In October 2017 The New York Times revealed multiple allegations of sexual misconduct committed by producer Harvey Weinstein[1]. Since then, over 90 women have come forward with similar claims[2]—prompting and garnering support for the #MeToo movement.
As a reaction to negative media coverage, Weinstein hired a private investigation firm called Black Cube[3] to, “stop media publication of the mounting allegations of sexual-harassment against him”, and, “defend himself through legal action from serious and patently false allegations.”[4].
Weinstein is named in multiple Federal and State civil cases. Allegations in these cases include: human trafficking, racketeering, civil rights violations and defamation.[5]
After months of investigation,Weinstein was indicted by a N.Y. grand jury on criminal charges of predatory sexual assault, criminal sexual act in the first degree, and rape in the first and third degree.[6] If convicted, he faces life in prison.[7]
To get a conviction, prosecutors will need to prove—beyond reasonable doubt—that Weinstein, “subjected another person to sexual penetration, and overcame the victim by force, threat of force, coercion, or deception.”[8]. The standard of proof in the State of New York provides that:
After months of investigation,Weinstein was indicted by a N.Y. grand jury on criminal charges of predatory sexual assault, criminal sexual act in the first degree, and rape in the first and third degree.[6] If convicted, he faces life in prison.[7]
To get a conviction, prosecutors will need to prove—beyond reasonable doubt—that Weinstein, “subjected another person to sexual penetration, and overcame the victim by force, threat of force, coercion, or deception.”[8]. The standard of proof in the State of New York provides that:
"no conviction of an offense by verdict is valid unless based upon trial evidence which is legally sufficient, and which establishes beyond a reasonable doubt every element of such offense and the defendant`s commission thereof."[9]
The Rape, Abuse & Incest National Network has reported that for every 1,000 rapes committed in the US, seven lead to felony conviction, and only six lead to imprisonment.[10] According to former N.Y. State sex crimes prosecutor Meredeth Donovan, sex-based cases are some of the most difficult to prove. In an article for the New York Daily News, Donovan stated:
"To prove rape in New York, I must prove penetration. To prove criminal sexual act, I must prove contact between certain body parts. The perpetrator must be identified, arrested and evidence collected without violating constitutional protections."
"once inside a courtroom, the victim's behavior before, during and after the assault will be used to assess credibility. We strive for impartiality but personal experiences color our assessments. If the victim's behavior doesn't comport with what we view as normal, her credibility will suffer."[11].
Prosecutors have yet to produce any physical evidence in this case.
Last August, Weinstein’s attorney filed a motion to dismiss the N.Y. case[12], asserting that the N.Y. District Attorney withheld letters, photographs and email from the grand jury—evidence he says discredits Weinstein’s accusers and proves that they each maintained consensual relationships with Weinstein well after the alleged assaults occurred.
Federal prosecutors in New York recently started an investigation into Weinstein’s dealings with Black Cube, and whether the firm committed wire fraud, and broke “other laws” in an effort to, “silence women who accused [Weinstein] of sexual misconduct”. Weinstein’s attorney claims that, “Black Cube was retained by prominent lawyers,” who Weinstein believed, “would never have authorized illegal activity of any kind.”.
Weinstein continues to deny all wrongdoing.[13]
Possible questions up for discussion:
1. What are your thoughts on the New York Times article?
2. What do you think about Weinstein’s hiring of Black Cube?
3. What are your thoughts on New York’s standard of proof?
4. Considering the media coverage of this case, is an impartial jury even possible?
3. What are your thoughts on New York’s standard of proof?
4. Considering the media coverage of this case, is an impartial jury even possible?
4. What should happen if it is proven that the N.Y.D.A. withheld evidence from the grand jury?
5. If Weinstein is only convicted in the civil cases, will justice have been served for his accusers?
6. Could substantive due process be an issue in this case?
7. How should federal and state investigators/prosecutors proceed if Weinstein is acquitted or exonerated from the other criminal and civil suits filed against him?
In formulating your comments consider Articles IV, V, VI & XIV of the US Constitution, due process, equal protection and jurisdiction.
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[1] https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html
[2] https://www.flare.com/celebrity/harvey-weinstein-victims/
[3] https://www.blackcube.com/
[4] https://www.wsj.com/articles/federal-prosecutors-exploring-new-charges-against-harvey-weinstein-1536268233
[5] https://www.thewrap.com/harvey-weinstein-slapped-3-new-criminal-charges-new-york/
[6] https://www.nytimes.com/2018/05/30/nyregion/weinstein-indicted-rape.html
[7] New York Penal Law § 70.00
[8] New York Penal Law § 130.70
[9] New York Penal Law § 70.20
[10] https://www.rainn.org/statistics/criminal-justice-system
[11] www.nydailynews.com/opinion/convictions-sex-crimes-cases-hard-article-1.1053819
[12] https://images.law.com/contrib/content/uploads/documents/389/39573/8.3.18-Weinstein-Motion-003.pdf
[13] https://www.wsj.com/articles/federal-prosecutors-exploring-new-charges-against-harvey-weinstein-1536268233
