Most rape accusations don’t make it to court. Much has changed since the New York Times and the New Yorker reported that dozens of women had accused Weinstein of rape, sexual assault and sexual abuse, unleashing a torrent of similar claims against others as the MeToo hashtag went viral and developed into an international movement. But the legal challenges remain.

Such cases can be difficult to try because there are often no witnesses. For the office of Manhattan District Attorney Cyrus Vance Jr., prosecuting the former movie producer could be complicated by the fact the charges are based on allegations about long-ago events. The more memories fade, of course, the easier they are to challenge.

Harvey Weinstein leaves court in New York in 2018.

Harvey Weinstein leaves court in New York in 2018.Credit:AP

Weinstein, 67, is accused of raping one woman in a Manhattan hotel room in 2013 and of performing a forcible sex act on another in 2006 in his apartment in the city. He pleaded not guilty, maintaining any sexual activity was consensual.

The hurdle of an extended time between an alleged assault and charges being filed isn’t always insurmountable for prosecutors. After one trial ended in a hung jury, Bill Cosby was convicted in 2018 of drugging and sexually assaulting a woman in 2004. At the second trial, prosecutors called five other women as so-called prior bad acts witnesses to testify about how the comedian allegedly assaulted them.

The Weinstein prosecutors will follow a similar strategy, indicating in court filings that they plan for at least four Weinstein accusers, beyond the two in the indictment, to testify in an attempt to show a pattern of behaviour by the defendant. The district attorney’s office declined to comment.


Members of Weinstein’s defence team also declined to comment for this story. One of his lawyers, Donna Rotunno, said in an interview with CBS This Morning in September that the many accusations levelled against Weinstein, in civil cases and in the media, aren’t relevant to jurors, saying that “frankly, those allegations don’t matter in the context of the criminal case.”

Weinstein and the board of his bankrupt film studio, Weinstein Co., reached a tentative settlement last month with dozens of his accusers. Other civil complaints against Weinstein remain active.

Eric Bachman, a lawyer in Chevy Chase, Maryland, who has represented employees in discrimination cases for two decades, said the criminal trial will encourage more victims of abuse and harassment by other powerful people to come forward. And if Weinstein is acquitted? Still, “the fact that these complaints were taken seriously and vetted and pursued will have a very positive impact on encouraging people to speak up.”

As it is, the Time’s Up Legal Defence Fund said it receives some 80 new requests daily from women asking for help finding legal counsel or advice. In the last two years, hundreds of men, and some women, have lost their jobs or faced professional repercussions after being called out for sexual misbehaviour. Companies have changed outdated policies and 15 states amended or updated workplace-harassment laws. One in five workers is now required to go through sexual harassment training, up from one in 100 before the MeToo movement.

“People’s perceptions about sexual assault and rape of women have evolved,” said Douglas Wigdor, a lawyer who represents a Weinstein accuser who may testify at the trial, and two other women who have made claims against the former producer. “Now people understand that it’s not something that happens just at knife point or at gun point, and women don’t necessarily run to the police immediately. There are power dynamics also at play.”

That is progress that won’t be stopped if Weinstein should walk free of the criminal charges, Time’s Up’s Tchen said. “I firmly believe the outcome of the trial does not affect momentum, either way, because this was never about just one person.”

-With assistance from Jeff Green.

Bloomberg News

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