Jill wrote this comment for the Times Brief.
If the criminal courts fail Weinstein's victims, the UK civil courts could step in
The level of collective determination to evoke societal change demonstrated by the victims of alleged assault by Weinstein must not be allowed to falter because the US prosecutors fail to pursue a criminal case because of the lack of witnesses to the charges.
Generally, there are no witnesses to sexual assault and rape because the perpetrator has arranged the situation to their advantage – supposedly in Weinstein's case, behind the closed door of a hotel room.
In criminal cases involving accusations of sexual assault, there is a high burden of proof on the accuser to prove their word against that of the alleged perpetrator who denies wrongdoing.
The defence calls on every possible angle of character assassination to prevent the jury from concluding guilt 'beyond all reasonable doubt'. Even when unconscious, perhaps due to an unnoticed rohypnol spike in her drink, the attractively dressed young woman, some jurors would conclude, had somehow signaled that she was 'up for it'.
The frustration and despair of Weinstein's accusers at the thought that legal justice may elude them will be immeasurable and may persuade future victims of sexual assault to wonder if it's worth the bother.
Ten years ago, I took a case of rape to the civil courts after the police were unable to pursue a criminal investigation against a millionaire sexual predator because he died in a car crash mid-investigation.
My client had been lured to the man's hotel room on the pretext of an interview for the 'opportunity of a lifetime' job running a model agency. Once there, she was plied with drugs and alcohol, raped and sexually abused. She finally managed to escape by phoning her boyfriend who alerted the police. The 39-year-old, worth around £25m, denied rape.
Civil claims for damages for rape are rare in the English courts but that doesn't mean they won't succeed. The standard of proof is lower in a civil than a criminal case - on the balance of probabilities rather than the criminal standard, beyond reasonable doubt.
The civil claim focused on the psychological after effects of the trauma – which the defence denied she had suffered - and, perhaps most pertinent for Weinstein's alleged victims, the damages awarded recognised her resultant loss of earnings.
Because two other women who had also been victims of the man's attempts to lure them to his hotel room came forward to support my case, the judge could conclude that the overwhelming evidence of the defendant's predatory behaviour towards women meant the victim was telling the truth. In other words, he simply believed the women.
If the US prosecutors balk at the enormity of what they must do, the civil court in the UK, may offer Weinstein's alleged British victims some hope of recognition and justice.
Image credit: Nick Step (Flickr: Rula Jabreal & Harvey Weinstein) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons
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