New York State vs. Harvey Weinstein

Challenges to Conviction in Weinstein’s Case

Culture, Power, Safety, Silencebreakers, Weinstein

The vast majority of sexual assaults are never reported to authorities in the first place and only a fraction of those that are reported result in conviction: RAINN estimates that out of every 1,000 sexual assault cases, 995 perpetrators will walk free.

New York’s previously short statute of limitations laws shielded many Weinstein cases from prosecution

Over 80 women have accused Weinstein of sexual harassment or assault, yet prosecutors were only able to bring charges in a couple of cases due to New York State’s extremely short, five-year statute of limitations on Rape in the Third Degree (sex without consent).

TIME’S UP and other advocates successfully worked with state lawmakers to lengthen the statute of limitations for rape in the third degree in 2019. However, the change is not retroactive, so New York State prosecutors were limited in the number of charges they could file.

In determining a verdict on Predatory Sexual Assault, the court will only hear from a handful of Weinstein’s victims

In order to convict Weinstein on Predatory Sexual Assault, prosecutors must prove that Weinstein has committed a serious sexual assault against at least one person other than the victim at the center of each Predatory Sexual Assault charge.

In addition to the two victims at the center of the charges brought against Weinstein — Mimi Haleyi, who alleges she was assaulted by Weinstein in 2006, and a Jane Doe, who alleges he raped her in 2013 — the Court will hear from Annabella Sciorra, Dawn Dunning, Tarale Wulff, and Lauren Young. These four witnesses allege sexual assault by Weinstein and will help prove the prosecution’s charge of Predatory Sexual Assault; however, they — along with the two victims at the center of the trial — represent fewer than 10 percent of Weinstein’s alleged victims.

The reason the Court will hear from so few Weinstein survivors is complex. New York law, like any state law, balances the right of the defendant to a fair trial against the government’s right to prove its case. Courts have to be careful about the quality and quantity of “prior bad acts” evidence they admit. This is because there is a risk that jurors will impermissibly infer that if a defendant committed a similar prior crime, they must have committed the current crime charged. Additionally, only evidence of certain prior sexual assaults (Rape in the First Degree, Criminal Sexual Act, Aggravated Sexual Abuse, or Course of Sexual Conduct Against a Child) can be used as proof of Predatory Sexual Assault.

Legal experts have observed that Judge Burke’s ruling on this matter strikes a reasonable balance and is consistent with what other judges have ruled; for example, in Bill Cosby’s trial, the judge only permitted testimony from five other women under Pennsylvania’s “prior bad acts” rule.

This trial is critical to show that predators everywhere will be held accountable...We refuse to be silenced and will continue to speak out until this unrepentant abuser is brought to justice.

Twenty-five women who came forward to report Harvey Weinstein’s sexual misconduct issued the above statement ahead of his criminal trial.

Other legal issues to watch

Jury selection will likely take longer in this case than in a typical criminal case

With this much press attention, it will take some time to find jurors who either haven’t followed the reporting about Weinstein or who can swear they won’t be influenced by what they’ve read and heard. Weinstein’s lawyers are expected to fight to keep people off the jury who have followed this case in the news, an issue Harvey’s Weinstein’s defense attorney has written about.

Additionally, in sexual assault cases in general, many jurors may express severe discomfort because of their own prior experiences, whether as victims, or friends or family to victims.

Expert testimony, the scope of which has already been litigated, will likely be a source of contention during the trial

The defense reportedly plans to introduce testimony about the effects of sexual trauma on memory from Deborah Davis, a University of Nevada at Reno psychologist. The government has already argued, and Judge Burke has agreed, that the defense cannot elicit testimony from Davis about the disputed theory of “voluntary unwanted sex.” It is expected that the defense will elicit testimony from Davis to suggest that the testifying victims have unreliable or “false” memories of the alleged abuse.

The defense’s commentary to the press may be an issue in the trial

New York State has rules in place regarding what lawyers can say to the press during a trial. Some reporting alleges that the government sought to limit what Weinstein’s lawyers can say about the case to the press in advance of the trial. This issue may arise again as the trial proceeds.