weeks — the last of the prosecution’s witnesses is being cross-examined today — whether he will go to prison or walk out of the courthouse a free man. But what’s already clear is that, in order for him to be tried at all, six women have been through a grueling court experience designed to break them down and paint them as, if not liars, then at least unreliable narrators of their own lives.
This is the reality of the American criminal justice system today. That’s not to say the system has nothing to offer survivors. Andrea Constand, whose testimony led to Cosby’s conviction in 2018, spoke in a Dateline interview that year of joining a growing movement of survivors.
“I did it for justice,” she said of her testimony. “But I also did it because of what was happening at the time. And what was happening was many women came out into the public, into the media in droves, saying that they too had been drugged and sexually assaulted.”
Meanwhile, for many survivors, testifying is not necessarily about getting a settlement or even punishment for the accused. “Often survivors will say, now I know that this person can’t do this to anybody else,” Raja said. “There’s often a lot of altruism involved in people’s motives.”
Still, if there’s anything the Weinstein trial has shown thus far, it is the enormous price our country still exacts from people who come forward to report sexual assault.
There are ways to lessen that price, Raja said. Allowing people who testify to have a psychological advocate or other emotional support person with them throughout investigation and trial could make the process less traumatic. “Would we expect a military veteran to get up there and keep talking about the worst war experience, again and again, without any help?” she asked.
Better public education around sexual assault and trauma could also make trials easier for survivors. “Juries need to understand that just because somebody doesn’t report it like a court stenographer, or the same way every single time, that doesn’t mean that there’s not truth to it.”
Ultimately, a survivor’s experience on the witness stand may be determined less by any particular legal team, and more by the myths about assault that juries — at least in defense attorney’s eyes — are likely to believe.
“Many of these age-old tactics continue to be the go-to ways to attack accusers in court,” Tuerkheimer said. Until that changes, the experience of going to trial will likely remain a painful one for those who have already been through pain.