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.
_________________________________________________________________
[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
Wow! This article is disturbing. With so many accusers, surely justice will be met. But why have so many woman been silenced by settling with Weinstein? The wealthy elite have more power in litigation because they can hire the biggest and best lawyers who work their magic. The magic may not be legal or ethically right, but these lawyers know how to attack the vulnerabilities of their accusers. The fact that Weinstein associated with The Black Cube and relied on their legal expertise is proof of this. Could this become or is it already a class action lawsuit? An impartial jury would prove difficult to find in this case, but doable. I honestly didn't know too much about the case until reading this article. I believe due process could be served in the Weinstein case.
ReplyDeleteYes Raelene, it is horribly disturbing. Great question about the Class Action, I'm glad you picked up on it. There are actually THREE class action cases pending. https://www.indiewire.com/2018/06/harvey-weinstein-miramax-class-action-lawsuit-rape-1201970492/
DeleteI still wonder, even if Weinstein and The Weinstein Company were to lose a class action suit (which would probably only result in them having to pay a massive fine), is that enough to atone for his horrible actions; is justice served for his victims?
I believe it will be incredibly difficult for Weinstein to receive a fair trial, particularly in light of the publicity surrounding the allegations and the prominence of the #metoo movement. Weinstein has already been tried in the court of public opinion and found guilty.
DeleteJaclyn, this is a great point. I always wonder how jurors are able to set aside all of the information they have from the media leading up to the trial to hear the case from a neutral position. I wonder how defense attorneys manage these situations.
DeleteThe concept of grand juries are particularly interesting to me. I've discovered through early research that only about half of U.S. states use grand juries prior to criminal trials to determine whether there is enough evidence, or probable cause, to indict a criminal suspect. States that do not use grand juries often use preliminary hearings to make the same determination.
ReplyDeleteAs we recently learned from Judge Christiansen Forster, grand juries are, by design, intended to favor the prosecutor. An August 2018 article (https://www.theguardian.com/film/2018/aug/03/harvey-weinstein-lawyers-new-york-court-sexual-assault-charges) stated that, "New York law regarding whether prosecutors must let grand jurors know about evidence that could exonerate a defendant is complicated. State appeals courts have noted that prosecutors are obliged to seek justice and not just convictions, but the courts also have said prosecutors aren’t obliged to present grand jurors with all forms of evidence that could favor a defendant."
Given the "complicated" nature of grand juries, I would think that Weinstein's motion to dismiss should be denied.
This comment has been removed by the author.
DeleteGreat point Leila. I also think it's a long-shot that the motion to dismiss will be upheld. But I also wonder, given the massive negative public sentiment toward Weinstein and the enormous pressure the NYDA is under to get a conviction, if it could be argued that the DA's actions are a violation of Weinstien's right to procedural due process. Hypothetically, if the state withholds evidence that could introduce doubt or provide some other procedural "out" for a defendant, regardless of the defendant's actual guilt, do the ends justify the means-or is it simply incumbent upon the defense to try to introduce the evidence as part of their affirmative defense and hope they can pull it off with the jury?
DeleteWhere to begin?? This seems like an issue that is just about everywhere we look. I am conflicted about cases such as this, on one side of the issue—you have sexual assault survivors who look toward the legal system to provide justice and protection for them. On the other side of the issue—we have all heard stories about falsely accused individuals who have been dealing with the consequences of being charged with sexual assault only to find the opposing party had been making false accusations (here is a link of an example of such as case: https://patch.com/wisconsin/portwashington-wi/woman-faces-charges-for-false-sex-assault-accuastions)
ReplyDeleteThese false accusations make up a very small number of the incidences, but can still devastate someone’s life if they are in fact innocent.
With vocalizing my internal conflict, I am facing Jason’s question about if New York’s standard of proof is too narrow? I can see how having a standard of proof demands certain standards so that false allegations are harder to get through the system, however, how many sexual assault victims have the kind of evidence that is needed? Like Jason mentioned, very few cases are actually prosecuted. With that in mind, I would see a benefit from a widening of the standard of proof, this would add more likelihood for justice for the victims. Evidence is harder to obtain the older the case is, but there has to be some corroborative evidence when one individual has multiple accusers.
