The Post-Weinstein Reckoning: What Do We Do Now?

There is a painting that has brought me great personal comfort recently, as brave soul after brave soul has come forward with startling allegations of sexual misconduct: Artemisia Gentileschi’s Judith Slaying Holofornes. The subject — two women holding down a struggling behemoth of a man as one of them beheads him with a blunt knife — is taken from an Old Testament story of a powerful Assyrian general who was assassinated by an Israeli heroine. There are a number of versions of this scene, part of a genre in Renaissance art known as "Power of Women” paintings, but I find Gentileschi’s version the most satisfying (especially right now) because it is autobiographical. She painted herself as Judith and her male mentor, who was tried in court for Gentlieschi's rape, as Holofernes.

Gentileschi’s painting is a powerful, gory scene. Blood pouring down the sheets and Holofernes’ eyes rolling back into his head in agony as he pathetically struggles to escape Judith’s sword. It’s a visceral, disgusting expression of pure revenge, a certain kind of justice that is, fortunately for the men who continue to abuse and even serially rape women in 2017, not really an acceptable or productive path to reparations.

But, honest question: What is the right path? That is the the answer we need to find now, as we assess what to do with men who have done everything ranging from unwanted advances to groping to serial rape. Ever since the truth about Harvey Weinstein’s long career as an abuser was finally laid bare just six weeks ago, more than 30 powerful, often widely respected men have been punished for alleged crimes. And it happened fast: Just days after the Weinstein news, the head of Amazon Studios Roy Price was out, followed by Lockhart Steele at Vox Media, directors James Toback and Brett Ratner, Kevin Spacey, Louis C.K., and more. Most recently, Today host Matt Lauer was fired from a post he’s held since 1997, thanks to a damning Variety report in the works featuring horrifying stories from multiple women. Thousands more men have been implicated in #MeToo social media posts, group texts, and not-so-secret spreadsheets.

The moment has been a long time coming, and yet it still feels so sudden and overwhelming. We’re only just beginning to grapple with what we do with these men next. What is justice? Is it just about revenge? How do we make things right? Then, there are the questions of severity: How do we judge different acts? Is a series of groping incidents deserving of the same punishment as forcing subordinates to watch you shower?

On some level, #MeToo is the result of incredible progress: Women are talking about harassment in palpable terms with names attached — and it’s happening en masse. We’ve also reached a point when some women’s stories are finally being taken seriously: #BelieveWomen.

This is a massive shift. In the abstract, many of us have long agreed that harassment and abuse are unacceptable — that’s why we already have laws against it. Thanks to the 1964 Civil Rights Act, sexual harassment is already illegal; sexual assault and rape are also already against the law. But the reality has been all excuses and neglect. The result is a long history of zero accountability. What’s happening now is more a matter of an unchecked culture of blaming women and tolerating abhorrent behavior from men than an issue of what’s written in the law books.

In the past, reports of rape, harassment, or abuse, have only brought us to the point of dissecting the merits of the victim’s story, the details of her sex life, and otherwise tearing her apart. This time the tables are turned. We are (finally) beginning to dissect the men’s actions and excuses. We are parsing their apologies, debating their character, and questioning why anyone would think it’s okay to, say, grab a woman’s breasts while she’s sleeping and snap a photo or force someone to watch you masturbate.

While most of us can agree Weinstein should be in jail, Sen. Al Franken offers a good example of where murkier disagreements and confusion come in. The allegations against him: a groping and non-consensual kissing incident in 2006 (complete with a horrifying photograph), and three other alleged groping incidents during photo ops, while he was a senator. In response, some women called for his immediate resignation, while others argued despite his crimes, the public flaming and ethics investigation is punishment enough, and we need to keep those who at least cast votes for women in power. The same goes for Louis C.K.: Does he get points for being one of the first men to finally acknowledge the truth, to not defame his accusers, even though he didn’t actually say the words “I’m sorry”?

Before we can truly grapple with appropriate response we must first understand the difference between accountability and punishment. They’re related, but they’re not the same, explains Rachel Teicher, director of intimate partner violence intervention at the National Network for Safe Communities. “You can have either and you can have both. Ideally you have both.”

Accountability is the very important “grey area,” meaning it’s often more symbolic than anything else. It’s when someone who has done something wrong, accepts responsibility for their actions, acknowledges the harm caused, learns something, and then does something to prove they have learned. Punishment, on the other hand, is “much more black and white,” Teicher says. It’s something carried out by the community in response to an action as a tool of accountability, but also as a tool for deterrence.

Accountability is where the apology comes in. For example, Sen. Franken’s non-apology that he doesn’t remember these incidents is not accountability. But submitting to the ethics investigation is a start. Our best hope is that following the results of a formal investigation, he will offer an acknowledgement of what he’s done, and then lay out a course for himself in which he proves he is truly sorry, and he is going to be better. Perhaps that means he starts participating in the work to tackle toxic masculinity in our culture (maybe through meaningful work with a legit nonprofit). Punishment, meanwhile, might be losing his next election, being censured by the Senate, and perhaps facing lawsuits from people he’s harmed.

Whatever it is, though, the punishment must be fair, Teicher says, or else we waste the reckoning. “It’s got to be a response that is proportionate to what you’ve done. You have to look at severity. And you have to look at is this a one-time thing or is this chronic?”

