Posted inOpinion

A jury rejected Rotunno’s recycled rape myths – but have we?

Donna Rotunno has represented over 40 male defendants in sex crime trials, most famously Harvey Weinstein. Having only lost twice, she has been described as a ‘legal Rottweiler’ by The Guardian. The countless interviews she has given since she was hired, most notably for the NYT podcast ‘The Daily’, provide a clear illustration of how she sees sexual violence and the takeaway is this: women are responsible for getting themselves raped. She refers to sex crime trials as ‘the game’ and describes the thrill of winning them with a smile. She thinks hiring a female lawyer as a rape defence is a ‘good move’ because they ‘can get away with a lot more’. Said to be the most dangerous thing to have come out of #MeToo, Rotunno is the problem personified.

Rotunno’s approach to Weinstein’s case was extraordinarily conventional. In her defence of Weinstein, she relied on an existing relationship between the parties. In her account, any interactions between Weinstein and the women accusing him were consensual, and the claims were invented to manipulate and make money off a very powerful man. The ‘real victim’ narrative, one that accepts no response to terror that is not running and screaming, forms the bedrock of those rape trials that actually do make it past the post. She argues that “any reasonable person” can recognise that the response of Weinstein’s victims to immense trauma is not ‘normal’ and indicates that their claims are false. The “always friendly, sometimes romantic” communications between the accused and the accusers are her evidence that subsequent sexual assault and rape allegations were simply invented. 

The disbelief reserved only for the 90% of cases revolving around parties who had a relationship of some sort is far from uncommon. While, intuitively, it may seem strange to people who have not experienced trauma, maintaining some kind of relationship with the person who assaulted or raped you is not unexpected behaviour. It is something many survivors do because it normalizes a traumatic experience, making it feel more manageable. Circumstances vary enormously, but there are certainly many scenarios where social and economic pressure, for example in the cases of Weinstein’s victims, make pretending nothing happened a far safer option, both internally and externally.

 Rotunno puts emphasis on the importance of forensic evidence, believing that rape victims are the problem: they should ‘not wait as long’ and should ‘keep more facts handy’. This opinion is once again frighteningly common. The time taken for victims to come forward is used against them consistently. The fact that it can take months or years to reach a place where someone feels able to report to the police is disregarded by Rotunno and many others. This undermining of the enormity of trauma, and the countless ways in which different people respond to it, is a classic trope of a systematic neglect of sexual violence. 

But the crux of her argument is a problem with the idea of ‘automatic victimhood’ – one that is not monopolised by Rotunno. When someone makes an allegation, Rotunno believes that the criminal justice system ‘100% favours victims’ and she has built a niche out of the fact that people are ‘scared to be sceptical’. The argument, that we cannot assume that people who make accusations are telling the truth automatically, sits close to our legal system’s underlying principle: a person is innocent until they are proven guilty. Rotunno’s argument that the legal system is working the other way around is factually incorrect. But perhaps it should be. 

Sex crimes are already in a unique position within the legal system as the forensic evidence, in most cases, can be manipulated to match both versions of events and most cases lack witnesses. Our legal system and its stringent standards on burden of proof, which works effectively for many crimes, does not fit. An assumption of innocence for an alleged rapist is an assumption of guilt for the victim. Women who have the good fortune to actually take their rapist to trial have to publicly defend their lifestyle, their underwear choices, their friendly emails – to prove to a world that implicitly and explicitly tells them that they are liars.And if we are making the assumption that a person accused of rape is innocent until proven guilty, it follows that all sexual intercourse must be assumed to be consensual unless a party can prove otherwise. We are making an assumption that consent is automatic, rather than something that can be given and taken away.

In practice, this area of the law does not work. In the UK, only 1.7% of reported rapes are even prosecuted. 98.3% of the fraction of rape victims that do reach the decision to report to the police, are told that there is no recourse. Sex crimes have reached the point where they are essentially without sanction, and this is clear in the ease and nonchalance with which they are carried out. The reason #MeToo came about in the first place was because the legal system, and the wider world, do not accept stories of sexual violence where a victim is anything less than a paragon of girlhood, preferably white and ideally pretty but not obnoxiously so. #MeToo worked where the criminal justice system fails, and for many, untamed justice tastes better than none at all. 

Rowena Chiu, a former assistant of Weinstein, lamented the fact it took nearly 100 women to speak out and an enormous network of people to support them, for one serial rapist to be sentenced to 23 years in prison. Perhaps one of the more surprising beliefs Rotunno claims to hold is that patterns of behaviour are unimportant. On Weinstein’s pile of accusations, she stated that she did not factor them into her decision to represent him because ‘those allegations don’t matter’. But this landmark trial proves, if not nothing else, that solidarity is the key to achieving any semblance of justice. 

People are beginning to wake up to the fact there is a problem with how sexual violence is brought to court. These structural problems reflect our social patterns. Rotunno’s extreme examples and blasé tone when discussing the trauma that 85,000 women and 12,000 men experience annually (in the UK alone) make her line of argument unconvincing to most, but the backbone of her beliefs is a familiar one to all of us because it relies on the stories we have heard all our lives. Inbuilt misogyny is something that takes a lot of effort to combat and these myths, that you will only ever experience sexual violence if you wear a certain skirt and drink a certain drink and walk down a certain alleyway, are incredibly comforting. They make something that by its very nature is totally out of our control, feel controllable. But these myths serve to benefit rapists and belittle victims, and more importantly, they are blatantly false. 

The recent case of Reynhard Sinaga, who attacked at least 195 men in Manchester, illustrates just how flawed the logic is. According to Rotunno’s argument, the choice of said victims both to drink and to go back to Sinaga’s flat, means they should expect the possibility of sexual violence. Even where the victim is an ’18-year-old rugby player’ and not a woman who fails to meet the impossible standard society requires, it is questionable whether the court takes rape, and how dangerous rapists are, seriously enough. Rotunno’s narrative and the myths it is built on, are the reason why.

In short, for Rotunno, victims are to blame for sex crimes in almost every case. She says the reason why she has never been sexually assaulted is because she would “never put [her]self in that position”. She thinks a relationship between the parties, friendly or romantic, negates possibility of sexual violence taking place. ‘Absolutely women should take on equal risk and responsibility’ and where they are not prepared to be sexually assaulted by men they interact with; they are ‘kidding themselves’. To Weinstein’s accusers, she says that ‘if you don’t want to be a victim, don’t go to the hotel room’. The only change she deems necessary for those accused is that men should make women ‘sign a consent form’ before any kind of sexual contact. This is a change she is ‘dead serious’ about. 

But the choice of that jury to send Harvey Weinstein to prison, if not for life then for what will likely be the rest of his life, is part of a bigger picture. The ignorance surrounding sexual violence has begun to shift. As we examine and begin to deconstruct them, rape myths are starting to be seen as just that: myths. It takes tremendous effort to consciously unlearn the tales we have been taught, to feel our initial response and then to ask ourselves exactly where it comes from, but it is invaluable work.

There is a smear campaign here and it is not the one that we are being spoon-fed. Self-proclaimed ‘ultimate feminist’ Donna Rotunno is on the wrong side of a very important fight.