May 20, 2020 Feature

Lessons of the Harvey Weinstein Case

By Ann Farmer

At his March 11, 2020, sentencing, Harvey Weinstein still didn’t get it. “I’m totally confused,” said the Hollywood movie mogul, who had been found guilty of sexual misconduct two weeks earlier.

The jury, however, did get it, and unanimously found him guilty of third-degree rape and first-degree criminal sexual act. To reach that verdict, the prosecutors had to nudge the jurors past any number of culturally ingrained misbeliefs about sexual assault victims: fallacies like “real” rape victims fight back. Or if a woman meets a man in a hotel room, she is asking for it. Or a rape victim can’t be a victim if she maintains a relationship with her abuser.

“I was encouraged by the verdict,” says Jennifer Becker, deputy legal director and senior attorney at New York City–based Legal Momentum (formerly known as the NOW Legal Defense and Education Fund). “I’m hopeful that it means more prosecutors are willing to look at these cases [that they previously thought of as too difficult to pursue] as viable charges to pursue.”

Becker, who formerly prosecuted sex crimes in the Bronx District Attorney’s Office located in Bronx, New York, also thinks it could be a sign that “our jury pool is more educated about issues of sexual violence.”

The case against Weinstein can best be described as unique and groundbreaking. Weinstein, one of the most powerful film producers in Hollywood, co-founded the successful production and distribution companies Miramax and The Weinstein Company. A master manipulator and rampant predator, Weinstein had sexually harassed and assaulted women—primarily young actresses, models, and office assistants—for decades, with impunity.

Legendary among those in the film and television industry, Weinstein’s actions, and the acceptance thereof, confirmed that the casting couch phenomenon is still a reality. He also got away with it because he knew how to intimidate and silence others. Many of his victims feared retribution. For some, their careers stalled after he blemished their reputations. Others received settlements or were muzzled by nondisclosure agreements. But in 2017, both the New York Times and New Yorker magazine published exposés that outed his criminal behavior.

In the ensuing weeks and months, more than 90 women stepped forward with stunningly similar allegations of sexual assaults. They described arranged business meetings in hotel rooms where they would encounter Weinstein wearing a towel or bathrobe. Sometimes Weinstein’s business associates would escort the women to these meetings, only to suddenly evaporate, leaving them alone to defend themselves against Weinstein’s advances. He would ask for massages. He exposed himself and masturbated in front of them. He forced oral and vaginal sex on some. He refused to take no for an answer. A large, heavy man, he could easily overpower his victims.

The global #MeToo movement, which surged in the aftermath of the accusations, pressured the Manhattan District Attorney’s Office to take action, especially after D.A. Cyrus R. Vance Jr. had declined an earlier opportunity to press charges against Weinstein. But the case presented serious hurdles: New York’s statute of limitations prevented many accusations from being prosecuted. Numerous incidents occurred outside of New York’s jurisdiction. And some victims were trepidatious about filing a formal charge, fearing a potentially harsh grilling on the witness stand and the emotional trauma resulting from having to relive what happened to them.

Sexual assaults have commonly proven difficult to prosecute. To begin with, according to the Rape, Abuse & Incest National Network, Washington, D.C., only about one in four sexual assaults gets reported. Victims fear retaliation. Some are leery of dealing with law enforcement. Victims believe that police will look askance at a victim who had drugs or alcohol in her system or who willingly went to the perpetrator’s home. Law enforcement and prosecutors are more likely to devote time and resources where the allegations involve strangers, weapons, and physical injury than to cases involving sexual assault allegations. As a result, only about nine cases out of every 1,000 sexual assaults gets referred to prosecutors.

One example of the difficulty in pursuing charges occurred in 2015, when the Italian model Ambra Battilana Gutierrez filed a claim with the New York Police Department, alleging that Weinstein had groped her breasts and tried to put his hand up her skirt. Detectives required that Gutierrez prove her allegations by wearing a wire and extracting an admission from Weinstein. She courageously went through with the undertaking. Weinstein swiftly embarked on a negative publicity campaign to undermine her credibility. Vance reacted by backing off, taking heat from the #MeToo movement for not supporting Gutierrez.

So, when the Weinstein exposés publicly revealed the staggering extent of his criminal behavior, the D.A.’s office doubled down on building a case against him. Led by Assistant District Attorneys Joan Illuzzi-Orbon and Meghan Hast, they initially enlisted Lucia Evans, one of the sources quoted in the New Yorker article, as a primary accuser. Evans was an aspiring actress in 2004 when, she says, Weinstein forced her to perform oral sex on him. She also testified to that before a grand jury. Then cracks appeared in her story. She allegedly told a friend that she agreed to perform oral sex in exchange for acting opportunities, something that Evans denies. Her friend shared that contradictory account with the lead police detective. The detective, though, did not share it with the prosecutors.

Once this conflicting evidence was dredged up, Weinstein’s legal team requested Judge James M. Burke, the presiding judge, to dismiss the charge of criminal sexual act alleged by Evans. The prosecutors did not object. This misstep also meant that the prosecution lost the benefit of calling law enforcement witnesses to testify. The defense, meanwhile, gained an advantage by being able to raise questions of police misconduct.

