The power of victims who settle Why martyr yourself when you could get money?

It’s two years today since the #MeToo movement brought down its biggest monster: on February 24, 2020, Harvey Weinstein was convicted on two of five charges against him, including rape in the third degree.

Weinstein’s guilty verdict remains unusual. Despite the precedent it set, and successful efforts to reduce the stigma of reporting a sexual assault, most accused rapists still never see the inside of a courtroom. It’s not just that criminal prosecutions of sex offenders are few and far between, owing to the difficulty of proving a crime that usually leaves neither witnesses nor physical evidence. Even civil lawsuits usually end before trial: with a mutually agreed-upon settlement.

Settlements, and the NDAs that often accompany them, have long been a thorn in the side of those who want to see sexual assaults taken seriously and punished in the same way as other crimes. Weinstein’s ability to pay off the women who threatened to sue him for sexual harassment — and the women’s willingness to accept money in exchange for their silence — allowed his predatory behaviour to continue unchecked for ages, an open secret that actually acted as the punchline to many a Hollywood in-joke. And while the #MeToo movement might have ended Weinstein’s reign of terror, it hasn’t ended the practice of paying victims to shut up and go away.

We’ve been reminded of this most recently with the resolution of Virginia Giuffre’s lawsuit against Prince Andrew, Giuffre having agreed to settle for an undisclosed sum. Although the media response has been painstakingly charitable to Giuffre, suggesting that the settlement is close enough to an acknowledgment of wrongdoing on Andrew’s part, and she has good reason to be satisfied, one still senses the disappointing spectre of the trial-that-never-was lurking unrealised in the background.

After it was reported that he had demanded a jury trial, there was much speculation about how he would perform on the witness stand, some of it almost gleeful. But unlike Weinstein, Andrew will never suffer the humiliation of a trial, never be subject to excruciating questions under penalty of perjury, never have the stain of a guilty verdict affixed permanently to his name. An expression of regret is still not an admission of guilt, no matter how you slice it. Giuffre’s choice might be good enough for her, but it leaves a number of questions unanswered.

The question of how best to make men answer for the sexual violation of women is age-old, a conundrum that humans have been trying and failing to solve since the dawn of time. The Bible, for instance, suggests punishing rapists by forcing them to marry their victims, a “you break it you buy it” policy rooted in the archaic notion that a woman deflowered, even against her will, has been stripped of her most vital asset.

Until a woman was recognised as a person with bodily autonomy, sexual assault was seen as a crime against her keeper — a husband or father — rather than the woman herself. It’s an idea that is spectacularly offensive today, dehumanising and trivialising at once. There’s a jaw-dropper of a moment in Ridley Scott’s The Last Duel, a film based on a true story and billed as a sort of fourteenth century #MeToo saga: the heroine Marguerite is informed that her rapist will only answer for what he’s done if her husband is willing to bring charges for her defilement as his property. In reality, she would undoubtedly have been aware of this fact already; a male character only needs to explain it to her for the benefit of an audience who might not have realised how bad the bad old days actually were for women. It’s not Marguerite’s suffering that must be answered for, but her husband’s wounded ego.

The Last Duel was meant to be an Oscar contender, but instead of accolades and nominations, the film was scrutinised for its #MeToo relevance and met with questions about whether its content was meant as an apology of sorts for its stars’ former affiliation with Hollywood’s most notorious sex offender. (Matt Damon and Ben Affleck, who wrote the film, won a Best Screenplay Oscar back in 1998 after Weinstein rescued their script for Good Will Hunting from production purgatory.)

Damon dismissed that notion, instead citing the real Marguerite’s heroism — continuing to speak truth to power, even though her husband’s loss in the titular duel would have seen her burned at the stake for bringing a false accusation — as the impetus for making the movie. And right on: after what she went through, Marguerite deserves better than to have her story subsumed into a redemption tour for male filmmakers who are discomfited by their one-time relationship with Harvey Weinstein.

