This is an unseen practice in France, but usual in the United States. The majority of the women who have accused Harvey Weinstein of harassment, sexual assault or rape are about to reach an amicable financial agreement with the fallen Hollywood producer, the cause of the scandal that triggered the #MeToo movement .
Wednesday, December 11, the New York Times and the Wall Street Journal revealed the agreement which, if validated by judges, provides for the payment of about $ 25 million to dozens of women. Such a financial agreement would therefore put an end to almost all civil proceedings against Harvey Weinstein – his criminal trial is set to begin in early January. This mode of settlement of judicial conflicts is a particularity of the United States, which is inapplicable in the French legal culture.
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"Pragmatism" in view of the prospect of a trial
The civil lawsuit against Harvey Weinstein resulted in negotiations between three parties: the former producer and his lawyers, the plaintiffs and their lawyers, and the local attorney's representatives. Objective for everyone: to reach the best possible agreement, the complainants fearing that the accused will be insolvent after a trial that can be very expensive.
For Claire Joachim, lecturer at the University of Poitiers and a specialist in comparative law, the two parties are "Very pragmatic", "better for them to have recourse to an agreement (financial) amicable, potentially cheaper and shorter that a trial, that it is possible to lose. A man is better than two you'll get somehow. The defense can have a lot to lose in a civil lawsuit, especially in front of a popular jury, often very generous in damages. "Weinstein has every interest in not going to trial," confirms Claire Joachim.
American justice, she "Encourages litigants to amicable remedies". "There are proportionally twice as many litigations that come before the courts in the United States as in France", says the lawyer. American judges therefore prefer to sign agreements negotiated by the parties rather than hearing lengthy trials.
Mistrust vis-à-vis the institutions
If Americans are "Very procedural"adds Claire Joachim, "The American intellectual climate is imbued with a strong mistrust of bureaucracy and institutions". Over-the-counter trading is thus preferred for settling disputes. "In liberal culture, develops the essayist and former magistrate Antoine Garapon, it is considered that if one is old enough to commit crimes and offenses, one can take responsibility for them. "
In France, the state is rather seen as protector. "In the United States, a protective state is an abusive statesays Claire Joachim. The state must not interfere in particular cases. " Harvey Weinstein's criminal trial, scheduled to begin on January 6, 2020 in Manhattan, New York, involves two women, one of whom is anonymous. And in criminal cases the jury must convict the accused if he finds him guilty "Beyond a reasonable doubt"explains the lawyer. The outcome is therefore rather uncertain, unlike compensation.
The contract rather than the authority
In France, the criminal justice is the third, the external authority that decides, which "Neutralises the balance of power", analysis Antoine Garapon, also producer on France Culture. In contrast to the United States, where, he explains, "We make law from the balance of power". "All that is negotiation, recourse amicable, self-regulation by the contract, it is in their DNA", continues Mme Joachim.
"Balkany in the United States, it would be over, Mr. Garapon amuses himself. He would say to the judges "I cooperate, I deale my reduction of prison sentence. You won, so we make it". " On the other side of the Atlantic, it is up to each party to prove their case during the civil trial; "If the battle is bad, we negotiate and cooperate. "
Actress Katherine Kendall, assaulted in 1993 and involved in the deal, ruled it was not an agreement "Ideal" but explained not knowing how to pursue Harvey Weinstein otherwise. "I do not think a better deal can be found," also added the lawyer of another complainant.
Updated on December 13th: inaccuracies were corrected in the article.
