The ongoing rape trials of Harvey Weinstein might not involve a higher education setting, but they do inform and exemplify some of the most pressing issues in Title IX cases: The extremely high importance placed on credibility, vague notions of where consent begins and where it ends, and the complications that are created when the accused is in a position of power.
Weinstein Case Will Hinge on Credibility Issues
It is not uncommon for allegations of sexual misconduct to rely heavily on the credibility of the accuser and the accused. They will both have conflicting versions of the same story, and there will only rarely be witnesses to corroborate more than the most basic details of the alleged encounter.
This is why criminal trials for sex crimes so often have a parade of character witnesses. Each side wants to undercut their opponent's credibility. This can mean calling witnesses who have seen the accuser or the accused lie or be dishonest, or who have evidence that there is an ulterior motive. It can then mean calling additional witnesses to undercut the credibility of the first round of character witnesses, and so on.
But that's in a criminal trial. Title IX cases have a far lower profile, with hearings that can take as little as an hour. Credibility challenges are far less intensive, especially as schools and victim advocate organizations push for less cross-examination.
The Blurry Line Between Consensual and Nonconsensual Encounters
Allegations of sexual misconduct have yet another wrinkle to them, though. It's not just about whether the conduct happened, or not – it's also about whether it was consensual.
Details from the Harvey Weinstein case draw out how tricky it can be to draw that line. One of the women accusing Weinstein of rape, Jessica Mann, claims that she had a 5-year consensual relationship with Weinstein. Nevertheless, she claims that Weinstein raped her twice.
Power Imbalances Can Complicate Consent
A key component in the Weinstein case makes consent even more difficult to determine: He was in a position of power over the women accusing him of misconduct. In fact, that element of the case is what is making it so prominent – a powerful man allegedly using his position for sexual favors.
However, as Weinstein's defense lawyer is pointing out, that very position of power may actually undermine the alleged victims' claims that the sexual encounters were not consensual. She has argued that the sexual encounters were “transactional” and were attempts by the women to score movie roles that they otherwise might not have gotten.
While the power imbalances are obviously different in college than they are in Hollywood, they still exist when the alleged perpetrator is a faculty or a staff member.
Title IX Defense Lawyer Joseph D. Lento
Even though it is a criminal trial, the Weinstein case can shed light on some of the most important aspects of Title IX cases in college.