The #MeToo Movement Changed Everything. Can the Law Catch Up?

Earlier this month came the now largely forgotten news that Eric Schneiderman, the former New York state attorney general who resigned amid revelations he had beaten and demeaned a series of women, would not face any criminal charges. How was this possible?

His accusers had said he slapped them, choked them and spit on them, frequently during sex. In a recent op-ed article in The New York Times, one of the women, Tanya Selvaratnam, recounted how Schneiderman’s physical attacks had been accompanied by his efforts to humiliate and terrify her: He had called her his “property,” his “brown slave”; had told her she needed to fix her hair and her breasts and remove her surgical scars; he threatened to kill her if she left him.

When laws around domestic violence and sexual harassment emerged in the 1970s and ‘80s, they were meant to encompass an understanding of the broader dynamics of control and entitlement that informed insidious behaviors. But too often these laws were rendered in a way that limited their ability to impose consequences for the wide range of damages inflicted by patterns of manipulation and abuse. Within the constraints of the legal system, what Schneiderman had done, however seemingly horrific, is not necessarily actionable.

The reckoning around sex and power that has gripped the country during the past year has virtually transformed the culture, and the most malignant strains of male prerogative have been exposed and universally condemned. But the law has been slow to adapt to these changes. The Schneiderman case offers a clear illustration of the gap.

When Madeline Singas, the special prosecutor assigned to investigate the allegations, announced that Schneiderman would not be charged with a crime, she explained that some of the reported abuse fell outside the statute of limitations. While many have advocated the expansion (or eradication) of time frames during which victims can come forward, little progress has been made to accomplish this. The way the law is now, serial predators will continue to elude punishment, given that the crimes they commit often occur over a period that can span decades. Cases built on one or two recent accusations — ignoring a long-term pattern of abuse — easily fall apart.

Often, domestic abuse victims choose not to cooperate, but that does not seem to have been an issue in Schneiderman’s case. His accusers spoke to investigators, and as Selvaratnam’s lawyer said, they were willing to go forward with a criminal trial. So the question remains: With what crime might Schneiderman have been successfully charged?

Felony assault in New York state requires the demonstration of significant injury — a broken limb, a gunshot wound, serious harm to an organ. If none of these can be proved, a prosecutor might then move on to consider misdemeanor assault, and here, too, she might run into trouble. The definition of injury, in regard to this statute, revolves around substantial pain, but it does not include the mental anguish that so often distinguishes the life of someone who has been abused by an intimate. Beyond that, a prosecutor would have to prove there was intent to cause physical injury.

The requirement of “intent” allows nearly anyone accused of beating someone up during consensual sex to claim he was doing so for the purpose of arousal. When the allegations against Schneiderman, a Democrat, were initially made public, he maintained that he crossed no line. It was only after he was cleared that he essentially admitted what he had done, accepting “full” responsibility for his conduct and committing to “making amends.” An assault should not require so much qualification. “If someone is going to say that his intent was not to beat you up but to add ‘spice,'” said Lisa Smith, a former sex-crimes prosecutor who is now a consultant on gender violence, “well, then we want laws that don’t give defense lawyers the option of raising such a ridiculous argument.” Singas has, in fact, proposed them.

In the aftermath of the Schneiderman case, it would be comforting to think that, at the very least, law enforcement was efficiently expelling violent men from its ranks. Yet just this week a sex crimes investigator in the Los Angeles County sheriff’s office was arrested on the suspicion of raping a 14-year-old girl whose case he was handling. The man, Neil Kimball, had somehow managed to be assigned to a special victims unit even though, nine years ago, a woman had accused him of grabbing her hand and forcing her to touch his genitals (prosecutors citing insufficient evidence never charged him with anything).

This year, New York state passed sexual harassment laws that Gov. Andrew Cuomo called “the strongest in the nation,” but advocates and politicians have not been uniform in their agreement. “When I talk to people on the front lines, I hear that what we did was completely inadequate,” Liz Krueger, the state senator representing the East Side of Manhattan, told me. The Legislature, she said, needs to hear from businesses and lawyers and, most important, from victims and ultimately refine the laws pertaining both to harassment and assault.

“There is nothing in the protocol for new standards for colleges, standards that would require them to call the police and report a crime,” she continued. “That seems fundamental. They train students about what to watch out for, but if someone is going to rape you at a frat party, teaching ‘no’ isn’t always going to be the winning story line."