This inevitable comparison game is really hard when we’re talking about instances of sexual violence, Teicher admits. “It’s very challenging because many of us have experienced any number of these things. But thinking about it in regards to how society should treat those situations is very different than thinking about how we felt about it when we experienced it.”

What’s happening now is more a matter of an unchecked culture of blaming women and tolerating abhorrent behavior from men than an issue of what’s written in the law books.

In other words, the trauma caused by a creep exposing himself or by being physically assaulted may indeed feel the same, but the community around you (be it the criminal justice system or your boss) must consider your safety as well as the safety of others — including the perpetrator. Which is why when we’re talking about punishment and accountability, we have to ask not just what is the harm this action caused, but also whether this is part of a long pattern of behavior, and how severe it is on its own.

The law already very clearly does this for us: While statutes vary, in no state is an ass-grab treated the same as rape. Even in terms of harassment at work, there is a pretty clear standard for what’s actionable under our civil rights laws. “The standard for what amounts to harassment is whether it’s severe or pervasive; sometimes things are both. You might have something that is a smaller act that by itself wouldn’t actually rise to the level where you could file an actual complaint,” explains Fatima Goss-Graves, president and CEO of the National Women’s Law Center. “But if it built up enough over time that it does rise to the level of harassment, then you might have something that is one instance that is severe enough where there’s no debate about it.”

What’s tolerated by the culture, is a different story. And that’s what's changing because we are finally ready to care that unwanted advances, lewd and threatening behavior, nonconsensual touches, and so on are not just examples of “boys being boys” or “locker room talk”: They are actions that have tangible negative effects on people. Acknowledging these things are all wrong and demanding the people who choose to do them be held accountable doesn’t mean they should all be answered with the same level of punishment. It means that the men who do this need to accept responsibility for their actions, make amends, and change their ways — or else they risk a more severe punishment. After all, this is exactly what we do with other crimes and codes of behavior. Example: If you lose your temper in a professional meeting, you might be reprimanded. If you repeatedly do it, you could be fired.

We also have a responsibility to provide healing resources for a survivor, no matter what the specific action against them is, as well as validation of their experiences. In other words, we must allow a survivor the space to define their own trauma. In a criminal justice setting, this is partly why judges allow victim impact statements to be read at sentencing.

All of these elements are important because “this actually takes a lot of the burden off of a survivor,” Teicher says. “Because then it’s not up to them to be the ones holding someone accountable.” It becomes up to us, collectively, to set the standard and to then enforce it.

Our best hope, then, is that this moment in time becomes a jumping off point for a new era where victims feel safe coming forward, where initial claims of harassment are taken seriously so that patterns of harassment and abuse don’t ever form. This is the real promise of #MeToo. How do we get there?

The first step is to continue to believe women, but to not misunderstand the catchphrase of the era, which is essentially about listening to women in the same way we listen to men.

“When people say ‘believe women,’ what I take from that is they are instructing people to abandon the longstanding idea that you discount women,” Goss-Graves says. “Saying believe women in my mind, it doesn’t say don’t believe men. But it says that each should be believed. How you get to the facts of it is you actually conduct an investigation.”

The next thing we need to do is move beyond the court of public opinion. That court is useful as an awakening in the conversation about sexual harassment, and certainly it’s great for this kind of retroactive accountability for long-time abusers that we’re enacting right now. Because let’s be clear: The men losing their jobs right now are people with a long history who we have previously let off the hook again and again.

In order to move forward we also have to realize that for every high-profile person getting the public shaming they deserve, there are countless others for whom the court of public opinion isn’t a valid option. “This moment really, really can’t be a moment that is just about these individuals. Most employees are not going to have the opportunity to use public naming as a real accountability system. For those employees, it’s even more important that there be meaningful policies and procedures for them to come forward. There has to be a place for them to actually make a complaint,” Goss-Graves says.

Right now, there are widespread issues with employees facing retaliation for coming forward, training programs that everyone knows aren’t really working, confidentiality agreements that make it hard to get justice, and reporting and investigation procedures that are confusing or otherwise inefficient, Goss-Graves says. “It is my hope though that the attention provided in the cultural awakening of sorts around this issue will help prompt employers to revisit their own approaches.”

Already, there are efforts to tweak existing procedures on Capitol Hill, where a “Me Too” bill has been introduced to re-work the reporting and adjudication procedures for harassment experienced by congressional staffers. Goss-Graves expects statehouses and state employer agencies to take this issue up in 2018 as well, to force individual employers to look at their policies.

The final threat that we must watch out for is one of taking this too far, of letting our totally understandable pent up rage take us to a place where every single allegation big or small brings us to call for Gentileschi-levels of pure revenge. At the end of the day, no amount of accountability or punishment will ever truly erase the harm caused. The damage is done. “In the end, even justice doesn’t always feel good,” Teicher says. “It doesn’t change what happened.” So, in addition to making it safe for people to come forward in the first place, we need to improve systems of power, whether that’s our criminal justice system or individual employers’ procedures, so they follow what’s known as “Swift, Certain, Fair."

“This means clearly communicating that something is wrong and what happens if you do it. And then actually shifting things to follow through on the promise if you will,” she says. “We need to find a balance wherein abusers know with certainty that there will be consequences — from the community and from the state — for abuse. Research demonstrates that offenders are more likely to be deterred from offending behavior if they know that they'll be held accountable — and research also shows that certainty is more of a deterrent than severity.”

In other words, we don’t need to cut all their heads off to get what we want. But we do have to remember our own.