At the dawn of the #MeToo era, will changing attitudes towards sexual assault against women be enough to convict former Hollywood producer Harvey Weinstein?
Over 70 women have accused Weinstein of sexual assault, sexual harassment and rape (allegations he fervently denies). The deplorable conduct he has been accused of in Hollywood and other places has sparked national outrage and fueled the fire for the #MeToo movement. Women across the country have started to speak out against sexually exploitive and abusive behavior of powerful, wealthy men like Weinstein–and the world is listening.
But, despite his many alleged crimes and the public’s cry for justice, Weinstein could walk away unscathed by the criminal justice system.
Due to outdated sex crime laws not only in New York (where Weinstein is being charged with sex crimes against two different women) but across the country, the movie mogul could escape a damning prison sentence, experts tell The Crime Report.
In criminal court, prosecutors must prove beyond reasonable doubt that a sex crime did occur, and “that can be very difficult,” said Jeff Herman, known as a “go-to” lawyer for sex crime cases in Hollywood.
Herman acknowledged his doubts about the prosecution because the burden of proof is “very high” in these kinds of “he said-she said cases.”
Editors note: Herman is currently representing Dominique Huett and Kadian Noble, two of Weinstein’s accusers, in civil court.
Prosecutors will also have to prove the encounter was non-consensual, raising issues about the definition of consent under state law.
Proving Forcible Compulsion is Hard
In New York, rape is defined as “forcible compulsion” — compelling the victim through the use of physical force or the threat of immediate death, physical injury or kidnapping.
Many of Weinstein’s victims claim they were coerced into performing sexual acts, but Weinstein could argue they were not physically forced or fearful for their lives, lawyers warn.
“One of the problems in a case like this is [that] Weinstein will have the ability to argue that it doesn’t matter that the victim didn’t want to do what he wanted, because she eventually gave in,” said Wendy Murphy, an impact litigator and adjunct professor of sexual violence law at New England Law in Boston.
“And a jury might respond ‘she didn’t want to consent but she did eventually. Yes he pressured her, but it was consensual,’” said Murphy.
For example, actress Lucia Evans, one of the accusers in the criminal case against Weinstein, ‘sort of just gave up’ when she was being assaulted, she told The New Yorker.
Evan’s full account of the assault, as reported by Ronan Farrow in the groundbreaking New Yorker article “From Aggressive Overtures to Sexual Assault: Harvey Weinstein’s Accusers Tell Their Stories,” shows the loopholes Weinstein’s defense may be able use against her.
“He forced me to perform oral sex on him.” As she [Evans] objected, Weinstein took his penis out of his pants and pulled her head down onto it. “I said, over and over, ‘I don’t want to do this, stop, don’t,’ ” she recalled. “I tried to get away, but maybe I didn’t try hard enough. I didn’t want to kick him or fight him.” In the end, she said, “he’s a big guy. He overpowered me.” She added, “I just sort of gave up. That’s the most horrible part of it, and that’s why he’s been able to do this for so long to so many women: people give up, and then they feel like it’s their fault.”
Under US law, giving up could be seen as an indication of consent.
“In a civilized country, it wouldn’t be a debate about whether its acceptable to coerce someone and cause them to give up control of their body; it would simply be illegal to coerce someone,” said Murphy.
“But I am concerned that Weinstein’s lawyers will be able to argue ‘she said no, but then she changed her mind.’”
Weinstein’s victims’ feelings of distress, coercion or desperation may not be enough to convict him.
Will Victims Testify?
This sobering reality is juxtaposed with one facet of the criminal justice system that has proven to work in the #MeToo era: bringing in all the victims in to give their testimony.
In the Bill Cosby trial, five women were able to give their testimony in front of a jury and judge.
Cosby’s victims were brought in as “prior bad acts” to demonstrate his pattern of drugging women and then raping them. And it worked. Cosby was convicted on three counts of sexual assault for drugging and sexually assaulting Andrea Constand in 2004.
Under rule 404, multiple victims can be brought before a jury to show “character evidence, crimes, or other acts” and can be a saving grace in sex crime cases.
Without the five other women who testified, Cosby probably wouldn’t have been convicted, experts told The Crime Report.
“A one on one case would be very difficult to convict” said Jonathan Mandel, a Los Angeles criminal defense attorney and a former L.A. County prosecutor and public defender.
“It matters that all the woman stood up,” he said.
Although Weinstein has over 70 woman accusing him of sex crimes, due to statute of limitation laws, among other reasons, Weinstein is only being charged with crimes against two women. But the same statute of limitation laws do not apply to victim testimony.
Under rule 404, all of the women who have accused Weinstein might be allowed to give their testimony in front of the court.
Perhaps. Ultimately, the decision will come down to the judge. If Weinstein’s case goes to trial, the judge will have the final decision over whether or not character evidence can be used.
“That’s the ammunition,” said Mandel. “They [the prosecution] need 15 women to stand up and say ‘I wasn’t interested in advancing my career, this guy is an animal.’”
Mandel said he was sure the prosecution would bring in a brigade of victims, if permitted by the judge.
“It’s going to be really ugly if it goes to trial,” he concluded.
Megan Hadley is a staff writer for The Crime Report. She welcomes comments from readers.