Harvey Weinstein's Criminal Lawyer Shares Thoughts on #MeToo

Last year, Harvey Weinstein hired criminal attorney Blair Berk to help him fight charges of sexual impropriety, and last month, Berk spoke to Haaretz and talked about how the #MeToo movement has gone too far.

In October, the New York Times ran a piece documenting Weinstein's alleged years of sexual harassment and assault, and after the story broke, the movie producer was accused by dozens of women of sexual misconduct. Eventually, he was charged with rape in New York state, and he has criminal investigations against him pending in London and Los Angeles. 

Weinstein’s hiring of Berk was a smart decision because she is known as an attorney that celebrities can rely on. She has represented Mel Gibson, Britney Spears, Lindsay Lohan, and numerous other A-listers, and she is currently the lawyer for Sylvester Stallone, who is also facing sexual misconduct claims.

Berk said that she is a feminist but that she thinks it's important that women take accountability for their own actions, such as exchanging sex for jobs with high-powered men. 

“As a feminist, this is a conversation that is important to me to have,” Berk said. “We deal with terms like sexual harassment and we talk inappropriate behavior, but we don’t discuss [the terms], not least because it’s complicated. True, we shouldn’t have someone with too much power in a workplace, for instance, abusing his power to be vulgar or to put his hand on someone who’s not interested, but it’s important we don’t conflate this with rape. These actions are not rape. They’re also not criminal. They’re certainly actions that need to be discussed, but not necessarily something that needs to be incriminating.”

Berk said that women who engaged in sexual acts in order to get something sometimes regret that decision but that should not be viewed as criminal because it is currently not a law.

“One of those very uncomfortable truths is that there are women who engaged in sexual contact with a man in situations when they’re not necessarily attracted to that man but that more powerful man was offering them something they want, advancement, the Golden Globe, something they want, and they decided to have that sexual encounter in order to get that. Intentionally, consensually and later regret that they did that. We can decide that that is a fundamentally coercive act and should criminalize it, but right now it’s not a crime and I believe it shouldn’t be a crime,” Berk said.

Berk said that the current climate is treating women like children, not responsible for their own actions.

“I believe one of the dangerous things about what’s happening here is we’re treating women as children. We are infantilizing women. It’s a thing that as feminists we don’t want to do, which is to claim that a woman doesn’t have the ability to choose,” Berk said. “And while it’s uncomfortable and while it’s a difficult truth people getting something from someone more powerful whether if the currency of sex, or whether if of doing something outside of their work in order to curry favor that’s not okay that there’s expectation from a more powerful person, but it’s not a crime. Unfortunately, in this moment we’re doing things that blur those lines.”

Berk's comments are interesting to me because I think she is presenting valid arguments that consensual acts should not be criminalized just because a person feels regret afterward, but I also think that men in power should not hunt for dates in the workplace. The reason for that is that women who say yes are usually rewarded with promotions or better treatment, and women who decline are punished by being dismissed or ignored. This unfair system would not exist if dating was banned in corporate environments or strict rules were in place and enforced. 

While the idea of banning dating in the workplace sounds extreme, technology giant Intel has been practicing this policy for years, and it has been overwhelmingly successful. The reason that it works is that people in all positions are required to adhere to it, and knowing that it exists and is enforced consistently stops any potential impropriety. 

In late June, Intel's CEO Brian Krzanich admitted that he had a consensual relationship with an underling, and he resigned from his post because the company policy was to not allow any non-lateral dating. The company's rules were outlined and no one, not even the CEO, was exempt, and this strict but fair rule curbed sexual harassment and enabled the employees at the company to work productively without the added stress of sexual politics. 

As people familiar with my blog have probably noticed, I am very much in favor of people embracing their sexuality, but one's sexual self and one's professional self generally can be and should be two separate entities.