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Commentary: Bystanders who watched as Weinstein abused his power are complicit in his harassment

(Photo by Richard Shotwell/Invision/AP, File) In this Jan. 6, 2016 file photo, producer Harvey Weinstein participates in the "War and Peace" panel at the A&E 2016 Winter TCA in Pasadena, Calif. Weinstein has been fired from The Weinstein Co., effective immediately, following new information revealed regarding his conduct, the company's board of directors announced Sunday, Oct. 8, 2017.

I have never met Harvey Weinstein. I have no interest in talking with him. If half the stories circulating in the media are true, then Mr. Weinstein represents the very worst of male behavior. His actions are best left to prosecutors and the courts.

The allegations against Mr. Weinstein are horrific. What is of equal concern, however, is the behavior of those who stood by to let the abuse of power by Weinstein continue for decades.

At the moment, those who enabled and facilitated Weinstein’s abhorrent behavior are trying to lessen their role by issuing self-serving reports of surprise and disgust through their various spokespeople, agents and representatives. Each statement presents varying justifications for the enabling behavior. Some suggest they were forced to standby because of Mr. Weinstein’s financial power and ability to make — or break — a career.

Those enablers and facilitators — whether they saw, heard, understand — are complicit in Weinstein’s egregious behavior. Some of them, as we have come to learn, bystanders. Many knew but made the deliberate decision to ignore.

The issue of bystanders ignoring moral dilemmas in society is nothing new. I addressed the crime of complicity in the context of the Holocaust in my book, The Crime of Complicity: The Bystander in the Holocaust. I did so for two reasons: to honor my parents who survived the Holocaust and to directly address the question of complicity in sexual assaults. In the crimes I researched — the rape and murder of Sherrice Iverson in Las Vegas and the rape and sodomy of a college student at Vanderbilt University — bystanders willingly chose to turn their backs on victims who were in clear, immediate and acute distress.

For me, the crime of complicity is not a moral crime but rather a legal crime. The bystander, who willingly and knowingly turns his or her back, on the vulnerable victim has committed a crime. The only action I propose be imposed on the bystander is to alert law enforcement or first responders that another human being is in distress.

The failure to render assistance exacerbates victim peril. The requirement to call for assistance — when literally everyone has a cell phone or immediate access to a cell phone — is, frankly, a “low bar.” There is no expectation, much less demand, that the bystander physically intervenes. Heroism is not required or expected. That would impose a duty that goes substantially what I recommend.

Opposition to my proposal focuses on the practicality of implementation. Other voices suggest imposing a duty on a bystander cannot cross from the moral plane to the legal field because, so goes the refrain, “we know what to do.”

Both arguments are logical and understandable.

However, I suggest the following: conversations with prosecutors puts the lie to the argument that the crime cannot be prosecuted. That was made very clear when I discussed the proposal with prosecutors. Regarding the second argument: the age-old parable notwithstanding, history is replete with endless examples where, no, “we didn’t do the right thing.”

Martin Niemoller famously wrote:

First they came for the Socialists, and I did not speak out —<br>Because I was not a Socialist.<br>Then they came for the Trade Unionists, and I did not speak out — <br>Because I was not a Trade Unionist.<br>Then they came for the Jews, and I did not speak out — Because I was not a Jew.<br>Then they came for me — and there was no one left to speak for me.”

That is the essence of complicity and the consequences of willful complicity. The women who were victimized by Weinstein are just that, victims. The enablers and facilitators are complicit in the harm that befell that.

To express regret and remorse in the aftermath of the disclosures is, at best, crocodile tears. The failure to stand up makes one complicit. No more, no less.

And that, to seek to ensure that “enough is enough” is not only a mantra but actually how we live, must be understood to be a crime.

Amos N. Guiora is a professor at the University of Utah S.J. Quinney College of Law and author of “The Crime of Complicity: The Bystander in the Holocaust”

| Courtesy Quinney College of Law Amos Guiora

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