Why Weinstein’s Lawyer Is Right About Hollywood & Wrong About Women

This weekend, as Hollywood got ready for the Oscars, its former biggest player – now its Public Enemy Number One – was having his say. Of sorts.

Harvey Weinstein’s lawyer Benjamin Brafman, a criminal defence attorney who has worked with everyone from Jay Z and Michael Jackson to noted sexual deviant Dominique Strauss-Kahn, gave an interview with The Times. In it, he claimed that his client Weinstein isn’t the problem at all, it's the Hollywood casting couch.

“The casting couch in Hollywood was not invented by Harvey Weinstein,” Brafman says. “If a woman decides that she needs to have sex with a Hollywood producer in order to advance her career and actually does it and finds the whole thing offensive, that’s not rape. You made a conscious decision that you’re willing to do something that is personally offensive in order to advance your career... that’s been the reputation of that industry [since] before I was born.”

Nice, huh?

What Brafman is asserting is this: that the routine abuse of women can be conveniently excused based on an established framework of institutionalised assault. It’s okay ladies, we’ve been doing this for years. Weinstein cannot be penalised for acting within this system. Essentially: Don’t blame the player, blame the game.

Yet in many ways Brafman is right; we should blame the game.

The Casting Couch – where a person of authority (usually a male producer) demands sexual favours from a subordinate (typically a young actress) in exchange for career advancement – is as old as the movies themselves. Sex was currency within the old studio system. Legendary screen icon Joan Crawford was even rumoured to have appeared in a 1924 porn film called exactly that: The Casting Couch. (Spoiler alert: They don’t sit on it and have tea.)

Hollywood’s studio system was a breeding ground for the Weinsteins of the future. An early precursor was the infamous studio head and MGM founder, Louis B. Mayer, who allegedly sexually assaulted countless stars, including Judy Garland; or movie moguls like Harry Cohn who, according to film historian Carrie Rickey, “wouldn’t cast starlets like Marilyn Monroe and Kim Novak unless they auditioned in bed.”

Monroe herself wrote about these Hollywood execs in her memoir: “So you sat with them, listening to their lies and schemes. And you saw Hollywood with their eyes — an overcrowded brothel.”

There has long been a bizarre but deeply embedded association between actress and prostitute. It goes back centuries to the blurring of the two – dancers and performers doubling as courtesans – or to the first women on stage in the 1660s, many of whom received patronage from rich men in exchange for sexual favours. Just think of English actress Nell Gwynn, who became the mistress of Charles II, or Nicole Kidman’s character Satine in Moulin Rouge.

Yet hundreds of years later, we still have this uncomfortable association of actresses and sex, as if it is a prerequisite of their career that they be seen nude, that they wear revealing outfits, that they, and their bodies, are public property – the price for their fame. Oscar-winning actress Rachel Weisz is quoted as saying: “People find out I’m an actress and I see that ‘whore’ look flicker across their eyes.”

The Pandora’s Box that Brafman has opened up here is one of a murky grey area of sex, power and complicity. His line of defence implies that these women willingly traded sex for career advancement, that the decision was theirs to make. Brafman is right to say that the Weinstein scandal has just unveiled Hollywood’s seedy underbelly, but he is wrong to assume an understanding of women’s choices in such a situation. The issue of any rape or sexual abuse accusation is consent. But what are the parameters of consent within a system this unjust? Where is consent in a system created to make women believe that their only currency is their body, that their only choice is sex with Harvey Weinstein?

Women have always been trapped in this system, whether they are a Hollywood actress or not. Actresses are not the only ones who face the very real threat of career destruction, or life-ruining alternatives. History is ridden with women making uncomfortable choices in uncomfortable times: married without assent, or used as sexual and political pawns in a society where marital rape was, shockingly, not considered a crime until 1993 [in the US]. Then there are the women who had to dodge sexual advances in the office, to put up and shut up, to turn a blind eye when a stray hand went somewhere it shouldn’t. Because what choice do most of these women, particularly those in far less economically favourable situations than most, have? So many are still, to this day, simply trying to get by in a society where the power dynamic is inherently rigged against them.

When the power is so unbalanced, the choices are not as easy as Brafman would like to think they are. Yes, there may well be countless actresses who have willingly taken this course of action, and we shouldn’t be blind to that. There are many who would point to the fact that exploitation can work both ways, and that some women have harnessed their sexuality for their own benefit, and with their own agency, for just as long as men have desired them. Like the 100 French actresses would be quick to point out; not all women should be painted as victims, especially not sexual ones.

Yes, Brafman is right to bring up the casting couch, but not in the way he would like. The seismic symbolic weight it carries when it comes to our view of women’s worth cannot be ignored, nor should its longstanding existence be used to exonerate Weinstein. Acting within a system of sexual harassment is no more excusable today than it was in 1937, when dancer Patricia Douglas was raped at an MGM convention; or in 1935, when actress Loretta Young was allegedly date-raped by Clark Gable and believed, right up until 1998, that it was her fault: “The woman’s job was to fight him off.”

The casting couch is an abuse of power at the highest level and, as the #MeToo movement has shown, a symptom of an endemic view of women as sexual property that goes far beyond La La Land. Jimmy Kimmel put it brilliantly at this weekend’s Oscars: “If we can work together to stop sexual harassment in the workplace, then women will only have to deal with sexual harassment all the time, in every other place they go.”

Hollywood’s systemic sexual coercion is inarguably a problem, but it’s not an excuse. It certainly should not be Harvey Weinstein’s get-out-of-jail-free card.