Many interpreted Harvey Weinstein’s conviction and sentencing in 2020 as a painfully overdue moment of reckoning for powerful and sexually abusive men like Mr. Weinstein. As the district attorney who prosecuted Mr. Weinstein, I certainly felt that way.
That’s why I was surprised and confused when New York State’s highest court, the Court of Appeals, recently overturned Mr. Weinstein’s conviction on two grounds. The first was that prosecutors erred in allowing so-called Molyneux evidence, testimony from three women who Mr. Weinstein allegedly sexually assaulted but were not included in the indictment. That’s what it is. Another argument is that the judge erred in allowing prosecutors to cross-examine Mr. Weinstein about his overly broad “bad conduct” if he testified (he did not).
I was not naive about the challenges of building a winnable and legally sustainable case against Mr. Weinstein. I was a criminal defense attorney for over 20 years before being elected Manhattan District Attorney. I knew that just as night follows day, appeals follow convictions, and the game would not end until the final appeal was heard.
The Court of Appeals’ decision surprised me, as I had watched the trials and witnessed the honesty, raw pain, and strength of survivors’ testimony on the stand. What bothered me was that the Court of Appeals showed no deference to the lower courts, in a 4-3 decision, after a lengthy, objective, thoughtful and well-considered panel of eminent intermediates; Because it overturned unanimous opinion on important matters. The Court of Appeals upheld all aspects of the jury verdict and trial judge’s evidentiary rulings in the Weinstein trial. That’s rare.
Perhaps the Court of Appeals’ opinion and final word should provide clear guidance on the legal distinction between rape and consensual sex, and what evidence is admissible to distinguish between rape and consensual sex. It probably reveals more about the internal politics of the New York State Supreme Court than it provides any guidance. two.
How can New York reconcile Supreme Court decisions that seem out of touch with the facts surrounding rape and power differentials that lead to sexual abuse in the workplace? After this Weinstein decision? , how can we convince victims that the system will work to hold sexual abusers like Weinstein accountable? The answer lies with the Legislature, not the Court of Appeals.
In California, state law allows people to plead guilty to sex offenses not listed in the indictment. Specifically, in sex crimes cases, pursuant to the California Evidence Act, prosecutors are required by law to present evidence of a defendant’s past unaccused sexual misconduct that is directly related to the accusation but not relevant to the case. It has the right to subpoena witnesses who are not part of it. Charges against the defendant. And the only time Mr. Weinstein remains in prison is in California, where he was later convicted on one count of rape and two counts of sexual assault. Federal Rule of Evidence 404(b) similarly provides for trials in federal courts across the country.
Two New York state legislators have introduced a bill in the state Legislature that would allow evidence of past sexual assault to be admitted in court. Statutory authorities eat common law authorities for lunch every day. In Mr. Weinstein’s case, there was no basis in New York state law for the permissibility of unprosecuted egregious conduct, as there is in California, so a conviction would always be subject to the appellate court’s discretionary decisions in the future. I was in a good position to accept it. That vulnerability will always exist in sex crimes cases unless we pass legislation that establishes legal standards for permissible crimes in all courts and in all cases.
My reading of the New York case leaves no doubt that Mr. Weinstein was in fact a serial sexual abuser. There is no doubt that he used the power of his celebrity and industry fame and physically aggressive tactics to impose his will on and forcibly sexually assault countless women. When the protective dam Mr. Weinstein had built with lawyers, investigators, and non-disclosure agreements before his trial finally broke in the fall of 2017, Mr. Weinstein’s only defense was that the women were making it up. There is no doubt. that these were all consensual sexual encounters; He claimed that he was actually the victim because the women were using him to advance their careers.
The dissenting justices, most strongly represented by Judge Madeline Singas, a former district attorney from Nassau County, considered the same facts and admissibility under Molyneux as the majority., But they did it through a modern lens, understanding a reality that sexual assault experts accepted that the majority refused to acknowledge. The modern understanding of sexual assault cases involving “acquaintance rape” is to introduce testimonies from other survivors who experienced the same act to rebut the defense that the sex was consensual. , often appropriate and necessary. The Court of Appeals included a Molyneux analysis, or “repetition, duplication, or similarity of the defendant’s conduct” that “directly relates to the question of premeditated intent.” The defense at trial used what Judge Singas called “rape myths and rape culture in general” to ask jurors to believe that the victim was consenting, despite what she said and did. Ta.
The Court of Appeal’s decision does not change the law under Molyneux. But in the case of sexual assault, absent future legislation like the one in California and one currently proposed but not yet passed in New York, significant evidence of unprosecuted criminal conduct in acquaintance rape cases will no longer be available. Recognition will tend to be hindered. Such evidence, with appropriate limited instructions by the trial judge, can give the jury a fairer, more complete, and more balanced understanding of the defendant’s motives and intentions. At least in New York state, prosecutors are likely to be less inclined to investigate and prosecute the most difficult cases like Mr. Weinstein’s.
After Weinstein’s conviction in 2020, I met with survivors who had testified in my office. I am overwhelmed by the courage of these strong women who agreed to tell their stories under oath and expose themselves to cross-examination in court and attack outside of court by Weinstein’s media and investigative team. I did.
Unless Congress acts, the Court of Appeals’ decision in the Weinstein case is a loss to New York state, to prosecutors who want to take these difficult cases, and to survivors who may be even less willing to testify in court. It will be. As Judge Singas said, “New York women deserve better.” Agree.
Cyrus Vance was Manhattan District Attorney from 2010 to 2022 and prosecuted Harvey Weinstein in 2020. He is a partner at Baker McKenzie.
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