Editor’s Note: Caroline Polisi is a federal and white collar criminal defense attorney in New York City and is Of Counsel at Pierce Bainbridge. She frequently appears on CNN as a legal analyst and is an anchor at the Law & Crime Network, providing live legal analysis on high profile court cases. Follow her on Twitter: @CarolinePolisi. The views expressed in this commentary are her own.
Harvey Weinstein’s voluntary surrender to the NYPD is a long-awaited victory for the #MeToo movement: Weinstein will actually be held criminally responsible for his alleged conduct – he faces charges that he raped one woman and forced another to perform oral sex on him. As far too many victims know, most who perpetrate such criminal acts are almost never held accountable.
I asked in a previous column whether or not the #MeToo movement, incited by bombshell articles about Weinstein in the New York Times and the New Yorker last October, would infiltrate the court system in meaningful ways.
Now it has. We are no longer simply at a cultural inflection point surrounding our long collective tolerance of sexual assault; we are at a legal inflection point as well.
Cy Vance, Manhattan’s district attorney, drew scathing rebuke for his failure to make a criminal case against Weinstein in 2015 even when presented with evidence of the NYPD’s undercover sting operation, which produced an apparent admission by Weinstein, captured on audio, that he had touched the breast of Ambra Battilana Gutierrez.
(“Why yesterday you touch my breast?,” she asks Weinstein on the recording. “Oh, please. I’m sorry. Just come on in. I’m used to that,” he replies, adding “I won’t do it again. Come on, sit here. Sit here for a minute, please?”)
And many of Weinstein’s accusers had signed non-disclosure agreements with him and/or the Weinstein Company after complaints were raised, making a delayed criminal prosecution of him more difficult for authorities.
On Friday, however, such a prosecution had its first steps with the sexual assault charges against Weinstein. They stem from his alleged conduct against Lucia Evans, an actor who said that Weinstein forced her to engage in oral sex with him in 2004 at the Miramax office in TriBeCa. The alleged rape victim has not been identified.
Weinstein’s representative has said he sought treatment after the accusations and said any allegations of nonconsensual sex were “unequivocally denied.”
If Weinstein seeks to go to trial on these charges, he could learn some lessons from Bill Cosby’s sexual assault trials for the aggravated indecent assault of Andrea Constand. Weinstein will likely be faced with the same problem as Cosby: there will be many, many alleged prior victims willing to testify against Weinstein, potentially helping prosecutors show a criminal pattern or practice of Weinstein over the course of many years.
In Cosby’s June 2017 criminal trial, which took place before news of the Weinstein scandal broke, prosecutors sought to introduce testimony from 13 of Cosby’s prior accusers, but the judge only allowed one to testify. In Cosby’s retrial – after the #MeToo movement – the same judge allowed five such witnesses to testify.
There is no other reasonable explanation for why the judge changed his mind from one trial to the next regarding these witnesses other than that such evidence suddenly seemed more relevant (and we will see how that issue plays out with Cosby’s inevitable appeal).
Quite simply, the #MeToo movement has so fundamentally altered our collective consciousness – and conscience – (and therefore, one surmises, that of juries) that Cosby never stood a chance in his second trial.
So what is next for Weinstein legally? He will be afforded all of the due process rights that criminal defendants enjoy in our justice system every day, and he’s got one of the best criminal defense attorneys in town defending him.
In all likelihood, Weinstein will take a deal, rather than risk going to trial, and serve his time. And his victims will be able to take some comfort in his finally being held liable for his alleged crimes – and even more so in the knowledge that the future Harvey Weinsteins of the world will be brought to justice in a post-#MeToo legal system.