JAIMEE MARSHALL: The moral grey area at the heart of the Weinstein case that no one wants to talk about

On February 24, 2020, Harvey Weinstein was found guilty of two out of five charges in a New York trial over criminal sex acts. He was convicted of a criminal sex act in the first degree for forcing oral sex on a production assistant for Project Runway, Miriam Haley, in 2006, as well as rape in the third degree against Jessica Mann in 2013. He was found not guilty of three other charges, those being two counts of predatory sexual assault and one count of first-degree rape.

Despite being sentenced to 23 years in prison for his convictions, legal blunders committed by the defense have resulted in the overturning of his conviction, much to the chagrin of victims' advocates and #MeToo spokespeople. Though this conviction has been overturned and is a huge win for Weinstein and a tremendous blow to the #MeToo movement, he is not being released from prison.

He still faces a 16-year prison sentence following his conviction in Los Angeles, where he was found guilty of raping and sexually assaulting a woman in 2013. However, that conviction is also being appealed. Considering that a momentous decision in the Court of Appeals just overturned his New York conviction, I wouldn't be so sure that this sentence is on unshakeable ground. So, what happened to result in such a controversial decision against the Hollywood #MeToo movement's biggest boogeyman?

I. Bad Legal Tactics: The Molineux Rule

Weinstein's New York conviction was overturned in a 4-3 decision by the Court of Appeals, stating "the trial court erroneously admitted testimony of uncharged, alleged prior sexual acts." To understand why this is a bad legal precedent, you first need to understand the Molineux Case and why it's against New York state law to admit Molineux witnesses to establish propensity to commit crimes.

In 1989, a man named Roland Molineux was accused of murder when he allegedly mailed poisoned powder to Harry Cornish, a man with whom he had a feud, with intent to kill him. However, the package was delivered to a woman named Katherine Adams, who was killed by the poison. He was charged with first-degree murder, and during the trial, the prosecution wanted to introduce evidence that Molineux had previously killed another man in the same manner to establish that he had a propensity for murder via poisoning. He was convicted and sentenced to death, but the defense filed an appeal and had the conviction reversed, citing that the invocation of prior bad acts to establish that someone is guilty of a separate crime is prejudicial to the accused.

This landmark case, People v. Molineux, established something in criminal law known as the Molineux Rule — a New York state law that states prior bad acts or uncharged crimes are considered inadmissible to establish the defendant's propensity to commit a separate charged crime. This includes witnesses called to the stand to testify about prior uncharged crimes. Molineux witnesses can be deemed permissible in isolated circumstances under very specific criteria, such as to establish motive or intent. However, it is a very high bar to meet to get such evidence and testimony admitted, and the prosecution walks a tightrope to avoid veering into the territory of relying on the propensity to commit crimes as evidence of guilt.

This is what happened in the New York Weinstein case when the prosecution called three witnesses to testify that Weinstein sexually assaulted them, despite their allegations being separate from the charges he was standing trial for and for which these allegations did not result in any criminal charges. These allegations were largely irrelevant to the charges at hand, but the judge admitted their testimony, arguing they should be admitted as an exception to the Molineux rule to contest Weinstein's claim that the sexual acts he was being charged with were all consensual. This is a difficult claim to disprove without concrete evidence, so the defense brought in Molineux witnesses to establish that Weinstein's conception of consent is up for scrutiny by demonstrating a pattern of predatory behavior.

Not only did the prosecution rely on the testimony of Molineux witnesses to establish Weinstein's propensity to commit these other crimes, but the judge also permitted the prosecution to cross-examine Weinstein about these prior, unrelated allegations if he took the stand. Included in these unrelated allegations was his history of brutish behavior, including allegations of punching his movie producer brother at a business meeting, snapping at waiters, hiding a woman's clothes, and threatening to cut off a colleague's genitals with gardening shears, as reported by AP News.

This caused Weinstein, who intended to testify, to avoid taking the stand since doing so would be devastating for him. Weinstein's lawyer appealed the verdict, and the Court of Appeals decided "the accused has a right to be held to account only for the crime charged, and, thus, allegations of prior bad acts may not be admitted against them for the sole purpose of establishing their propensity for criminality." The appeals court had scathing words in its majority decision, calling it "highly prejudicial" and "an abuse of judicial discretion." They also say that the court "compounded the error when it ruled that defendant, who had no criminal history, could be cross-examined about those allegations as well as numerous allegations of misconduct that portrayed defendant in a highly prejudicial light," This undermined Weinstein's right to testify.

Despite the judge permitting Molineux witnesses in this case, the Court of Appeals found that they did not meet the exceptional criteria needed to be deemed admissible and resulted in a conviction purely on propensity evidence, obstructing a defendant's right to a fair trial. While this overturned conviction sent shockwaves and outrage through the media, legal experts were less surprised. Criticisms of the way the prosecution and presiding judge handled this case have been vocalized since the trial first took place.

