To any casual observer, Mr. Weinstein’s history of accusations of abuse seems as though it should be admissible, and yet it was not. NY Times (here)
A New York Times reporter is appalled that the conviction of Harvey Weinstein of rape was overturned. I am not.
At the time of his conviction, I was rather shocked that the court allowed numerous women–who were not the victims in the case– to testify that Weinstein had treated them very badly. I don’t doubt that he did. I also think it’s likely he was guilty of rape and I would not have been displeased to see him convicted of it in a fair trial. But what the prosecution did was unethical and unfair. They lined up numerous witnesses who all agreed that Weinstein was an asshole. Then they essentially said– “see what a horrible person he is? He must also be guilty of rape.” Of course, they used artful language to make it sound more sophisticated than that. They said it showed a “pattern” of behavior, an MO, that corroborated what the actual victims experienced.
I don’t think it’s even close. That was an indefensible tactic and both sides knew it and most informed observers were certainly aware of it. The prosecution thought, well, this is special. It’s a new era. It’s “me too”. The justice system should change to accommodate this new sensibility.
None of those additional witnesses laid charges against Mr. Weinstein. All of their allegations were made without any attempt to prove them, and without giving Weinstein the opportunity to rebut or challenge them. Some of them brought cases that were rejected because of police misconduct. Presenting their untested evidence in court poisoned the well.
If any of those women had valid charges to make, make them, and take him to court, where you can attempt to prove your case and Weinstein can be given a fair chance to rebut your accusations. If you can’t or won’t prove them, you have no business testifying in a case you are not involved with in order to smear the defendant.
Complicating the matter is that many of these women did have consensual sex with Weinstein. At least some of them, were hoping to advance their careers in the film industry as a result. Even the two actual victims in the case who allege that Weinstein raped them also had consensual sex with him. This raises the possibility that many or all of the damaging character witnesses may be experiencing something like buyer’s remorse. They consented to sex on the expectation that Weinstein would advance their film careers. When he didn’t fulfill his side of the deal, they came to believe that the sex was, in some sense, less consensual than it was when they consented.
That’s not a crime. It’s just contemptible. Or, if it is a crime, the victims are the actresses who were unwilling to make a pact with the devil and, therefore, lost opportunities for a career in film and were replaced by actresses who were willing to trade sex for opportunity. It is also contemptible for aspiring actresses to use sex to curry favor with producers and other powerful insiders in order to get juicy film roles.
Similarly, in the Bill Cosby case, the victim had agreed to a cash settlement with Cosby for which, as part of the agreement she voluntarily signed, she agreed to never again bring charges against him. She didn’t have to take the money. She didn’t have to sign the agreement. The agreement was actually supervised by a judge through the court system. So when the authorities decided to charge Cosby anyway, and she testified– breaking the agreement– I thought immediately that a judge should have thrown it out (or demanded that she return the money she received from Cosby). I thought that was obvious. Eventually, it was obvious and the case was thrown out.
Reporter Jessica Bennett seems to believe that a bedrock principle of justice– a very important principle– should be dispensed with so it would be easier to convict someone based on flimsy evidence (what could it be if not “flimsy” if it’s not strong enough to support a conviction on its own). In a sense, it is the principle of having the right to confront your accuser. The additional women who testified against Weinstein denied him the right to “confront” their accusations by making them in court in a case in which their charges were not being tested. That is an afront to fundamental justice.
His conviction in California used the same approach. And I hope that the higher courts throw out his conviction there as well.
Then I hope both systems re-try him and come up with a fair judgement based on the facts of the case– not on his reputation.