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Harvey Weinstein judge says ‘casting couch’ could be form of sex trafficking

Demanding sex from an aspiring actress in exchange for a role may be a "commercial sex act," covered by sex trafficking laws.

Hollywood film producer Harvey Weinstein enters Manhattan criminal court June 5, 2018 in New York. CREDIT: DON EMMERT/AFP/Getty Images
Hollywood film producer Harvey Weinstein enters Manhattan criminal court June 5, 2018 in New York. CREDIT: DON EMMERT/AFP/Getty Images

Harvey Weinstein is an alleged serial sexual predator whose reported offenses range from violent and criminal (rape, sexual assault), to gross and also criminal (masturbating in front of a reporter and into a plant at Socialista), to technically not criminal but still offensive to me personally (bullying actresses into wearing Marchesa on the red carpet; strong-arming Oscar voters into selecting Shakespeare in Love as best picture over Saving Private Ryan). And, according to a New York judge, he can also be sued on sex trafficking charges.

Weinstein was arrested in May and charged with first-degree rape and felony predatory sexual assault. He consistently denies all allegations against him, and on the day of his arrest, his attorney, Benjamin Brafman, told the assembled members of the press, “Mr. Weinstein did not invent the casting couch in Hollywood. To the extent that there’s bad behavior in that industry, that is not what this is about. Bad behavior is not on trial in this case.”

This is a questionable legal strategy for a number of reasons; for instance, you do not have to invent a crime in order to be guilty of committing that crime. You can literally be a copycat criminal, and still be a criminal. Copyright law in the criminal community is not super-stringent on these matters.

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The “casting couch” is the euphemistic term of art long deployed in Hollywood in an effort to disguise sexual violence as a cool rite of passage for women who want to make it in the movies and the men who feel entitled to have to sex with them. And, as U.S. District Judge Robert W. Sweet ruled Monday, it could be considered a “commercial sex act,” which means Weinstein can in fact be sued under sex trafficking laws.

Kadian Noble sued Weinstein last fall. She says that, in 2014, Weinstein molested her and forced her into a bathroom to watch him masturbate after she and Weinstein watched her demo reel in a hotel room in Cannes, France.

Weinstein’s lawyers argued that “nothing of value was exchanged” between the two. Quite the interesting plot twist, considering Weinstein spent much of his career shouting about how a meeting with him could change a person’s life, and/or how refusing him could mean the end of one’s career and reputation.

Judge Sweet rejected Weinstein’s arguments, writing that “for an aspiring actress, meeting a world-renowned film producer carries value, in and of itself.” And that even if the meeting alone weren’t enough, Noble’s “reasonable expectation” of receiving job opportunities from Weinstein in the future, “based on Harvey’s repeated representations that she would, is sufficient.”

Sweet went on:

“The opportunity, moreover, for the actress to sit down with that producer in a private meeting to review her film reel and discuss a promised film role carries value that is career-making and life-changing.

The contention, therefore, that Noble was given nothing of value — that the expectation of a film role, of a modeling meeting, of ‘his people’ being ‘in touch with her’ had no value — does not reflect modern reality.”

As USA Today reports, Sweet put a footnote on the word “reality” to cite sources that detail the way the so-called “casting couch” works, and saying the concept “has been in the American lexicon for nearly a century.”

Through his lawyers, Weinstein claimed that allowing Noble’s lawsuit to proceed means a too-expansive definition of sex trafficking laws, one that would “now cover all sexual activity between adults when one person holds power and influence over the other.”