When this case went to a lower appellate court, judges had raised concerns about Judge James Burke's conduct, arguing Burke not only permitted prosecutors to pile on with "incredibly prejudicial testimony" but also challenged Burke's refusal to remove a juror who had written a book involving predatory older men for conflict of interest. Another concern was raised about his decision to allow prosecutors to bring in expert testimony on victim behavior and rape myths while rejecting testimony on similar subjects from experts by the defense. Judge Jenny Riviera declared in the majority decision that "the remedy for these egregious errors is a new trial."

II. What This Legal Misstep Reveals About the #MeToo Movement

What happened, in this case, is clear. A judge disregarded more than a century of legal precedent — something in place to protect the innocent, not just Harvey Weinstein, in favor of producing an outcome that he would have preferred. Public defender Eliza Orlins, in an interview with Vox, says she believes [Burke's] legacy will be that he made these rulings to try to stick it to Weinstein, to try to make sure that there was a conviction, and that has now resulted in the retraumatization of victims." She continues, "He was behaving like a prosecutor, and the reality is that the prosecutors are also at fault."

People are trying to attribute malevolence to the Court of Appeals' motives here, but victims' advocates couldn't be more misguided in this assumption. This was just bad legal practice, full stop. The overturning of this conviction is not only justified but a moral imperative. This doesn't mean that Weinstein is innocent of the charges brought against him, but that he was convicted under prejudicial, nefarious circumstances and his right to a fair trial — to be presumed innocent until proven guilty beyond a reasonable doubt — has been violated.

Even bad guys guilty of crimes deserve equal protection under the law. If they don't, who's to say they won't be weaponized against the innocent? If the charges brought against him in this case were true, it's a tragic day for these victims. They will be subjected to another trial, have to relive the harrowing details and risk him walking free. Make no mistake, however, that this is the fault of the judge and the prosecution. Because they decided to play fast and loose with legal precedents with full knowledge of the risky gamble they were playing, an abortion of justice may be the end result.

Given that the public is thirsty for vengeance and wants us to seek it at the expense of civil liberties and in violation of the right to due process, it's more important than ever that these protections are upheld, even in cases where it would be politically expedient not to. We can't set a standard of sketchy legal practice because this applies to everyone, not just Harvey Weinstein. We are seeing these legal errors result in more frequent mistrials and overturned convictions. In 2021, Bill Cosby was freed from prison after the Pennsylvania Supreme Court reversed his conviction on the grounds that Cosby's due process rights were violated when he was sent to prison despite having a non-prosecution agreement with a former prosecutor in exchange for his deposition in a civil case.

Defense attorney and legal commentator Andrea Burkhart reacted to Weinstein's overturned conviction on X, tweeting, "To me, the only thing shocking about this decision is that the court actually applied the law here. Propensity evidence was a big problem in the Cosby trial as well, and don't be surprised if you also see it come up in Danny Masterson's appeal." Just as the prosecution fumbled the O.J. Simpson case doesn't mean he wasn't guilty, and just like having a racist working for the LAPD destroyed the credibility of the strong case they had against O.J., so too can bad legal practice like this destroy valid cases against Harvey Weinstein, forcing a retrial where victims have to be subjected to this process all over again. This is an argument in favor of upholding civil liberties, not removing them.

III. The Elephant in the Room

Besides the hopefully obvious reality that everyone is entitled to equal legal protection regardless of their reputation, we ought to take a pause and remind ourselves how little we truly know about Weinstein's alleged predation. Since The New York Times' 2017 bombshell investigation exposed alleged misconduct against the infamous producer, more than 100 women have made allegations of sexual misconduct against him.

The thing is, these allegations range wildly in severity and nature, and most have not resulted in criminal proceedings. Weinstein at least admits to sexually preying on young, hopeful actresses coming up in Hollywood, promising them career opportunities in exchange for sex, which is a quid quo pro relationship, also known more ubiquitously in the industry as the "casting couch."

This sexual relationship is not only a form of predation and morally wrong but can also be deemed illegal if it meets certain criteria, especially if it involves an imbalance of power. In some sense, you could argue that even if these women "consented," they nonetheless remain victims of sexual exploitation. However, there is, at the very least, some qualitative, moral difference between a consensual quid quo pro relationship and rape. Weinstein has been charged with rape and sexual assault in both New York and Los Angeles. His victims allege he forced himself on them, not that he asked for sex, and happily obliged without any struggle, duress, or verbal refusal.

Jessica Mann alleges that she said no multiple times and that Weinstein said, "I don't have time for games," and ripped off her pants. Another woman testifying in the New York trial said he lunged to kiss her, to which she repeatedly said "no" and tried to push him away, but that he pulled her back towards him and kissed and fondled her. Despite her attempts to leave, he used his weight and body to lead her into the bedroom, where he pushed her with his body until she fell back onto the bed, making several attempts to get up but facing repeated pushes by Weinstein back onto the bed. She claims she kicked and pushed to get away, but he held her arms and wrists, laid on top of her to hold her down, and once she gave up the struggle, forced himself on her orally.

