Harvey Weinstein is just the latest in a long line of prominent men to see his career and reputation go down in flames after decades of alleged abuses exploded into the public. Prosecutors are now reportedly investigating some of those allegations, and Weinstein may yet face criminal charges. (He has denied all allegations of non-consensual sex.) Whether he will be held criminally responsible hinges on a series of factors: The strength of the evidence against him; whether women are willing to testify and prosecutors willing to bring a case; and whether the alleged assault happened recently enough to be within the statute of limitations of the state in which it occurred.
That last factor is fundamentally unjust. Why should the state where a person is attacked determine how long a prosecutor has to press charges? We know that sex crimes are especially complex territory—legally and socially—and that sexual victimization remains darkened by shame and fear. Those who have suffered through it shouldn’t see their claims time-limited, and those who have committed these most awful and sadistic of acts shouldn’t escape justice just because the clock ran out.
Sexual assault is one of the most under-reported crimes in the country; it’s also one of the most intimate. Women are more likely to be raped or sexually violated by someone they know than by a stranger, and that intimacy creates barriers to immediate reporting—women are understandably hesitant to spark a chain of events they know may eventually send their husband, boyfriend, father, cousin, classmate, boss, teacher, or colleague to jail. Women are also tragically likely to assume responsibility for their own victimization, internalizing misogynist cultural narratives about women’s obligation to rebut or rein in men’s sexual excesses. And indeed, when high-profile cases like Weinstein’s make the news, many implicitly blame the victims: Why did she go into that hotel room? Why was she dressed provocatively? Why didn’t women speak out sooner and prevent others from being victimized?
Women are raised to second-guess ourselves and prioritize politeness over trusting our guts and acting assertively. When a woman is assaulted by someone she knows and trusts, the internal narrative can blur even the deepest sense of wrongdoing—he’s not a bad guy, so maybe I did something wrong—creating yet another barrier to surmount before she comes forward. This is especially true for young women, particularly those assaulted by more powerful men. Those men know women who depend on them are more malleable than women with greater social or professional power. This is true whether women are seeking to establish their careers, which was the weakness Weinstein is accused of exploiting, or whether they are simply trying to have a social life, the dynamic fueling many an upper-class campus rapist targeting freshmen. Predators know less powerful women are more likely to be afraid to speak out, because they have so much to lose.
Until, sometimes, they aren’t. Maybe it’s a Weinstein or Bill Cosby scenario, where a few courageous women ignite dozens of other stories. Maybe it’s an individual awakening, a woman finally able to listen to the little voice inside saying, “That was wrong.” Some women report sexual assault immediately. Many do not. Some take days, months, or even years. Their voices should still be heard in our courts of law.
This is already being accommodated in several states: California did away with their statute of limitations for rape last year, in the wake of the Bill Cosby trial, following a number of states that have done the same. But others still have narrow restrictions: In some states, it can be just three years. Sexual assault cases are even more complicated; the statutes of limitations depend on the severity of the attack. In New York, some of the acts Weinstein is accused of (like groping) would likely be misdemeanors. New York’s statute of limitations for most misdemeanors is just two years.
Sure, there are good reasons for statutes of limitations for some crimes. The longer the length of time between the alleged crime and the trial, the more evidence atrophies—memories fade, objects are lost, witnesses die or move on. Reconstructing all of that can be costly, or, more often, futile. And if a person made a terrible mistake in his youth, does it make sense to force him to pay decades later when he may be a productive member of society who has done nothing else wrong, who may have a family and dependents, whose incarceration may be much more socially costly than the initial crime?
For some non-violent crimes, this makes sense. Holding a now-middle-aged father responsible for a minor decades-old burglary, and incurring the cost (to the state, to him, to his family) of prosecuting and potentially incarcerating him is likely a poor use of resources.
This is not true of more serious crimes, like sexual assault and rape. Years-old sex crimes are no doubt difficult to prosecute, and the unfortunate reality is that prosecutors will never pursue most of them—not necessarily out of malice or neglect, but because evidence does deteriorate, memories do fade, witnesses do disappear, and you can rarely hang an indictment, let alone a conviction, on a decades-old recollection. This is not a flaw in our justice system, but rather a necessary protection for the rights of the accused.
But this reality doesn’t demand arbitrary line-drawing. If a prosecutor has the one-in-a-million evidence-rich decades-old case that she can prove beyond a reasonable doubt, why bar her from doing so? Bill Cosby, for example, has denied but stands accused of sexually assaulting dozens of women. Only one woman’s accusations, though, made it into criminal court. Others were time-barred by statutes of limitation.
Sexually violent crimes evince a cruelty that does not fade with time, motivated by a desire to hurt and dominate. Rape makes violent and painful sex—one of the most potentially pleasurable of human experiences. All forms of sexual violence sever the social contract; they involve not the loss of stuff, but a violation of the sanctity of the body, the safety of one’s existence within one’s own skin.
That creates a debt that cannot be repaid. At the very least, women shouldn’t see their efforts for justice foreclosed by a calendar.
Jill Filipovic is a contributing writer for cosmopolitan.com. She is the author of OK Boomer, Let's Talk: How My Generation Got Left Behind and The H-Spot: The Feminist Pursuit of Happiness. A weekly CNN columnist and a contributing writer for the New York Times, she is also a lawyer.
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