Editor’s Note: Caroline Polisi is a federal and white collar criminal defense attorney at Pierce Bainbridge in New York City and an adjunct Lecturer in Law at Columbia Law School. She frequently appears on CNN as a legal analyst. Follow her on Twitter: @CarolinePolisi. The views expressed in this commentary are her own. Read more opinion on CNN.
On the eve of Harvey Weinstein’s criminal trial in New York for felony charges on two counts of predatory sexual assault, two counts of rape and one count of a criminal sexual act, he’s been charged in Los Angeles with forcible rape and sexual battery, among other serious violent sex crimes. If convicted of the charges in the LA complaint, which stem from two alleged encounters with separate victims on consecutive nights in 2013, he faces up to 28 years in prison. Weinstein will be expected to appear in court in LA to face the charges upon the conclusion of his New York trial.
Weinstein has denied any criminal wrongdoing and contends that any sexual acts he engaged in were consensual.
I’ve asked in previous columns whether or not the #MeToo movement, catalyzed over two years ago by bombshell revelations about Weinstein’s alleged decades-long sexual predation, would infiltrate our criminal justice system in meaningful ways. It has clearly shattered cultural norms and radically altered our collective understanding of acceptable behavior, but the court system frequently lags behind cultural revolutions and it was unclear early on whether any real change to the technical and procedural mechanisms available in our criminal justice system – many of which have been entrenched for decades – would occur to keep up with the times.
Two years later, the answer is a resounding yes, a transformation is happening. The landscape in which law enforcement and prosecutors can investigate and try sexually violent crimes has fundamentally changed.
For example, even though Weinstein’s New York charges stem from alleged assaults of two women, as many as six will tell their stories to the jury. One of those witnesses is actress Annabella Sciorra, who claims Weinstein raped her in the early 1990s in her own apartment. Because the statute of limitations has run out on prosecuting that crime, prosecutors will use Sciorra’s testimony to bolster their predatory sexual assault charges (which requires a showing of sex crimes against multiple accusers).
Additionally, prosecutors plan to put on three more witnesses who allege Weinstein sexually assaulted them, in order to show a pattern of predatory sexual behavior. That may sound reasonable to a layperson, but traditionally these kinds of witnesses (known generally as “prior bad acts witnesses” or “Molineux witnesses” in New York) have been excluded from testifying.
The rationale for excluding them is one of due process for the defendant: the government should have to prove its case in chief with evidence of the crimes alleged, not with innuendo and prejudice. Prior bad acts witnesses are considered too prejudicial in this regard and have been systematically excluded from sex crimes cases.
Until now. Judges are finding these types of witnesses to be more probative to the prosecution’s case than prejudicial to the defense in the wake of #MeToo. And that means a greater chance at conviction.
Take Bill Cosby’s June 2017 sexual assault trial, which took place before news of the Weinstein scandal broke. Cosby’s case was one in which the judge allowed only one prior bad acts witness to testify.
The jury hung. In Cosby’s 2018 retrial – after the #MeToo movement – the same judge allowed five such witnesses to testify. Cosby was convicted and now sits behind bars.
When announcing the most recent criminal charges against Weinstein, which are the first charges stemming from a task force created in 2017 in response to assault allegations in the entertainment industry, Los Angeles County District Attorney Jackie Lacey noted that sexual assault cases are among the most difficult to prove. But she also noted that California law now permits victims of uncharged sexual assault to testify that a defendant has a propensity to commit sex crimes, “providing valuable supporting evidence for other sex crime victims.”
The statement is a warning to Weinstein, as it should be to other alleged sexual predators: the ways in which the court system protected you before are changing.
Statutes of limitations are being extended or even nullified for certain sex crimes; juries better understand that there is no playbook for how and when a victim of sexual assault reports abuse; and serial sexual predators can and will be confronted with their previous conduct in court, even if that conduct is not chargeable. The result is proof that #MeToo has left an indelible mark on our criminal justice system and will result in more prosecutions and convictions for sexual violence. And that means more justice for survivors.
