“Why were they silent?”: Should I be punished for harassment before the trial
EXPOSURE TO KNOWLEDGEES, SUBSIDIARY IN CHARACTERISTICS and rape continue. Harvey Weinstein, Louis C. Kay, Stephen Seagal, Kevin Spacey, James Toback, Brett Ratner, David Blaine, Lars von Trier, and even Mariah Carey — all of them were accused of varying degrees of harassment, and some even lost their jobs and hurriedly go. in rehab clinics. Until now, however, there is not a single verdict of the court, so it’s too early to say that someone will get a real time or must pay huge fines. We understand how the American proceedings on sexual harassment work, why the presumption of innocence does not always work, and many celebrities who have been accused of rape more than once get only a stain on their reputation.
Not one step back
A series of recent scandals are united by one important feature: many victims, bypassing the court, go straight to public space and tell about the violence in the media or, say, on a personal twitter. In the case of Weinstein, this was first evidence for The New York Times (for example, actress Ashley Judd and model Amber Battalan), and then individual press statements from Rose McGowan to Angelina Jolie.
In the future, these confessions should be used in court - investigators are obliged to study publications in the press. But the suspect's lawyer may ask: "Why didn’t you go directly to the police?" According to Shan Wu, a former attorney for sexual crimes of the US Department of Justice, there are no problems with such a sequence of events (first press, then court): specifically in the case of Weinstein, the list of victims is too large for the court to have any doubts.
In addition, public speaking means that it will no longer be possible to hide information (as opposed to going to the police). “As soon as the accusation leaks in the media, the suspect has no chance of resolving this issue outside the legal field,” said Galina Arapova, head of the Media Rights Protection Center. In general, threats to destroy a career or a generous check for silence automatically stop working, especially when it comes to big celebrities.
However, the current campaign in the press is in some sense unique. As a rule, victims of violence filed lawsuits, and only then will the media find out. For example, it was the same with Bill Cosby: law enforcement agencies had testimonies from more than ten women that a comedian raped them (women were unconscious) more than ten years ago, but the case was publicized only in 2015.
Why were they silent?
This happened due to the fact that in 2006, Andrea Constand, who initiated the proceedings with Cosby, entered into a pre-trial agreement with him, received a large compensation and was silent for a long time. Those accused of harassment, indeed, quite often manage to buy the silence of the victims. For example, Bill O'Reilly - in the past, one of the most famous TV presenters of the American channel Fox News, was tried to indict five former employees and guests of the program. However, $ 13 million temporarily solved the problem (interestingly, the company paid half the amount). They started talking about O'Reilly after the New York Times wrote about his harassment - then several women spoke publicly about the harassment by the TV host, and he himself temporarily disappeared from the TV channel.
Pre-trial (and quite legal) agreements helped Harvey Weinstein. According to The New York Times, at least eight victims of the producer agreed to money in exchange for silence. Harassment is related to civil wrongs, so such a deal can be concluded even if the court has already begun to consider the case materials, says Minna Kotkin, director of the Brooklyn Law School for Employment.
The victim may agree not only to remain silent about harassment and the fact of signing the document, but also to remove all evidence of a crime, for example, correspondence or video recordings.
According to Western lawyers, pre-trial agreements in cases of harassment can help both criminals and victims. This is not only a way to preserve the reputation of the company and its employee involved in crimes of a sexual nature, but also a kind of airbag for the victim. Firstly, the agreement guarantees the payment of monetary compensation (it’s not a fact that the court will convict), and secondly, it exempts it from the costs of legal proceedings, starting with the expensive services of a lawyer, ending with a possible harassment in the press and social networks. For many, a pre-trial agreement becomes a way to live.
But, as a rule, in the text of this document include items designed to protect the perpetrator. So, the victim can agree not only to keep silence about harassment and the fact of signing the document, but also to remove all evidence of a crime, for example, correspondence or video. In the opinion of civil rights lawyer Deborah Katz, this can subsequently greatly harm the investigation if the suspect is taken to justice.
Pre-trial agreements cause serious criticism, because in fact they allow the harasser to continue to break the law: to find new victims, to enter into agreements with them, and so on in a circle. The ethics of the famous NDA are also questionable (non-disclosure agreement, which is often signed when applying for a job). Women often agree to pre-trial payments in order not to violate the NDA and not to be considered as brawlers to future employers. All this only strengthens the stability of the system, which allows people with power and big money to successfully solve their problems, without bringing them to court. At some point, this system just cracked.
Power and threats
We are accustomed to consider Western justice as at least working, but no one has canceled the gray zone, where disagreements can be resolved not just by legal pre-trial agreement, but by threats or surveillance. Harvey Weinstein has been trying to prevent the disclosure of information about his crimes since 2006. To this end, the producer hired several private firms that investigate and collect information. One of them is the Black Cube, created by "veterans of Israeli intelligence." Thus, Weinstein wanted to prevent publications in The New York Times and New York Magazine: his agents went out to journalists, posing as freelancers, and tried to find out the details. Weinstein tried to prevent the publication of the book Rose McGowown "Brave" (which should be released in 2018): the actress a few years ago reported that she was raped by a famous Hollywood producer, but only to blame Weinstein right this year.
Agents also found women affected by Weinstein and apparently threatened them. McGowan admitted that she was experiencing attacks of paranoia, and actress Annabel Shiorra was scared because she "knew what it means when you are threatened by Harvey Weinstein." Gwyneth Paltrow and Kate Beckinsale, associate producer Emily Nestor, reported that threats from Weinstein said that negative media reports could have appeared with his submission. Actress Lauren Holly initially did not publicize harassment by Weinstein, because influential people advised her to keep quiet and not go against the producer. Thus, crowd effect and perseverance helped draw attention to a series of crimes of a sexual nature: single voices, as a rule, are not audible. By the way, even collective testimony is not enough. In 2014, The Atlantic correspondent released a column in which he admitted that he did not make an investigation about Bill Cosby, fearing to tell a lie, despite the fact that dozens of women reported that the actor had raped them in very similar circumstances.