I’m still puzzled about how to broaden this standard, without removing due process from the other party.
False allegations might indeed damage the reputation of the accused, but as you note, they're incredibly rare -- in fact, about as common as false allegations of other crimes -- and conviction is vanishingly unlikely even when the crime did occur. While our concern for the due process rights of the accused always has merit, we must be careful not to give them disproportionate weight.
DeleteReputation is indeed a key element here, with Weinstein employing an overseas firm to dampen publicity of the case. I'm VERY curious what the federal investigation of Black Cube's dealings will yield.
Three updates since the WSJ article...any of which might prove heartening or disheartening, depending on your outlook:
ReplyDelete1. People's response to the motion to dismiss, which denies it on numerous fronts (with, I think, extreme prejudice);
2. Video has emerged showing Weinstein harassing one of his victims prior to his alleged 2011 attack on her (warning: auto-play!)
3. That hearing scheduled for September 20th has been pushed back to November 8th.
The response from the DA is a great read, and I feel it is constructed more rationally overall than the motion that preceded it. I am especially impressed with its treatment of the motion in re: Count 6. Numerous requests are not discoverable, premature, or otherwise deniable, in the view of the DA. Weinstein's bill for particulars, they argue, is made in the spirit of discovery rather than the proper spirit of clarification. Additional correspondence served on the defendant is viewable in the last few pages of this PDF.
Since Weinstein's attorney could not seem to persuade the DA's office to do the job of discovery for him, it makes a kind of sense that the defense would want to stall for time. Having once worked in a much smaller pond of the entertainment industry, and having met the small-fish version of a director with the same sense of big-shot entitlement*, I'm admittedly following the developments with interest.
*The guy I knew groped a woman backstage hard enough to leave bruises, then told her that because he was gay it did not count as assault, because her body disgusted him and he took no pleasure in it. He also joked about his "casting couch" rights to an actor in a production he directed. There may have been more instances like these which I did not witness. Even at the small-time level, there is an eerie kind of groupthink. "That's just who he is. We have to put up with it if we want to work." I left that comedy theatre company in 2007; he was a co-founder and held a leadership role. The company is now defunct, and I am not above a vindictive smirk as I type this: he's definitely no one you've heard of.
Thank you for sharing that video, Erin. It is absolutely disgusting to watch Weinstein as he forces himself on Melissa Thompson. In the video, there is a quote from Weinstein's attorney stating that Thompson is only seeking financial gain by alleging Weinstein raped her. I was going to research this after the video had ended, but SkyNews mentions at the end that Thompson was not paid for this video, nor did she ask for compensation.
DeleteI also want to echo your response on Jordan's post above: While our concern for the due process rights of the accused always has merit, we must be careful not to give them disproportionate weight. Thank you for bringing this up and including those statistics.
Failure to produce evidence in a criminal case is very damaging to the prosecution, especially if that evidence is exculpatory. Cliven Bundy got off with because prosecutors withheld thousands of documents in this case. https://slate.com/news-and-politics/2018/01/the-cliven-bundy-prosecution-was-a-miscarriage-of-justice.html
ReplyDeleteIf the same actions occurred in a civil context, the consequence, at least in Utah, is that "If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure." URCP 26(d)(4). Withholding evidence is simply not a good strategy.
In reference to the NY Times article it is appalling to learn how long this has actually gone on. While settlements are useful to resolve disputes and avoid the cost and time associated with litigation, in this situation it seems to have perpetuated the problem. Mr. Weinstein clearly believed that there was nothing money couldn’t buy, and he wasn’t entirely wrong. It’s not surprising these women felt vulnerable and were afraid to speak out regarding his behavior. Once they got the courage to speak up, they were quickly stifled with a settlement and then forced again into silence as a condition of the settlement. Gratefully, as Jason pointed out, since the article in the NY Times was published we have seen an overwhelming number of women come forward. Their voices have shed light on Mr. Weinstein’s behavior and how prevalent this issue is as a whole in our society.
ReplyDeleteMedia coverage most certainly will affect the ability to form an impartial jury in this case. These days we are connected to media in so many ways, it’s difficult avoid. Even though we know you can’t always trust what you read or hear, it’s hard to not make any judgments especially when the allegations involve such scandalous subject matter involving celebrities. I wouldn’t be surprised if Weinstein’s hiring of Black Cube may have been another effort to stifle his accusers. Why not? This has been his behavior in the past. It will be interesting to see what the investigation turns up. Unfortunately in this case Prosecutors certainly have their work cut out for them given the standard of proof. I agree widening the standard has it’s upside, but with due process being part of the cost it’s not ideal.
Just yesterday, Bill Cosby was sentenced to 3-10 years in a state prison for sexual assault. It seems like someone new is being accused of sexual assault every week, and it makes sense that victims of these assaults are coming forward now as there has been a huge outpouring of public support and encouragement, which is really great to see. That being said, I (like Jordan) am concerned that the standard of proof may be too narrow in New York. While it is encouraging that NY has eliminated the statute of limitations in criminal assault cases, there may be an ongoing problem with prosecuting assault crimes that happened over a decade ago, particularly in cases where physical evidence is absent. Perhaps the biggest weakness of the prosecutorial team in Cosby’s case was that there was no physical evidence to support the victims’ allegations. This is very much the same issue in Weinstein’s case as well. In Cosby’s case, the first question asked by the jurors during deliberation was “what is the legal definition of consent”? I think this will be—if not THE—major issue deliberated in Weinstein’s case, and based upon yesterday’s events, does not bode well for him.
ReplyDeleteI think it is a fair to consider whether the accusers, victims, or society will feel justice has been served if Weinstein is only convicted in civil court. It seemed the general public felt there was a miscarriage of justice when O.J. Simpson was found not guilty in criminal court, but found liable in civil court. Perhaps this is because of a lack of understanding of burden of proof differences in criminal versus civil court. Or it could be that the families of the victims felt a prison sentence was more appropriate because no amount of money awarded in a civil case would “make them whole.” In any case, victims may feel a financial penalty is not enough restitution for the crimes committed against them.
ReplyDeleteAll of that said, the answer is yes. If Weinstein is found “not guilty” in criminal court and he is found responsible in civil court, then justice will have been served. The process played out fairly (we hope), in the appropriate courts, following the proper procedure. Based on the lower burden of proof in civil court, it seems plausible that there might be a different finding in civil court rather than criminal, where the burden requires proof beyond a reasonable doubt. But different verdicts do not necessarily mean justice was not served.
Great job, Jason! I can't believe this case has gotten big enough to be considered a class action lawsuit - I was interested to see if there were other class actions regarding sexual harassment and when I went searching, I found the following:
ReplyDeleteIn the wake of a class action lawsuit brought by the survivors of sexual abuse by Catholic priests in Minneapolis, the Archdiocese in Minneapolis filed for bankruptcy. The more than 400 claimants in the suit have demanded $80 million, while the church has countered with $13 million. Not unlike most class action cases, this one has been ongoing for several years and the ultimate result will likely be a settlement.
In August 2017, Ford settled a sexual harassment lawsuit at two of its plants for $10.1 million; it was filed in 2014. In 2012, the owner of a Wisconsin McDonald’s franchise agreed to pay $1 million plus damages to 10 female employees. For even more recent examples, look no further than the class action filed against Harvey Weinstein in December 2017 and, in the same month, the lawsuit filed against the leaders of the Fundamentalist Church of Latter Day Saints.
(https://www.superlawyers.com/united-states/article/you-arent-alone-the-class-action-path-for-sexual-misconduct/b7656f2e-8904-443d-88cd-80a73ce60322.html).
In regards to the NY article Jason referenced above, I find a HUGE issue with this comment / assumption: "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." This is a disappointing aspect of our legal system - if a woman is raped, but decides to pursue therapy, meditation, etc. (whatever it takes to for her to move forward from this traumatizing event in her life) but does not continue to "show" to the public that she is physically or emotionally struggling that this will taint her image in front of a jury and may result in defamation of her character, losing the case, and possibly, false allegation lawsuits. I hope to see this change in the future.
This comment has been removed by the author.
