At producer Harvey Weinstein’s arraignment on charges of raping one unidentified woman and sexually assaulting another, his attorney previewed the defense theme: “Mr. Weinstein did not invent the casting couch in Hollywood . . . Bad behavior is not on trial in this case. It’s only if you intentionally commit a criminal act, and Mr. Weinstein vigorously denies that.”
The defense will likely be that there was only a consensual exchange of sex for professional advancement, as is supposedly common in Hollywood. The defense may claim there are no witnesses to the alleged sexual crimes, and the victims are not credible because they didn’t promptly report the alleged crimes.
The victims, of course, had good reasons not to go to the police. As another Weinstein victim explained (she has not been identified), she was afraid that it would be a “‘he said, she said,’ and I thought about how impressive his legal team is, and I thought about how much I would lose.”
In fact, until now, the “he said, she said” rape trial dynamic has been the standard explanation of why few reported rapes result in a conviction. In Clarence Thomas-Anita Hill type standoffs, goes the conventional wisdom, jurors have no choice but to conclude that the prosecution failed to meet its proof-beyond-a-reasonable-doubt burden. That’s what the Weinstein defense is counting on and, in fact, to capitalize on that dynamic is likely to seek separate trials of the two women’s charges.
But, as the Bob Dylan song goes, “the times they are a changing.” Recent evidentiary rulings, including in Commonwealth of Pennsylvania v. William H. Cosby, Jr., could mean a very long time in prison for Weinstein, if convicted.
Last year, Bill Cosby’s trial on charges of sexual assault resulted in a hung jury. A second trial this year ended with a conviction of the 80-year-old comedian.
What made the difference? An obscure evidentiary rule that allows a court to admit evidence of uncharged crimes or wrongs to prove the defendant’s motive, opportunity, intent, absence of mistake, or a common plan or scheme. It’s a “handle with care” limited exception to the general evidentiary rule that such acts may not be used simply to prove a defendant’s bad character or propensity to commit a crime.
The Cosby prosecutors asked the court in the second trial to admit testimony from 19 victim-witnesses whose circumstances were similar to those of Cosby’s accuser, Andrea Constand. In each case, Cosby had established a relationship of trust with the woman, sedated her with an intoxicant, and sexually assaulted her when she was unable to resist. The point was that the repeated use of intoxicants established that Cosby could not have mistakenly believed that these women consented to have sex with him.
In the first trial, only one previous accuser was allowed to testify. In the second trial, the prosecutors cited recent decisions on the same evidentiary doctrine, the court allowed the prosecutors to call five of the women to testify, and Cosby was convicted.
Like Cosby, Weinstein also allegedly had a signature technique: professional encounters that begin in workplace settings but are moved to private locations such as hotel rooms; Weinstein appears in a bathrobe and/or requests a massage; and then, using his physical size, launches an overpowering sexual assault despite the woman’s objections and pleas to be allowed to leave, according to his accusers.
As a Michigan court recently observed in a different serial sexual assault case, “it is extraordinarily improbable that eight unrelated women in four different states would fabricate reports of sexual assault after engaging in consensual sex with [the] defendant.” It is even more improbable when it comes to the 75 women who have accused Weinstein of sexual assault.
At his trial, Weinstein will come face to face with his accusers, yet, given the Cosby precedent, he will not be facing just two women, one at a time — but, rather, a host of women who will testify to the same alleged pattern of sexual assault. It’s no longer “he said, she said,” but “he said, they said.” That could spell trouble for Harvey Weinstein.
Gregory J. Wallance was a federal prosecutor during the Carter and Reagan administrations. He is the author most recently of “The Woman Who Fought An Empire: Sarah Aaronsohn and Her Nili Spy Ring.” Follow him on Twitter at @gregorywallance.