Presumption of innocence and dismissal
Despite many public statements, the cases of Weinstein, Spacey or Seagal have not yet reached court. Speech in some cases (Spacey and Tobek) is about pre-investigation verification, and in others - about public censure, in connection with which many commentators started talking about the presumption of innocence of Hollywood stars, which is supposedly ignored.
Galina Arapova reminds that the presumption of innocence matters only for the court, everything is different with the media: “According to general ethical standards, journalists really should keep in mind the principle of presumption, but nobody forbids them to take any side or express their opinions. And certainly the legal presumption of innocence will not save from public condemnation. " In the case of self-righteousness, the accused may file a counter-claim for defamation or protection of reputation. According to Arapova, in the United States such legal practice is fully developed and, if there is evidence, the chances of winning are great; while she notes that the trial - it is always a big risk, and get involved in it is a man who really slandered.
There are no guarantees that, despite the long list of testimonies and victims, Weinstein, Casey and Tobek will receive severe punishment. For example, only one accusation against Bill Cosby can be considered procedurally.
The presumption of innocence is actually intended to protect the suspect from sanctions from those who have power over him (for example, according to Russian laws, a person cannot be dismissed during the investigation - only suspended from his duties). However, before our eyes, American top managers one by one leave their posts without making accusations against employers.
In high-profile cases of harassment, the same detail was found: it was stated in the contracts of the suspects that the company does not have the right to dismiss them because of allegations of harassment before the court verdict. Weinstein and O'Reilly found this item. Weinstein’s contract even spelled out specific amounts that he pledged to pay the company in case of lawsuits for harassment: $ 250,000 for the first case, $ 500,000 for the second, $ 750,000 for the third and a million dollars for each succeeding. Thus, the de jure producer was fired illegally - and he even tried to challenge this decision.
However, business in such cases proceeds from the fact that the accusation of harassment is a problem not only for a particular person and his reputation, but for the entire company. That is why, faced with harassment, employees first turn to the HR department or management to solve the problem. It is in the company's interest to do this quickly, so that the matter does not reach court or publication in the media. So, Uber had to order an investigation to the law firm Perkins Coie, which examined 215 complaints from employees of the company, from which 20 employees who had been involved in the offenses were fired (the investigation was started because former Uber engineer Susan Fowler told about discrimination).
Sexual harassment stories are too much for commercial companies. That is why the consequences of such actions can be spelled out either in the contract when applying for a job, or in the internal charter of the company, explains Arapova. “We are talking about influential people. If conditional lawyers Kevin Spacey noticed that he was illegally removed from work in the project, no one would be silent,” the lawyer said.
There is a federal law in the States that prohibits employers from discriminating against employees — this concept also includes harassment at the workplace. It is not surprising that after numerous admissions in the harassment of the company, they uncompromisingly refused to cooperate even with the most valuable personnel (after all, compensation can be demanded not only from the vendor, but also from the corporation). For example, the creative director of Vox Media, Lokhrat Steele, was fired, and the FX and HBO channels refused to cooperate with Louis C. Kay. Some of the top managers accused of harassment, quit himself - for example, the founder of the Besh Restaurant Group, John Besh, or the publisher of the Artforun magazine, Night Landesman.
For those who deny all the allegations, companies have launched internal investigations. For example, the CBS channel deals with accusations against actor Jeremy Piven (Piven himself denies everything), and DC Comics examines the possible misconduct of its editor Eddie Berngaz, who did not comment on the accusations of two women in any way.
No guarantees
Commercial companies can easily dismiss employees with a bad reputation, whose guilt is not formally proven. For example, it happened with the producer of the singer Ke $ ha. The singer filed a lawsuit in order to terminate the contract with the producer, who, according to her, subjected her to psychological and sexual violence. It’s still far from the final verdict, but in February 2016 the court refused to temporarily suspend the contract, and also noted that the singer did not provide evidence of sexual violence, for example, a certificate from the hospital. And yet this year, Sony pushed Dr. Luke from Kemosabe Records label management.
Why it happens? Reputation is worth the money. There are no guarantees that, despite a long list of testimonies and victims, Weinstein, Casey or Tobek will receive severe punishment. For example, only one accusation against Bill Cosby could be considered in a procedural order - all the rest were overdue. And the harassment is not at all considered a criminal offense - in fact, it is punishable only by heavy fines that are perfectly feasible for the kings of Hollywood.
As the events of recent weeks show, the business does not at all consider that it is worthwhile to hand over the matter to the mercy of the courts - they follow the rules, even when it would seem that an exception could be made. Suspending the release of a series with Kevin Spacey and even a full-fledged replacement of an actor in an unfinished film may seem excessive cruelty, but the film industry only demonstrates that the image is always converted into real money. And if the offended spectator does not come to the cinema on Spacey, the company must pay the future risks. In addition, the release of the film with a star, which is accused of a crime (the actor, by the way, does not refute it, but only apologizes), can be perceived by the public as a moral complicity.
And it's not just about money, but about a complete review of the reputation of the institution - in this case, public opinion can do much more than the verdict of even the strictest judicial arbitrator.
Photo: Getty images Summit Entertainment, Mango, Universal Pictures, RCA Records, GK Films, Paramount Pictures
