Before expelling him last October, the Academy of Motion Picture Arts and Sciences allowed Harvey Weinstein to charm and strong-arm them into honoring his movies 81 times. It’s one of the best winning records in Oscar history. But now Harvey Weinstein has more accusers than Oscars.
As his criminal trial looms, Weinstein surely wonders if these women will be called to testify.
In New York, Weinstein faces five charges involving two women. As Variety reports, detectives have also interviewed at least 14 other women, many of whom have either gone public in the media or filed civil suits against Weinstein (criminal statutes of limitation having long since expired for most of these alleged victims).
Ben Brafman, Weinstein’s attorney, “is preparing to file a motion by Wednesday that will attack the credibility of many of those witnesses,” Variety reports:
In the Weinstein Co. bankruptcy case, Weinstein has been allowed to access several thousand of his work emails. In a court conference call on Monday, Brafman said they included “exculpatory” emails involving 25 accusers.
“What’s stunning, quite frankly, is that without exception, virtually every one of these women have maintained intimate, personal, very friendly correspondence with Mr. Weinstein for years in some cases after the alleged sexual assault,” Brafman said.
Brafman wanted permission to quote from the emails between Weinstein and these accusers — and Brafman wanted to be able to refer to them by name. For this, he needed the green light from Judge Mary Walrath, who is overseeing the Weinstein Company’s bankruptcy case. According to Variety, she’d “previously allowed Weinstein to quote about 40 emails from one of the accusers in the criminal case. Brafman used those emails — many of which expressed affection for Weinstein — in an unsuccessful bid to have those charges dismissed.”
Brafman, who says these women have no right to privacy regarding their emails since they made themselves public figures by accusing Weinstein in the first place, is still trying to get the whole case thrown out.
Judge Walrath ruled that Brafman could quote from the emails in the motion, but the accusers’ names and identifying information needed to be removed.
Prior bad acts witnesses — in New York, they’re called Molineux witnesses — are relatively rare in criminal cases. Judge James Burke would have to permit them to testify; prosecutors have yet to formally seek such permission. The prosecution has also refused Weinstein’s legal team’s request for a list of potential Molineux witnesses, calling it “premature.”
What’s the benefit to prior bad act witness testimony? Consider the case of Bill Cosby: The first time Cosby went on trial for the drugging and sexual assault of Andrea Constand, the prosecution asked Judge Steven T. O’Neill to allow 13 prior bad acts witnesses to testify. O’Neil only permitted one. One mistrial later, and the prosecution re-upped their request, this time asking for 19 prior bad acts witnesses. O’Neill let five of those women testify. Cosby was convicted on all three counts of aggravated indecent assault with which he was charged and is currently in prison.
In the Cosby case, these prior bad acts witnesses helped the prosecution demonstrate that Cosby’s assault of Constand was in keeping with a long-running pattern of violence, following a script from which he rarely deviated. As ThinkProgress has reported before, all of the women described strikingly similar experiences with Cosby: he won them over with the promise of mentorship and career advancement, lured them into a private place with him, drugged them, then sexually assaulted them once they were incapacitated or unconscious. Bolstered by the testimony of these five women, the prosecution proved that Cosby is a serial predator with a modus operandi, a signature crime of which Constand was just one of multiple victims.
Given Weinstein’s reputation — not to mention the success of this strategy in the Cosby case — it seems reasonable to expect the prosecution in Weinstein’s case would attempt something similar. Weinstein, too, has been accused by dozens of women of sexual harassment and assault, and these women’s narratives hit near-identical beats: The promise of professional advancement; the change of location to a hotel suite or somewhere similarly secluded; the sudden pivot to sexual demands and aggression; the credible threats of career destruction should she refuse or report him.
Another notable strategy from the Cosby case, given Brafman’s stated intention with the “intimate, personal, very friendly correspondence” between Weinstein and his accusers, is the prosecution’s choice and placement of a key expert witness: a forensic psychologist who studies behaviors of sexual assault victims. At Cosby’s retrial, Dr. Barbara Ziv testified first, debunking popular rape myths and effectively diffusing the most likely tactics the defense would use to undermine the prior bad acts witnesses before those women even took the stand.
Of particular relevance in this facet of the Weinstein case is Dr. Ziv’s point about how common it is for victims to maintain relationships with their assailants. “A [victim’s] first impulse is to try to find a way to make it make sense,” Ziv said. “And the only way that you can do that is by having contact with that individual again.” She went on (emphasis added):
“It’s not at all uncommon for women to go back and sometimes even date and have consensual relations with a perpetrator. They want to gain control. They want to go back and see, is there an explanation?… Is he going to apologize?… The flip side of that is, given the power dynamic differential: Is he going to go after me? Is he going to ruin my reputation?… Am I going to have a job?“
Another thing worth noting about Weinstein’s attorney: Brafman’s first attempt at defending his client, on the day of Weinstein’s arrest, was to tell the press that Weinstein “did not invent the casting couch in Hollywood.”
As ThinkProgress pointed out at the time, this is a very shoddy legal strategy: You do not have to invent a crime in order to be guilty of committing that crime. And Weinstein has since been sued on sex trafficking charges by Kadian Noble, a British actress, who claims she was sexually assaulted by Harvey Weinstein at Cannes in 2014 after he lured her into his hotel room under the pretense of reviewing her film reel. According to Noble’s lawsuit, Weinstein molested her and forced her to watch him masturbate in the bathroom.
Though Weinstein’s team has challenged Noble’s case, Judge Robert W. Sweet allowed her lawsuit to proceed, saying the encounter could qualify as a “commercial sex act” and that, contrary to Weinstein’s insistence that “nothing of value” was exchanged between him and Noble, “for an aspiring actress, meeting a world-renowned film producer carries value, in and of itself.” Noble’s “reasonable expectation” of receiving job opportunities from Weinstein in the future, “based on Harvey’s repeated representations that she would, is sufficient.”