Opinion: Reversal in Harvey Weinstein case isn’t the demise of sex crimes prosecution

Opinion by Deborah Tuerkheimer

(CNN) — When a Manhattan jury found movie mogul Harvey Weinstein guilty of sex crimes in 2020, the verdict seemed to herald a new era of accountability. The #MeToo movement was in full swing, and even the most powerful of men were being prosecuted for the kind of abuse that had long eluded punishment.

Last week’s 4-3 decision by the New York Court of Appeals to overturn Weinstein’s conviction brought this new era to what many saw as a stunning end.

The reason for the reversal stemmed mainly from a decision by the trial judge to allow the testimony of several women who were not victims of the charged crimes, and whose allegations could not be prosecuted by the Manhattan district attorney because they either fell outside the statute of limitations or occurred elsewhere. After hearing from these women, along with the main accusers, the jury convicted Weinstein of criminal sex act and rape. He was serving a 23-year prison sentence when the conviction was overturned.

I was not shocked by the reversal, nor do I view this as the demise of sex crimes prosecution. I’m a professor of evidence and criminal law as well as a former prosecutor. So I teach that in most states, including New York, the law is designed to limit jurors’ access to information about a defendant’s past “bad acts,” including — as in the Weinstein case — witnesses who would testify to similar alleged sexual misconduct.

There are exceptions to this rule, which is how the prosecution successfully persuaded the trial judge to allow the additional women to testify, and why three of seven justices on New York’s highest court would have affirmed Weinstein’s conviction. In cases of gender-based violence, the admissibility of a defendant’s history of misconduct is often a close question.

Particularly in these cases, the testimony of additional victims can be critical. My book, “Credible: Why We Doubt Accusers and Protect Abusers,” details the widespread practice of “credibility discounting” and explains why an accuser’s account on its own will not likely be believed. Sexual assault victims routinely anticipate the credibility discount and opt not to report to law enforcement officers, keeping most allegations from ever making their way to the police, much less to prosecutors. When they do, prosecutors know that, as a practical matter, the already high burden of proof beyond a reasonable doubt is even higher for sex crimes.

This extra burden is nothing new. For much of this nation’s history, special skepticism has indeed been the official rule. Exclusively in sexual assault cases, a victim’s testimony alone could not possibly prove guilt. In other words, without further corroboration, a witness who recounted her rape would see her allegation dismissed before ever reaching a jury for deliberation.

When New York first enacted its corroboration requirement, it did so to shield rape defendants from “untruthful, dishonest or vicious” accusers, as one court wrote in 1939. Other states widely adopted this approach.

In 1962, a formal posture of disbelief was enshrined in the Model Penal Code, which cast the unique corroboration requirement as “an attempt to skew resolution of disputes in favor of the defendant.” (The Model Penal Code is published by the American Law Institute, an influential scholarly organization of academics, judges and lawyers. After 10 years of work to reformulate the provisions on sexual assault, an update is expected to be published later this year.)

Today, as a result of efforts by feminist law reformers, the corroboration requirement is no longer formalized by law. But still, within and outside the criminal justice system, credibility is often reserved for those who come forward in numbers.

This reality may help explain the trajectory of Weinstein’s case. When one woman first reported that Weinstein had sexually assaulted her in 2015, her case went nowhere; when dozens of women ultimately came forward, Weinstein became the stand-in for #MeToo abusers — and he was prosecuted.

The trial in February 2020 was without precedent. Aside from Weinstein’s power and fame, the case revealed a novel prosecutorial willingness to proceed in the face of what are called “bad facts”— facts that, however commonplace, tend to create doubts for jurors. Prosecutors could point to no physical injury or weapon; the accusers delayed reporting and maintained contact with Weinstein (some intimate) after the assaults; and their accounts varied over time.

All this predictably gave rise to familiar credibility attacks on the accusers, along with a countervailing impulse on the part of the prosecution. Of course, prosecutors wanted jurors to hear not only from the main accusers in the case but also from others. Quite apart from the technical evidentiary arguments, the effort to introduce testimony of the additional women was essentially an attempt to compensate for the credibility discount. But with Thursday’s ruling by the Court of Appeals that Weinstein hadn’t received a fair trial, it became clear: However justified, this workaround could not pass legal muster.  

For survivors who continue to confront high barriers to belief, it might well feel like the system is destined not to deliver justice. Yet there is reason to believe in the promise of accountability. As collective understandings of sexual misconduct evolve, so too does our ability to fairly judge the credibility of accusers. Although progress is halting and maddeningly slow, trials such as Weinstein’s help bust the myth of the perfect victim.

Another important innovation is the use of sex crimes experts to educate the jury — and in high-profile cases, the public. Weinstein’s trial featured one such expert, forensic psychiatrist Barbara Ziv, who testified about common behaviors on the part of sexual assault victims. Ziv explained to jurors that notwithstanding considerable variation, most victims don’t physically resist, many maintain contact with their abuser, most delay reporting to law enforcement and memories are often incomplete. “(P)eople come to assess sexual assault with preconceived notions that are usually wrong,” Ziv testified.

In this post-#MeToo age of sex crimes prosecution, I have described sex crimes experts as a needed if partial corrective to the credibility discount.

The injustice of credibility in numbers reaches well beyond Weinstein’s unraveled conviction. (Apart from facing the possibility of a retrial in New York, Weinstein is expected to appeal his California conviction on similar grounds, although the evidence rules in that state may make his argument more difficult.) Regardless of Weinstein’s fate, requiring that multiple accusers come forward before any are believed is not a solution.

The problem is impunity for sexual abuse. Its root is our cultural disposition to doubt accusers.

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