By the time the trial opened on January 5, 2020, in a Manhattan courtroom packed with media and spectators, two other primary accusers had stepped forward to fill the gap, and the prosecution had amassed five other charges against Weinstein.

One count of first-degree criminal sexual assault was related to an incident in 2006, when Mimi Haley, a production assistant on the TV series Project Runway, says that Weinstein forced himself on her. One of the more descriptive allegations asserted that Weinstein pulled out Haley’s tampon and performed oral sex on her despite her objections. One count of first-degree rape and one count of third-degree rape arose from the alleged 2013 rape of aspiring actress Jessica Mann. In addition, two counts of predatory sexual assault—meaning that Weinstein had committed sex crimes against more than one person—were levied against him. But those charges only came into play if Weinstein was found guilty on either of the first-degree counts.

Mann’s relationship with Weinstein presented a formidable challenge for the prosecution. Mann came from an impoverished background, met Weinstein at a Hollywood party, and embarked on a relationship with him that she described as degrading and controlling. It included consensual, if begrudging, sex with him. On two occasions, she said he raped her. The prosecutors therefore had to convince the jurors that consensual and coerced sex can exist simultaneously.

“That’s a set of facts that a lot of prosecutors either are afraid to pursue because a jury simply can’t understand that or often it is just too difficult for juries to overcome the understanding of why that is,” Becker says.

To help explain Mann’s behavior, the prosecutor put an expert witness, forensic psychiatrist Dr. Barbara Ziv, on the stand. “I think that a good strategy on the prosecution’s part was not to shy away from that evidence,” Becker observes. “Just put it out in front. It’s part of the narrative, and we’re going to explain it through experts.”

Ziv addressed many misnomers concerning sexual assaults. She explained, for instance, that most sexual assaults are not committed by strangers and that victims typically do not resist their assailants. She also noted that it is quite common for victims to have continued contact with their assailants. It could be an attempt to make sense of the assault or they might be in denial or have other reasons.

During cross-examination, Weinstein’s attorney Donna Rotunno sought to depict Mann as an opportunist, manipulating Weinstein to her advantage. But Rotunno’s pugnacious style of questioning may have appeared as haranguing. It induced a panic attack in Mann, requiring her to take a break from the courtroom.

“What we find in general in jury trials is that [jurors] don’t really like that,” says Alameda County, California, D.A. Nancy E. O’Malley. “Make your point in an assertive way. But you don’t have to make your point where you are humiliating someone.”

Following a strategy similar to that used by the prosecution in comedian Bill Cosby’s sexual assault case, the prosecution also mobilized four additional witnesses—each of whom had allegedly been sexually assaulted by Weinstein—to show a pattern of “prior bad acts.” The incidents occurred outside of the jurisdiction of the current case or fell outside of New York’s statute of limitations.

One of the most serious predatory sexual assault charges involved one of these additional witnesses, the actress Annabella Sciorra. Thus, in order to obtain a conviction of predatory sexual assault, the jury would have to believe Sciorra’s account of Weinstein barging into her home and raping her in 1993 in addition to finding him guilty of either or both of the first-degree charges against the original victims.

The prosecution was treading on delicate ground by taking this approach of introducing uncharged crimes. It could result in an overturned conviction down the road. Another issue the prosecution faced was that Sciorra couldn’t recall the exact date of the assault and other key details. But she vividly recalled the moment when Weinstein pinned her arms above her head and raped her. She delivered several hours of emotional testimony before Rotunno endeavored to poke holes in it. Rotunno challenged Sciorra to explain how Weinstein was able to make his way past her building’s security. Why didn’t she report the rape? Couldn’t she have gotten away from him?

Whatever the reason, the jury clearly struggled with Sciorra’s testimony. They asked to reread chunks of it before ultimately acquitting Weinstein of those charges. One of them spoke to Inside Edition (a television newsmagazine broadcast on CBS) after the verdict and indicated that many of them found Sciorra’s testimony persuasive. “It was very convincing to a lot of jurors,” the juror said. But not all were convinced beyond a reasonable doubt.

The jurors did, however, find Weinstein guilty of first-degree criminal sexual act and third-degree rape. Two weeks later, when he was sentenced to 23 years in prison, it was hailed as a victory for the #MeToo movement. And because the trial attracted so much attention, it could easily influence future trends.

“What I hope,” California D.A. O’Malley says, “is that people around the country who are suffering in silence around their own sexual abuse will look at this and see that the victims that did step forward were supported by the system.”

Prosecutors may also feel more emboldened. As Manhattan D.A. Vance stated afterward, “Rape is rape whether the survivor reports it within the next hour, within a year, or never at all. It’s rape, despite the complicated dynamics of power and consent after an assault. It’s rape even if there is no physical evidence. Even if it happened a long time ago.”

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By Ann Farmer

A former producer/director for Court TV and reporter/contributor to The New York Times, Ann Farmer currently writes for various magazines about subjects ranging from law to pop culture. She’s based in Brooklyn, New York.