In highlighting the horrors of sexism in the fourteenth century, and one woman’s courage in the face of them, The Last Duel shines a light on the ways in which things have changed — mostly for the better, but not entirely. Implicit in our admiration of Marguerite is a sense that this, really, is how a victim should behave: speaking truth to power at any cost, even if it means sacrificing her own life in the process. Why? Because we, the people, want to see justice. And even in a post-MeToo world where we treat sexual assault with the seriousness it deserves, justice has nothing to do with ensuring a good outcome for the victim; all that matters, all we care about, is that perpetrator meets a bad end.

This desire, not just for punishment but the public spectacle of a brutalised victim standing up and demanding recognition, has reigned throughout the contemporary quest to topple predatory men from their positions of power. Witness the lionisation of Christine Blasey Ford for her choice to testify publicly against Brett Kavanaugh. See the two books written by the journalists who exposed Weinstein, in which the women who spoke on the record, despite the risks and their fears, are rewarded with glowing profiles (while those who were, by implication, too cowardly to speak out sometimes seem like roadblocks in the path to justice). One of the key sources, Rose McGowan, wrote a memoir that was called simply: Brave.

For a period of time, the #MeToo essay was a genre unto itself, as women laid bare their sexual trauma for an insatiable, slavering audience. The movement demanded martyrs: the more a woman suffered to tell her story, the more heroic she was. And implicit in this conversation was that those who didn’t destroy their lives for the cause — who stayed silent, who took money, who signed NDAs — were the opposite of courageous, even selfish, allowing the men to get away with it and perhaps even enabling them to do it again. A peculiar twist in the Virginia Giuffre story is that once she stopped pushing for a trial and accepted a settlement, the greatest praise for her bravery came not from the media, but from the man she had accused.

The desire to punish rapists comes from a good place, of course: a necessary correction to a system that too often failed to punish men for sexual assault. But, in our all-consuming quest to punish the man, the woman he hurt is once again forgotten. Like Marguerite’s husband, we pursue justice in the victim’s name, but not her best interests. No longer is rape seen as a property crime; it’s more traumatic, more terrible, on a par with murder or perhaps even worse — and the man who did it has to pay. But the very idea of compensating the woman seems impossible, given the magnitude of the offence.

And so, in our attempts to construct a new narrative around sexual assault, we have managed to reinforce the worst conclusions of the old one: where a rape victim used to be seen as so debased by the experience that she could no longer move in polite society, now we imagine her pushed to the margins by the magnitude of her trauma. The nature of the damage has changed, but the song (and assumption of irreparable ruin) remains the same. Like the Biblical woman deflowered, the victim can never be whole again. No, she’s not dead, but the unspoken subtext is that she might as well be — and so, like the victim of a murder, the system seeks only to avenge her.

But unlike the murder victim, the woman who’s been sexually assaulted still has a life to live. And what if her vision for that life doesn’t involve sacrificing herself a second time over on the altar of society’s thirst for vengeance? What if a trial, traumatic in its own right and with no assurance of a good outcome, is something she’d rather not endure? What if she prefers to sue, and settle, in a more private process that centres her desires and offers material reparations for her suffering?

Ultimately, Weinstein’s victims got both the satisfaction of a guilty verdict and the recompense of a financial award, albeit one litigated (and hence reduced) by the bankruptcy court. There’s a poetic justice there: Weinstein extorted sex by promising success and stardom for those who cooperated, alongside the threat of financial ruin if they didn’t. For him to end up incarcerated and destitute, while the women he harmed walk away with millions, feels like the proper conclusion.

But the victim who keeps on living after being assaulted, let alone one who demands compensation in order to live well, remains deeply inconvenient to a society that wants to punish its criminals with little thought for the people they’ve hurt. When all is said and done, it’s the bad men, not their victims, who we tend to remember. And so, rather than heaping scorn or judgment on women who settle out of court, who seek reparations on their own terms, maybe we should see them as taking back something vital: their agency, their freedom to move forward, and their right to decide how trauma does (or doesn’t) define their lives.

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Kat Rosenfield is an UnHerd columnist and co-host of the Feminine Chaos podcast. Her latest novel is You Must Remember This.

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