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Harvey Weinstein Might Actually Skate on the Charges. Here’s How.


Harvey Weinstein book meaning threat

After Harvey Weinstein’s arraignment this morning, his lawyer, Benjamin Brafman, held a courthouse press conference, in which he laid the groundwork for some of Weinstein’s defense. And from where I’m sitting, it didn’t sound half bad. Sexual assault cases are notoriously difficult to prosecute. They often rest almost entirely on the credibility of victim-witnesses who can fall apart on the witness stand at any minute. When the assaults in question allegedly took place years earlier, it makes a prosecutor’s job that much harder.

Brafman, a former prosecutor and seasoned defense attorney, knows all this, and already planted the seeds for a strong defense. We’ll have to wait until the case progresses to see how Brafman’s arguments fare in the courtroom, but for now, he seems to be serving his client well. Here’s some of the points he raised:

  1. “We believe that [the charges] are not factually supported by the evidence.”

Weinstein was charged with Rape in the First Degree, Rape in the Second Degree, and Criminal Sexual Act in the First Degree. The complaint alleges that the rape occurred in 2013, while the criminal sexual act occurred in 2004.

At this point, we don’t know exactly which facts underlie the allegations. Many women have accused him of wrongdoing, but the complaint does not specify the identity of the victims. Lucia Evans publicly accused Weinstein of pulling her head down onto his penis and forcing her to perform oral sex on him during a 2004 meeting, which would not constitute rape, but could match the criminal sexual act charge.

In New York State, “rape” requires that the victim and the defendant had “sexual intercourse.” The relevant definition under the New York Penal Law is as follows:

“Sexual intercourse” has its ordinary meaning and occurs upon any penetration, however slight.

I know that using terms like “ordinary meaning” is very un-2018, but in legal contexts, things are still a bit old-fashioned. Sexual intercourse requires genital- to-genital contact, which means that Evans’ reported 2004 encounter with Weinstein doesn’t match the statutory definition. This means that there is either a second woman, or a second incident that forms the basis for the rape charges.

Criminal Sexual Act in the First Degree does criminalize non-consensual oral sexual contact. In that respect, the crime matches Evans’ allegations. However, it also requires the defendant to have used “forcible compulsion.” In New York, that means physical force or the threat of immediate death, physical injury, or kidnapping.

From the reports, Evans is certainly reporting having felt threatened and frightened, but that’s not necessarily the same thing having had “forcible compulsion” used against her. To convict, a jury would need to believe that Weinstein somehow used physical force or physical threats to coerce Evans.

By the way, prosecutors didn’t have much choice than to charge the first-degree of this crime. Lesser degrees, which would have been far easier to prove, carry shorter statutes of limitations. Evans’ alleged assault occurred in 2004 – so on this charge, it may have been first degree or bust. We’ll have to wait and hear more details of Evans’ account to assess the likelihood of a jury making such a conclusion.

  1. Weinstein didn’t “intentionally” break the law.

Several times, Brafman referred to Weinstein’s lack of intent – as if sexual assault crimes require intentionality on the part of the defendant – which they do not. What Brafman is doing is setting up a standard defense in sexual assault cases – that as far as the defendant was concerned, the woman involved had no problem with the sex. In cases involving some kind of implied threat or coercion, this defense exploits any underlying ambiguity created by the victim’s behavior. If Weinstein honestly thought she was consenting, maybe it was consensual, so the logic goes.

  1. Weinstein isn’t going to be able to get a fair trial.

When Brafman commented on an eventual trial, he foreshadowed about “if” potential jurors could be found who were “not consumed by the movement that seems to have consumed this case.” Brafman will likely bring up the extreme media coverage, and the inherent unfairness to his client at every chance he gets.

There’s no question that Harvey Weinstein is ground zero for the #MeToo movement. Since allegations against him were made public, his name has become synonymous with the sexual assault. Given the extraordinary amount of media attention that’s been given to all things Weinstein, arguments that raise the question of a tainted jury pool aren’t all that unreasonable. Of course, by yapping about Weinstein’s innocence, Brafman did his best to influence that same jury pool, muddying the waters on his argument a bit.

  1. “Harvey Weinstein didn’t invent the casting couch.”

This is Brafstein’s way of declaring his intent to put the entire culture of Hollywood on trial as his client’s defense. When asked about Weinstein’s potential patterns of behavior, Brafman said, “my job is not to defend behavior. My job is to defend something that is criminal behavior.” In other words, things are a sleazy mess in Hollywood, and Weinstein was just acting the way everyone acts.

Of course, “everyone’s doing it,” is hardly a defense to rape –but behavioral norms could be relevant to the central issue of whether a particular woman’s behavior did or did not constitute consent.  The message here is clear: Weinstein might be a creep, but that doesn’t mean he’s a rapist.

One reason why Weinstein is such a captivatingly disturbing figure in the media is because of the sheer number of women he allegedly assaulted. A prosecutor could only introduce evidence of what other women alleged if those allegations could somehow be tied to the case at hand – and demonstrating a pattern of behavior is one such tie. Brafman’s statements line up with the argument he’s bound to make – that what Weinstein may have done with other women at other times isn’t relevant to what he did with Lucia Evans or the other woman referenced in the complaint. On that basis, Brafman will argue that accounts from those other women are inadmissible at trial.

(Photo by Kevin Hagen/Getty Images)

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos