Harvey Weinstein was last seen trucking in and out of one of Arizona’s “sex addiction rehab” clinics. The movie mogul has stated that what he ultimately seeks is a “second chance.”
Given the number of women who have now come forward with complaints that the famed Hollywood producer forced them to engage in a variety of nonconsensual sexual activity, it is likely that Weinstein may eventually find himself seeking his second chance in surroundings far grimmer than a sex addiction spa.
The current trajectory of his scandal suggests that those surroundings are likely to be the well of a criminal courtroom. The courtroom will be populated by a judge and jury who are likely to be the toughest audience he has ever faced.
The defense trailer for Weinstein’s increasingly likely criminal court debut will undoubtedly depict the story of a man now deeply sorrowful for his history of crude and inappropriate behavior with women in the entertainment industry. The anti-hero will seek vindication in the claim that he violated no criminal laws and that all his sexual activity was entirely consensual, with young, attractive women apparently clamoring to make physical contact with a 65-year-old man described by Michael Che of “Saturday Night Live” as looking like “chewed bubble gum rolled in cat hair.”
At an actual criminal trial, Weinstein’s criminal defense lawyers will tell jurors that though the Hollywood tradition of the casting couch may now offend the sensibilities of many modern women, as long as both parties consent, its use violates no criminal law.
The Weinstein scandal when examined in the context of so many women making so many similar accusations at first looks like a prosecutorial cake walk — but experienced prosecutors and defense attorneys know better.
Criminal cases are generally tried one victim at a time and the jury in any individual case will not be allowed to consider the accusations of other women. It is also highly probable that each so-called victim will be portrayed, fairly or not, by defense attorneys as a woman willing to voluntarily trade sexual favors for a shot at movie fame in the time-honored Hollywood tradition.
Jurors are no strangers to this story line, having seen it, ironically, at the movies, on television and even in theater productions. In the absence of the use of physical force or a weapon by the defendant, it is always difficult to prove guilt beyond a reasonable doubt in “non-stranger” criminal sex abuse and rape cases.
Despite all these problems, reports of Weinstein’s particularly obnoxious and repulsive behavior with multiple and often famous female victims may well make any potential criminal cases the exception to the rule in this area.
Even if Weinstein successfully deflects or defends his criminal cases across the country and around the world, his next biggest challenge will be in the realm of civil litigation. In that arena, plaintiffs need only prove their cases by “a preponderance of the credible evidence,” rather than by the more onerous criminal standard of “beyond a reasonable doubt.”
Weinstein’s lawyers would be wise to look to the Cosby case as a road map of the litigation avalanche ahead. Given that Weinstein is 15 years younger than Cosby with much of his alleged improper sexual activity having occurred in the recent past, many potential plaintiffs will be able to file timely criminal and civil cases without the statute of limitation problems faced by virtually all of Cosby’s alleged victims.
Weinstein’s alleged victims are likely to benefit from a legal trend in recent years favoring a lengthening of the time in which alleged victims can file their civil and criminal complaints. Cultural attitudes have also shifted in opposition to the harassment of women in the workplace since Dr. Clifford Huxtable and his famous family dominated the American television scene.
The result of these trends is that many plaintiffs’ sex abuse cases that might have been lost in the past can now be big verdict winners in today’s American courtrooms. Weinstein will face his most difficult battle in his quest for forgiveness and redemption here in the civil lawsuit arena. If he manages to escape a jail cell, he will soon discover that any “second chance” for him will carry a staggering price tag of sequential multimillion dollar civil verdicts awarded by angry jurors eager to send a message that the era of Hollywood’s “casting couch” culture is over.
