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Harvey Weinstein

The Challenges of Prosecuting Harvey Weinstein

The Hollywood super producer has not been charged with a crime, but he is being investigated by cops in at least three cities. Will it amount to anything?

by Allie Conti
Oct 23 2017, 4:00am

Left photo by Spencer Platt/Getty Images. Right photo by by Mustafa Yalcin/Anadolu Agency/Getty Images

Early this month, the New York Times finally put into print what had apparently been an open secret in Hollywood for decades: Super producer Harvey Weinstein has a long history of mistreating women. His alleged misdeeds at first seemed to consist mostly of serial sexual harassment—until the New Yorker published interviews with 13 women about Weinstein, including three who said he raped them. Several more women have accused him of rape in the days since, while Weinstein has denied all allegations of nonconsensual sex.

Weinstein was fired from his own company on October 8, and, perhaps emboldened by the quick comeuppance, a veritable deluge of women has emerged to share horrifying stories about the disgraced mogul. As Hollywood players went on a public soul-searching mission, outraged onlookers called out actors they saw as complicit, as well as those whom they deemed hypocrites. In recent days, men accused of abusing their power across the media industry have been forced from their jobs amid a concerted conversation about sex, gender, and power in America. Meanwhile, Weinstein himself is said to have spent time in some kind of sex-rehab facility, where he was reportedly alternating between boredom and rage over what he considers a conspiracy against him.

But maybe he should be worried about more than a thrashing in the press. Though he has not been charged with a crime, after the two reports dropped, the New York Police Department and Metropolitan Police in London mounted criminal probes of Weinstein, and the Los Angeles Police Department has followed suit. Still, with years having passed since some of the incidents in question and a presumed lack of physical evidence in almost every case, is it really plausible he gets charged, much less convicted and sent to prison for a sex crime?

For some perspective, I talked to Shan Wu, a former sex crimes prosecutor for the Department of Justice and current criminal defense attorney in Washington. Here's what he had to say.



VICE: Weinstein's been accused of sex crimes in multiple cities now, and multiple DA's offices are looking into charges. How do they decide whose turf a sensational case like this is?
Shan Wu: Where there can be a turf war, sometimes, is the question of who's going first. But there won't be a question of New York saying they're going to file charges and Los Angeles agreeing not to. They'll just all go about their own investigations. Then, if [Weinstein] was finished with one case, there could be an extradition filed to bring him to another state.

This is starting to bear some resemblance to the Cosby scandal in terms of the sheer number of accusers. But in that criminal trial, only one out of about 60 women was allowed to testify. Does it matter at this point, then, if more women continue to come forward against Weinstein?
The problem with many of the Cosby allegations is that many of them occurred too long ago. [But] New York has done away with the statute of limitations for [rape] felonies, so I don't think there will be a problem with deadlines like there was in that case.

But the way that many more women coming forward affects a criminal case is that prosecutors are more likely to take a case seriously and give it a hard look because it shows there's a real pattern of predator behavior going on. Prosecutors and police are skeptical and hesitant to take cases where it's really just a credibility case, where one person has accused another of doing something—and they don't have evidence or DNA or anything like that. Building a critical mass of women does start to shift the calculus.

The Manhattan DA in 2015 had Weinstein on tape coming close to explicitly acknowledging he groped Italian model Ambra Battilana Gutierrez, but did not bring charges. What counts as a slam dunk here, if not a tape like that?
I think a slam dunk was with [the Brock Turner case], where witnesses came across him assaulting an unconscious woman. There's no defense to that whatsoever—being caught in the midst of a sexual assault. So if there's video of it, that sort of thing. With the sting operation, I think you'd have to get someone saying, 'I'm sorry I did that to you. I know you didn't want me to do it.' The key things for a sting would be the accused person to admit they did something without consent. "I'm sorry I offended you" is not gonna cut or "I didn't realize you felt that way."

That Brock Turner example is such an outlier—a sexual predator isn't likely to assault someone in a place where there are witnesses. But might accounts from former assistants and employees who could at least corroborate basic details of Weinstein meeting with some of the alleged victims count for something?
For a slam dunk, you either literally need someone to see the crime happen, or the accused person needs to admit that it happened. But not all cases need to be slam dunks. I've tried many cases and won them where it was the victim's word against the accused, saying it was consensual. The case has to be built. If Weinstein were to deny this ever happened and say, "I have no idea who this woman is, much less did I ever assault her," then the case could be won by showing through testimony or hotel records or something that he did meet the woman. One of his assistants might testify that they picked her up and brought her over for a meeting. Now he would be caught in a contradiction.

That's the first step—to show they were in the same place together. Then you move to figuring out how believable her version of events is versus his. A lot of strategy goes into that. The reason so many defendants don't testify is because it's very easy to get tripped up in cross-examination and not be convincing. Then he begins to look like a liar about everything else.

If he goes to trial, though, could some of the assistants or so-called honeypots—accused of facilitating his alleged predation—be charged as accessories?
Theoretically, they could be charged with some sort of conspiracy, for helping him to do this. I think the likelihood of that is very low because sexual predators are not broadcasting what they plan to do. They do it in private when they feel like there's an opportunity. To the extent that these assistants were helping to procure women, Weinstein was not going to say to them, "Hey, bring me this victim, so I can assault them." He's gonna keep up the pretense of it being a business meeting. They may have a suspicion of what's going on, [but] I think that's where a prosecutor is gonna say, "This person is more valuable to me as a witness than someone to charge who will clam up and not testify."

Does it complicate things that lots of these women came forward in the media or on Twitter before talking to a cop?
Yes. That hurts the credibility of the person making the accusation, because a defense lawyer is going to ask why they didn't go to the police. However, on the other side of that, when you have so many people of coming out, the critical mass indicates something was really happening.

If a DA is trying to build a case, can he or she only use information that appears in police reports, or can they lean on reporting by the Times or the New Yorker as well? And if, say, Manhattan DA Cy Vance—who's been criticized for not filing charges two years ago—were to go ahead and do so, could he use anecdotes set in other states to make his case?
Yes. So let's pretend only New York decides to prosecute him. They would be free to bring in women from other states or even other countries to talk about what he'd done, with a big caveat: if the judge lets them.

They can only formally charge a defendant with allegations that have been formally filed. So if a person wants him charged with assaulting them, there has to be a police report, and a prosecutor has to bring a charge. But the way that people who haven't gone to the police can be used are as evidence of his pattern of behavior. And I think the one witness they did allow in Cosby came in under that exception. There's an exception to what they call a hearsay rule, and to something being too prejudicial if you're using it to show what's called modus operandi. That's going to be a huge fight if one of these cases goes forward criminally or civilly. If a judge rules that many of them can come in, I think that's going to be very overwhelming evidence, and he would likely plead guilty.

Things are not going to go well if you sit there silently, and 25 people come in and say you did the same thing to them.

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