Defending Weinstein, convicted in court of public opinion

Wednesday March 18 2020

This combination of pictures created on October 13, 2017 shows US producer Harvey Weinstein and the actresses who have accused him of sexual assault. PHOTO |AFP


Disgraced Hollywood mogul Harvey Weinstein is accused of sexual harassment and assault by nearly 80 women, turning him into the catalyst of the #MeToo movement and potentially one of the worst sexual predators of the modern age.

Criminal investigations have been conducted against him in New York, Los Angeles and London but, for now, only three accusations of assault from three different women have resulted in charges: all in New York.

An alleged rape in March 2013 and two forced acts of oral sex in 2004 and 2006, which could see him spend the rest of his life in prison if convicted.

Most of the accusations are too old to be prosecuted, but he is also the target of multiple lawsuits by women who hope to claim financial damages. A criminal conviction would bolster their chances.

Weinstein says all his sexual relationships were consensual. He has hired one of America's most famous criminal defence attorneys, Ben Brafman, who got sex charges dropped against Dominique Strauss-Kahn in 2011.


Here are the main planks of the defence so far, as evidenced by Brafman's public remarks, court arguments and public filings.

"Mr Weinstein did not invent the casting couch in Hollywood," Brafman told reporters in May. "Bad behaviour is not on trial."

The argument seems to be that while Weinstein may have behaved badly, it did not amount to criminal conduct and was in the vein of what was considered acceptable in Hollywood at the time.

Criminal defence lawyer Julie Rendelman says it's a "polarising" remark in the #MeToo era because it "minimises and justifies Weinstein's actions."

"If he wants to win over a jury at the end of the day, it's likely he will avoid such comments in the future," Rendelman said


In early August, Brafman sensationally asked the court to dismiss the charges, revealing dozens of emails between Weinstein and the woman accusing him of rape, which seem to suggest they had a long-standing affair.

"I love you, always do. But I hate feeling like a booty call. :)," she apparently emailed him in 2017, four years after the alleged attack.

The judge is expected to rule at the next hearing on November 8.

Brafman says the prosecutor did not show these emails to the grand jury, which met behind closed doors to determine that there was enough proof to charge Weinstein, and claims it was unfair to his client.

No one knows, however, what is presented to the grand jury as such things are secret. Pace Law School professor Bennett Gershman says nothing in the law requires the prosecution to share the emails with the grand jury.

Prosecutor Joan Illuzzi-Orbon says nothing in the emails contradicts the accusation of rape.


Nevertheless the emails, which relate to key questions of consent and credibility, are "right now the biggest issue," says Rendelman.

Even if the case goes to trial, Brafman can still use the emails to bolster the argument that Weinstein's encounters were consensual, experts say.

"While there is no question that an individual can have a consensual sexual relationship with another and still be raped, these emails... may undermine her credibility," acknowledges Rendelman.

"In addition, any undermining of one complainant's veracity can end up undercutting the entirety of the prosecution's case."

Brafman insists he can get the case dropped. But Gershman says there's a strong chance that the defence will end up accepting a plea deal, allowing Weinstein to escape with a lighter sentence.

"It's much more difficult today (to get acquitted) than 20 or 30 years ago and the defence knows it," Gershman says.

The recent conviction and sentencing of Bill Cosby serves as a potent example.

"My sense is, if Weinstein goes to trial, he will get convicted," Gershman adds.