MeToo Doesn’t Seem to Have Changed the Way New York Prosecutes Sexual Assault

The majority of New York prosecutors’ offices rejected more sexual crime cases in 2019 than they did in 2009, which was eight years before the allegations against Harvey Weinstein would spur a nationwide movement thought to have transformed American life.

In many ways it has: MeToo has made many survivors feel more comfortable coming forward, and has changed the way people talk about their stories. But the movement has come up against the criminal justice system, which—as is suggested by the above statistic, reported by the New York Times—has barely registered the events of the last few years.

According to the Times, much of the problem lies with prosecutors’ hesitance to take up cases they aren’t sure they can win. And the factors that make sexual assault cases appear unwinnable remain largely the same.

“There aren’t really any third-party witnesses to these things,” Carl Bornstein, a former prosecutor at the state and federal levels, told the outlet. “This is tough sledding. The prosecutor has to assess: is this going to hold up under the scrutiny of 12 people?”

Yes—we have absolutely heard this one before. The Times reported that prosecutors may be especially weary about a case if it involves an alleged assailant the accuser knows, or if alcohol played a role in encounter; these were the cases that prosecutors rejected most often. In one instance, prosecutors told a woman who alleged being assaulted in her sleep that they could not move forward with her case because she had been intoxicated, which didn’t cohere with the state’s definition of being “physically helpless.” This, despite the fact that a student later recorded a call he received from his fraternity brother, who confessed to filming the woman and later admitted that he had in fact had sex with the woman while she was asleep.

And when they questioned her, the prosecutors seemed primed to doubt her, asking questions about her boyfriend, how much she had to drink that night, and why she hadn’t tried to fend off the alleged attack. In other words: textbook victim blaming.

Coupled with recent news of Bill Cosby’s release from prison, the Times’ report provides little reassurance to those who hoped that the criminal justice system might course correct. But the truth is that there is no better course for the system to take because all paths lead to incarceration, which has never once solved our societal ills. These revelations are just more incentive to look elsewhere for justice, and to create new infrastructure for accountability that doesn’t resemble courthouses and jails.