Another alleged victim said she twice tried to leave but that Weinstein blocked her by putting his hand on the door and above her head and slamming it shut, instructed her to undress angrily, and when she hesitated, grabbed her hand and held it to force her to undress. Once completely naked, he allegedly told her to lie down on the bed and, after removing his clothes, got on top and had intercourse with her. A third alleged victim says she was shoved onto a bed and that she was punching and kicking him, but Weinstein restrained her hands above her head and "raped" her while she tried to fight.

Here's the crux of the problem — anyone less than a monster knows these allegations, if true, are reprehensible, inexcusable, criminal, and outright evil. That being said, we've been fed an oversimplification of the question at hand. That question is, how do we know any of this is true if the only evidence we have is their word against his? This becomes further complicated by the unfortunate continuous relationships all three of these women had with Weinstein, not just professionally, but two of whom continued to engage in consensual sex with him after these alleged violations. One of these alleged victims, who maintained friendly and consensual relations with Weinstein after the fact, sent emails telling him she loved him. Before victims' advocates get up in arms, virtue signaling about scrutinizing women for failing to be the "perfect victim," I'm asking for some intellectual honesty here.

The question, which I believe they know to be true, is not whether it is possible for a woman to have been sexually assaulted and chosen, for whatever reason, perhaps for professional optics, fear, or otherwise, to continue contact, even sexual contact with their abuser. Rather, it is that such friendly and close relations, in the absence of any material evidence of sexual assault aside from personal testimony, put those allegations up for scrutiny. It does give credence to Weinsteins' account of events, at the very least, making them appear more probable that his relations with these women were, in fact, of a consensual quid quo pro-nature.

It's crucial that we're able to ascertain exactly what the nature of these sexual relationships with these women was because there is a tendency to vet other #MeToo cases more carefully, while Weinstein is lamented as just "obviously guilty" and he very well may be, but guilty in what sense? Is he guilty of leveraging his position of power to obtain sex from attractive young women coming up in the business? That seems to be his own admission, but that doesn't mean he's guilty of physical force — of rape.

IV. No One Wants to Slander Victims, We Want to Arrive at the Truth

Weinstein strikes me as a skeevy guy, but considering none of us were there and that, by Hollywood actress' own admission, his casting couch was an open secret in the industry, we need to be specific about exactly what people "knew" he was doing. It's unclear if the "open secret" was that women agreed, consensually, to exchange sex in favor of acting opportunities or that he was raping and sexually assaulting them. I have my doubts that the latter information would be passed on so nonchalantly, but that doesn't mean it wasn't happening.

Another reason I'm wary of the lack of precaution taken in these cases is the muddying of the definitions behind words like "consent" and "sexual assault." Take one of Weinstein's accusers, Jennifer Siebel Newsom, for instance. Newsom claims Weinstein raped her, but she also makes other questionable statements like, "You don't say no to Harvey Weinstein. He could make or ruin your career," and testified that she masturbated him to completion to get him to take his penis out of her and even faked an orgasm to make it end sooner. That certainly sounds more like a casting couch in which she consensually participated, not rape. He was acquitted of the charges related to Newsom, but it begs the question: just how pervasive is this disjointed perception of assault?

Have any of these women actually been forcibly assaulted, or are they saying they implied their nonconsent? Of course, I just mentioned several allegations of a violent and forcible nature, but it's not beyond the pale of possibility that an actress who resorted to selling her body for career opportunities would leap at the chance to recharacterize them as assault rather than an intentional selling of her dignity. By bringing up this possibility, I do not mean to demean genuine victims for whom it would be an insult to suggest such a rewriting of events, but there's no getting around the fact that none of us except Weinstein and his alleged victims were actually there.

No one wants to grant even the possibility that they could have consented, whether reluctantly or not, in what they knew was a sex-for-hire situation and that if this was the case, perhaps they bore some semblance of responsibility to say no. By Hollywood's own admission, this was standard industry practice. Most famous actresses with real prestige have made more benign, though nonetheless gross, allegations against Weinstein, but they involve him revealing himself or trying to initiate a sexual encounter, which was rejected and didn't go beyond that.

The defense will ask questions like, "if so many young, beautiful actresses were willing to give it up to make it in Hollywood, why would he need to assault anyone?" It doesn't seem like anyone biased against Weinstein has reasonable answers. It's like you're not allowed to ask them at all. The inherent nature of a criminal proceeding is that it is unfair. Genuine victims' real-life trauma is scrutinized, subject to debate, and their credibility questioned, while the accused, if not a perfectly ethical person, seems all the more likely to have committed the crimes they're charged with. This is the nature of obtaining truth. It's not perfect, nor pretty, but it's the best option we have to achieve some modicum of justice.

Image: Title: weinstien