The controversy goes on about what to do with the increasing number of allegations against Harvey Weinstein (and now what appears to be countless others) and singer R. Kelly. Kelly has been accused of running a cult with its primary followers being barely legal teenage women. Weinstein entered a rehab clinic in Arizona and is said to be out of the country seeking additional help. There is more to come with these stories, but the question that is on many people’s minds is: Should guys like Weinstein and Kelly be forced to serve jail time? And we only bring up these two names because it seems they are way more complicit than most names out there right now. Bill Cosby is probably the closest but it appears his actions, while absolutely despicable, aren’t as egregious as Weinstein or Kelly’s.
The first reality is that both men have been found guilty in the court of public opinion. The more women who come forward and the sleazier the allegations, the more the public will be screaming for some type of justice, which is surely to require some type of prison, not jail, time. Their actions are heinous enough to require some loss of personal freedom and financial penalty in a civil legal action against each of them.
However, the court of public opinion is not a part of the American legal system. In these cases, it may weigh against the demand for them to serve any jail time at all. In Weinstein’s case, New York authorities investigated him on a complaint but concluded there was insufficient evidence to arrest and prosecute him. The time between Weinstein’s accuser coming forward and the beginning of that investigation was significantly shorter than these recent events. The mounting number of allegations that have come to light over the past weeks have only started the investigations, and a court date is still a long way off. As guilty as Weinstein might be, making a legal case against him will be difficult and expensive.
If faced with arrest and prosecution, Weinstein might opt for a bench trial because it would allow him to escape the wrath of public opinion. No jury means the case would be decided primarily on its legal merits, and there is where the considerable amount of time it took for the victims to come forward could help him avoid any jail time — if he was found guilty at all. Memories fade and facts change in the minds of witnesses over time: these are the type of things defense attorneys thrive on.
Let’s say that justice is to be served in both cases and both men are required to serve jail or prison time. The next question is how much time would be a fair sentence. The outraged and aggrieved would be screaming for life sentences, while cooler heads would have to deal with future trials and prosecutions involving similar cases of sexual assault and abuse. If these two men are the tip of the iceberg, what will be the fair sentencing for those hidden underneath the murky waters of entertainment, business, and political power? It is generally agreed there are more people in power, primarily men, who have abused their power and their victims for decades. Weinstein and Kelly just happen to be the focal point of the outrage at this time in history.
A reality not mentioned much during the finger pointing and venting towards the two men is that the entire situation is one massive mess. Most everyone agrees that Weinstein and Kelly are guilty from a moral perspective, but the fact that the victims remained silent for decades makes any legal outcome highly questionable. If it was that easy, both men would be sitting behind bars right now awaiting trial. While accusers continue to come forward, there seems to be a lack of civil actions against the men. A $5 million lawsuit has been filed against Weinstein’s company.
Per a Lindley Law, PLLC blog post
“In California … the criminal statute of limitations on rape and sexual assault was 10 years up until … Governor Jerry Brown signed a bill that eliminated the statute of limitations on any rape or sexual assault that occurs after January 1, 2017.”
It is important to note that the recent change to the California law only applies for acts that occur in the state. Most of Weinstein’s criminal actions took place in California, and no one has come forward claiming any assault took place during 2017.
The current evidence against Weinstein and Kelly are convincing enough for the two to be permanent social pariahs for the remainder of their lives. Unlike Roman Polanski, both are American citizens, so deporting them is not an option.
Whether the two men should serve jail time has an easy answer. What also has an easy answer is how we got to this point in the first place. The phrase “an open secret” has been bandied about with Weinstein, and actresses decided their careers and money were more valuable than personal honor. This is an “inconvenient truth” that has assaulted the moral conscience of a nation, and one that is focusing on the actions of one or two when almost everyone is guilty of looking the other way. Sexual assault and abuse are first moral crimes, and in the process become criminal actions. Everyone who looked the other way is now getting their face time through moral preening in the media — social and otherwise. But the way things stand now, the guilty will go unpunished.