Harassment itself doesn't seem to be an act the state can actively prosecute
Ya, that surprises me also. I think I am again being thrown off by the differences in the US and Canadian law. Most of the time they are so similar that they are almost interchangeable. But clearly there are some key differences.
Harassment can be a criminal offence here.
That changes things, but I'm not sure how much it improves them. I guess that explains why the US had to institute 'stalker' laws, if there was no criminal laws outlawing harassment. The end result is still a wealthy person paying away all consequences, and a poor person facing ruin. Less extreme, but still not ideal.
This method of paying out lottery sized winnings also greatly encourages false accusations, or inflated accusations.
While I have a respect for the ideas and traditions that went into the creation of modern law, I think it is long past time for a code rewrite, from scratch. There are core aspects of the system that are broken and can not be fixed.
The blurred division between criminal and civil civil, should be clear. Right now some criminal maters are handled as civil. It also allows a case to sometimes be tried twice. Once in criminal, then in civil.
Also the advocacy foundation is flawed. Every role is intended to be biased, and is left with a motivation to distort the facts. Except the judge, who is the only one that does not try to independently gather any information, and has to rely on data from biased input.
I'm rambling a bit here and getting away from the topic. So..
Weinstein probably committed sexual assault at some level, by rubbing himself on them, blocking the door, stuff like that - at those kinds of points, he probably crossed the line from harassment into assault, and probably could (and should) face charges.
I would add that a key element with him is that he was indeed in a position of power over these women. He used that power to coerce the women into sexual acts, or keep them silent about his assaults.
I think it is important to separate the 'creepy' or 'weird' from the criminal. So I don't think it really matter what he was doing. What matters is if he had consent, and was he using coercion (his power/position). It doesn't really matter much with Harvey because he's a scumbag in every way, but it becomes relevant as more and less clear accusations come out about others.
Kevin Spacey and Roy Moore (senatorial candidate from Alabama) probably also fit into assault as well, as I believe both groped others as well, which probably crossed the line into assault.
I haven't read anything about Roy, but with Spacey I think the burning is premature. It looks like he is probably guilty of something. But there are important facts missing that could change things one way or another. From what I know (not much), he was accused of aggressive hitting on a man (at a party?). He got handsy and there was some (wrestling?) until the man broke away and left.
That could describe something sinister, or it might be describing some good fun with a misunderstanding and then rejection. It's hard to know without interviewing them both. So I thin more info is needed before it can be determined what lines (if any) he crossed.
He will never get that trial though. He was convicted the moment the headline was printed.
Louis CK had consent for everything he did, and was not in a position of power over them. Flirting or even awkwardly and poorly hitting on someone is not harassment. Harassment is continued unwanted behaviour. Louis always stopped when asked.
He is guilty of nothing. Except having an odd fetish.
I don't think it's quite the epidemic you make it out to be.
I would still argue it is. In this context, not so much. But it is still a system that portions out defense based on how much the accused pays.
A person with a team of high priced lawyers always has a reasonable probability of beating the charges, even when guilty.
But someone counting on duty council always has a reasonable probability of being found guilty, even when not guilty.
When the ability to pay for council is arguably more important than whether the accused is guilty, things are broken.
Thanks for the tag. I might have just passed it up without it. I actually just heard about this today on my way to work. As I said before, I like law (as a general subject) and legal matters, and court procedures, and that kind of stuff, so this is really interesting to me, so I like it a lot.
So, just to start off -
By and large, I agree. I think the design is not terrible, I'm sure improvements can be made (it's a patchwork that's over 700 years in the making, going back to medieval English times, which many "givens" of the law in America come from), but the basic premises, basic ideas, all seem at least decent. But it's the perversion of those things that create the trouble...
...and honestly, so many other things. I'm sure we could both list a dozen things wrong here and there.
But moving on to the issue at hand. I thought about it and realized that I didn't know for sure what an NDA could and couldn't prevent disclosure of. I felt confident there were limits on it - saying "I was under an NDA, I couldn't report the murder" definitely didn't feel like it would fly, but I thought certain things might be able to fly. So I wanted to dig a little bit.
The first thing I found was this Atlantic article, conveniently written just last month in the wake of the Harvey Weinstein stuff. It talks about NDAs in the workplace, private arbitration instead of civil court cases for harassment, and things like that. It was informative, but didn't quite answer the questions for me. It's not a bad read if you want to take the time.
So, going back to my search, I looked for more information about sexual harassment in general. I was curious what "level" or "amount" of harassment/exposure/unwanted advances you needed to constitute an actual crime. I was also curious if you would be found in violation of an NDA if you gave information about that crime to police. I kept searching. I found a little more here and there about workplace stuff, HR responses, civil cases, and so on. None of it was really what I was looking for.
On a hunch, I decided to point-blank find out what exactly constituted a crime of sexual harassment. Which brought me to this site, FindLaw.com. And I was actually shocked by what I read (emphasis mine).
This actually surprised the hell out of me. Harassment itself doesn't seem to be an act the state can actively prosecute you for, although it can be the basis of a civil tort. Curious, I checked out sexual assault, to see what it said.
Other sites I found supported this position. A law firm based in New York state, I believe. And CriminalDefenseLawyer.com.
I think this paints a clearer picture of things (although some bits are murky for me still), and we can look at some of the different recent allegations in a different light now; with this we can probably parse which ones committed a crime that can be prosecuted by the state, and which ones didn't.
We can go back a few years first with Cosby - drugging girls and then raping them (or similar) is obviously multiple crimes, and there's really no question there if we accept the stories as told at face value. Weinstein probably committed sexual assault at some level, by rubbing himself on them, blocking the door, stuff like that - at those kinds of points, he probably crossed the line from harassment into assault, and probably could (and should) face charges. Kevin Spacey and Roy Moore (senatorial candidate from Alabama) probably also fit into assault as well, as I believe both groped others as well, which probably crossed the line into assault. Louis C.K. is probably safe from jail here, actually - he didn't touch them, force them to touch him, and they were never blocked from leaving, verbally menaced, or anything like that. It seems he is in the "harassment but not assault" category, although IANAL, so I can't say for sure. But it seems like it at a glance.
I feel like all that kind of brings doubt onto the premise of your point. "Sexual harassment is a criminal charge" isn't really an accurate statement - it's more like, "during sexual harassment something could occur that is also a crime on its own, likely sexual assault; but harassment on its own is not enough to warrant jail". So I think the idea that the rich are frequently buying themselves out of prison (at least in harassment instances), is largely untrue here. That's not to say it never happens, I'm sure it likely does here and there, but I don't think it's quite the epidemic you make it out to be. But then both Clintons, Weinstein, Spacey, George Takei, and others are still walking around, so who knows. But I think it's more likely connections and influence are the things that get you out of prison rather than money - but the three are so interconnected, it's hard to tell them all apart.