Late last week, the New York Times dropped a bombshell story filled with accounts from several actresses and acquaintances accusing Harvey Weinstein of sexual misconduct. Their stories, which often involve being lured into his hotel room under the pretense of a business meeting, allege everything from sexual harassment (which the NYC Bar defines as "unwelcome verbal, written, or physical conduct that is sexual or which you think you have to put up with to keep your job") to sexual assault (which the DOJ defines as "any type of sexual contact or behavior that occurs without the explicit consent of the recipient"), and have been corroborated with every passing day as more and more women in Hollywood come forward to share their own experiences with the producer.
But is that it? As it stands now, these accusations are still unconfirmed. Weinstein has yet to be formally charged, but if he is, could he actually go to jail? We spoke to Maya Raghu, Director of Workplace Equality and Senior Counsel at the National Women's Law Center. Raghu specializes in workplace issues, including discrimination and sexual harassment, and helped us make sense of what could be next for Weinstein and the women who have come forward.
What is the difference between sexual harassment and sexual assault?
"Sexual harassment and sexual assault are connected behavior, but are treated under two different legal regimes. Sexual harassment is traditionally dealt with under civil appointment law, and title VII, which is one of our major federal anti-discrimination laws, prohibits, among other things, sex-based discrimination in employment, and sexual harassment is a form of sex discrimination. States also have their own civil rights laws, and almost all of them prohibit sex discrimination as well as sexual harassment. And then many cities have their own civil right laws as well, like New York City has very strong civil rights laws with strong employment discrimination protection. Those are sort of three different types of civil rights laws covering sexual harassment.
Sexaul assault, on the other hand, is traditionally dealt with as a crime under criminal laws, and every state has their own definition of the conduct that constitutes sexual assault and/or rape. And then you can also in many states bring a civil lawsuit against someone who perpetrated a sexual assault."
What kind of punishment can someone expect for sexual harassment or sexual assault if they were convicted?
"So, sexual harassment, since it’s a civil crime, there isn’t a conviction. It’s a lawsuit. It’s a civil lawsuit in court. First of all, under federal law, you can only sue employers, not the individual who was the harasser. So if you’re in federal court and you sue an employer for sexual harassment, and they’re found liable, you can win money, but under federal law those are capped, there’s an upper limit of 300,000. Under some states’ laws you can get more money because they’re not capped. Also, under Title VII or state law, if you’re suing for sexual harassment, you can ask for a remedy that asks an employer to sort of change their practices. Maybe you’ll ask them to implement a strong sexual harassment policy or training, conduct training a certain number of times a year. Those are the kind of outcomes you can get for a plaintiff that brings a civil sexual harassment lawsuit.
In criminal court, that means someone has to file a complaint with the police. We know that many survivors are reluctant to do so for a lot of valid and good reasons, but if they do then it’s up to the prosecutors whether to go forward with the case. The prosecutor sort of controls that criminal action. The victim who came forward is not really in control of that proceeding. The outcome of that, of course, could be a sentence if they’re found guilty.
The last thing, you could bring a civil suit against the actual perpetrator of the sexual assault, and that’s, I believe, what Taylor Swift did earlier this year. Again, that is a case for monetary damages."
Could Harvey Weinstein be prosecuted and go to jail?
"The answer is possibly, yes. In terms of the criminal case it really depends on the strength of the evidence. Are the women who are coming forward, do they want to speak to the police and prosecute? Does the prosecutor think there’s enough evidence to charge and go forward with the case?
For women who are sexually assaulted, they could bring a civil case in court for sexual assault and try to get some money as compensation.
For the others, under civil rights law, it depends on whether there was this employment relationship between him and them. Some of them were not employees, so federal civil rights law also covers situations like the hiring process. You can’t discriminate against someone and base a hiring decision on someone’s sex or race or disability, or things like that. If you’re interviewing for a job and the employer refuses to give you a job offer because they don’t like women or they made submission to sexual advances a condition of getting a job, then that could be evidence of discrimination, even though they were just in the interviewing process."
Are there some allegations that happened too long ago for the victim to do anything about?
"There are definitely time limits under federal and state civil rights laws for bringing claims of employment discrimination. And then in terms of the time limits for criminal cases, it really varies among the states. And for civil action for sexual assault it also depends on the state law and the type of claim they’re bringing. Generally speaking, yes, there are time limits. So unfortunately for some people depending on where they they live they might not be able to pursue a criminal complaint or a civil case."
Does that have to do with where they say the incident took place, what state they were in when it happened? How is the state law divided when it comes to that?
"Again, it depends. Where is the company based? Where does that person live? Where did this actual incident take place? All those things factor into it. If they all happened in California it would happen under California law and federal law. But if the company is based in another state but was doing these interviews in California then it depends."
Some of these stories take place overseas, like Cannes, does that also change things?
"Generally, US citizens are protected by federal anti-discrimination laws. Even if they are overseas, especially if it’s an American company based in America, they will be subject to American laws, general speaking."
What is “mandatory arbitration”?
"This is something that is becoming increasingly common in employment situations so that when people start a job, they’re frequently, maybe they have an employment contract or just a condition of being offered a job, they have to agree to go to arbitration to resolve any discrimination claims or any employment claims at all, including sexual harassment. That means giving up your day in court and instead you arbitrate, which is a private proceeding generally controlled by the employer. They can pick the arbitrator, they can pick the forum, the filings are kept private, the allegations are private, the outcome is private and frequently the people who are coming forward who make the complaint have to sign a non-disclosure agreement if they end up settling or resolving. So it can really help hide and protect serial harassers from any kind of accountability or consequences and it can really silence victims from coming forward because they may feel like, ‘I’m the only one.’"
So what do you think of the fact people are instead coming forward on social media?
"It’s very interesting the way, especially the past two years, social media has facilitated a lot of this information coming out. Frequently social media can be such a terrible place for women, but in situations like these, it seems to have provided this sort of space to disclose and share stories and find others and get support from other women and men who have gone through this while also providing a sort of anonymity at the same time, if that’s what you choose. I think that was certainly a factor we saw with the Cosby situation. So many women were coming forward with their stories on social media about their experiences with him over the year.
In a lot of ways it’s not as formal as talking to a reporter and disclosing it. They might not report if they don’t feel like they could corroborate a lot. But this is another way to tell your story and share what happened."
(This interview has been edited and condensed for clarity).