ReplyDelete
ReplyDelete. . .and then there’s this. Remember the DA who originally brought the case????
https://www.google.com/amp/s/www.washingtonpost.com/amphtml/news/post-nation/wp/2018/05/08/manhattan-district-attorney-to-investigate-abuse-allegations-against-eric-schneiderman/
I am disgusted by Weinstein’s behavior after reading the article. But I also wonder why if you have been raped, will continue emailing back and forth with your rapist. Because of these Weinstein’s lawyer filed a motion to dismiss the case because of this allegation that all his sexual activities were consensual, Example the alleged rape that took place on 18 March 2013. The woman alleges Mr Weinstein trapped her in a New York City hotel room and forced himself on her. His defense says the emails continued after this date. "I hope to see you sooner rather than later," she wrote on 11 April 2013, followed by "I appreciate all you do for me", sent the next day. "I love you, always do," she wrote on February 8, 2017. "But I hate feeling like a booty call. :)" A footnote in the lawyers' document reads: "This motion is not to ignore that rape can occur in relationships such as an abusive marriage or where the parties have been dating each other for a time." (BBC) The woman has not released a statement. Another woman settled a sexual assault with Weinstein’s legal representatives, and accepted 1M as a settlement, she later regretted. He has settled with many of his employees specially women whose lawyers accepted those deals.
ReplyDeleteDavid Boies, Weinstein’s lawyer also stated that contracting with the two agencies for investigation was a mistake. He said he did not select or directed the investigators. He said, at the time it was a reasonable accommodation for a client. But obviously they were very intimidating and were collecting names and placing calls that, according to some sources who received them, felt intimidating. Ironically Boies personally hire Black Cube and directed them to attempt uncovering information to stop the publication of the time’s story about Weinstein abuses. The investigations were theoretically protected by attorney-client privilege, which could prevent them from being disclosed in court. The New Yorker also published the 2015 audio recording in which Weinstein admits to groping Gutierrez. Rule 26(b)(3)(c) ii. The Due Process Clause: The Fourteenth Amendment reads, in part, that no state shall “deprive any person of life, liberty, or property, without due process of law.” Definitely these women were deprive of dignity. But also a jury might not be impartial in part of this statement by Benjamin Brafman said, "If a woman decides that she needs to have sex with a Hollywood producer to advance her career and actually does it and finds the whole thing offensive, that's not rape." Rhetorically addressing such a woman, Brafman said, "You made a conscious decision that you're willing to do something that is personally offensive in order to advance your career. In part people might find that this is very controversial.
What other evidence would the prosecutors need besides the interview and written statements of Weinstein’s victims? Rule 26. Now if Weinstein is convicted, he will face life prison which in my personal opinion the grand jury should send a message to predators who use their power to commit crimes at any level.
Oh, Jason, you have picked a case that makes me angry. Weinstein is a slimeball, but he does deserve his day in court. I have been having this very discussion with friends of mine, not specifically about this case but about other timely situations in the news. How do you prove an assault of any kind? Especially with no witnesses? How is a victim supposed to act, and how is a predator to act? Everyone who has commented previously has brought up some very interesting points. I'm with Jordan--how do you widen the standard of proof so victims can come forward and feel heard and vindicated and hopefully do away with this horrible behavior but also treat those who have been accused fairly?
ReplyDeleteThat said, in response to his hiring of a PR firm--if he is truly innocent and feels like he is being pursued unfairly, being represented in the media unfairly, and that the original allegations caused people to come forward who were lying and trying to get to him (and, assuming, his money), then he has a right to hire a PR firm if he is able to do so. But in my research into Black Cube, it sounds like they are not a firm to help him "stop media publication of the mounting allegations of sexual-harassment against him”, and, “defend himself through legal action from serious and patently false allegations," but an agency to force plaintiffs to abandon their claims through intimidation and blackmail. THAT, I believe is wrong.
I think it will be very difficult for the victims to win in this case. To prove the allegations will be difficult. Weinstein still has the power and means to get his day in court.
Jason, et al...a great discussion on a very important and timely topic. However, since we have three posts this week; have limited time for in-class discussion and this course focuses on civil, not criminal, cases, I will forego posting my own comments and devoting class discussion to the many topics raised.
ReplyDelete