The Kickham Comment - Boston Criminal Attorney Blog
By now, most people have been exposed to what was the seemingly constant drumbeat of the recent Harvey Weinstein sex assault trial and convictions. What’s interrupted this, of course, has been the media overkill on Coronavirus, but if that hadn’t diverted their attention, they’d still be pounding this drum. For those of you who have forgotten the details, Weinstein faced several sex assault charges: 1) One count of first-degree criminal sexual act, two separate counts of rape and two counts of predatory sexual assault. The charges were brought in state Supreme Court in New York.
Weinstein was convicted on two counts: Committing a first-degree criminal sex act involving one woman, and of rape in the third degree concerning someone else. He was acquitted of the charges of predatory sexual assault involving the two women and also acquitted of the one count of first-degree rape.
The charges and convictions were based on testimony by two actresses: Miriam Haley and Jessica Mann, who wanted to perform in films that Weinstein’s company was producing. Haley testified that in 2006 Weinstein forced oral sex on her, and Mann testified that Weinstein raped her in 2013, in the context of what she described as an abusive relationship. Four other women, including actress Annabella Sciorra, also testified that Weinstein “sexually attacked” them, as part of his alleged attempts to use his influence in Hollywood in order to leverage sexual liaisons with current or aspiring actresses.
I have a problem with cases and convictions like this. Don’t misunderstand: I also have a big problem with rape and sexual assault, and I strongly believe that the rights of all people – women and men – to be free of sexual assault should be vigorously protected. NO ONE should be sexually assaulted. But the problem I have with this case- (and similar cases and themes promoted by the #MeToo movement – is the vastly expanded definitions and concepts of what “Sexual assault” and “rape” are. The historical definition of rape has always been precise. Most states, as well as federal authorities such as the FBI define rape as “Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”
That begs the question of what “consent” is. In the Weinstein case, there was ample evidence that the alleged victims consented to the alleged sexual encounters. These people each wanted something from Weinstein: His powerful Hollywood influence and his ability to make them stars – which, if successful, means millions of dollars in earnings, and fame as actors. As evidence that the alleged sexual encounters were consensual, Weinstein’s legal team – including women lawyers – introduced compelling evidence that both Haley and Mann continued to have sex with Weinstein after each of the alleged “attacks”, and further that both of these accusers continued to engage in friendly contact with Weinstein for years after these alleged events. This is evidence of sexual “attacks”? This is evidence of “rape”? As a Boston sex charges defense lawyer, I very much contest that. The evidence does not support it.
The problem here, is that bringing very serious charges such as sexual assault and rape under circumstances such as were present in this case, is that it diminishes the importance of prosecuting “real” or “actual” instances sexual assault and rape. Cases like this dilute the powerful meaning of these terms. When anyone – man or woman – can scream “sexual assault” or “rape” under circumstances such as were present here – i.e.,
- When none of the alleged victims ever reported the alleged acts to police at the time or later,
- When none of the alleged victims ever reported the alleged acts to friends at the time or later;
- When the alleged victims continued to maintain friendly relationship with Weinstein for years afterward, and who clearly wanted something from Weinstein,
those all raise extremely troubling facts.
“Rape” should never have its true meaning diluted. And that’s what cases like this do. The concept, the definition, and the prohibition against it, cease to have their original meaning. It has been the clear goal of the #MeToo movement to liberalize these long-held legal definitions to include almost any kind of sexual comment or overture. Of course, anyone who takes issue with anything that the #MeToo movement says or does, is immediately branded with the new “M” word: Misogynist. (Add to that a knuckle-dragging troglodyte.) Diluting the historical legal definitions of these terms is almost – not quite, but almost – similar to seeing flags at half-mast these days in front of post offices and other government buildings. It used to be that flags were ordered at half-mast when an extremely serious national event occurred such as the death of a President, or 9/11. Now? People can see flags at half-mast, and it barely notice anymore. The average person’s response to this? “I have no idea why; I doubt it’s anything very important.”
If Harvey Weinstein used his influence to obtain sexual encounters with people, then that makes him the following: A creep, a social loser, and pathetic. And if he really committed those acts, then I’d encourage anyone who was truly involved, to sue him and his company civilly, and hit him where it would hurt: Financially.
But to charge, try, convict and imprison someone under circumstances such as these, where there was substantial evidence of continuing consent? That cheapens the real meaning of sexual assault and rape. Let’s keep those terms what they should be: Descriptions of abhorrent acts, where the absence of consent is clear and unambiguous. Otherwise, we devalue the offensiveness of these crimes themselves.