Harvey Weinstein: What the media mogul’s retrial could mean for the Me Too movement

Harvey Weinstein, once a titan of Hollywood’s media landscape, is set to face retrial for rape and sexual assault in November after his conviction was overturned in April. According to the bench that reversed the decision, the judge who conducted the initial trial erred in admitting the testimonies of three additional witnesses: women who had not made formal complaints against Weinstein but were allowed to depose in court that he had sexually assaulted them.

The revelations against Weinstein in 2017 had sparked the global MeToo movement of solidarity among victims and survivors of sexual abuse. At least 87 women, including veteran actors, accused Weinstein of a spectrum of misconduct, ranging from inappropriate advances to assault and rape. In India too, a parallel movement emerged in the film industry and other sectors, including the media.

In 2020, a New York trial court convicted Weinstein of first-degree criminal sexual act and third-degree rape, sentencing him to 23 years in prison. But when the New York Court of Appeals overturned the verdict in April, it missed a chance to lay down a framework on the legal value of the accounts of sexual abuse by witnesses who had not sought recourse within the framework of the law.

Weinstein’s case raises a critical question: can the collective voices of multiple survivors and victims, even of those who have not made formal complaints, serve as evidence against abusers?

This is especially significant in light of the wave of sexual abuse allegations against prominent figures in the Malayalam film industry after the release of the Hema Committee Report on August 19, detailing the working conditions of women.

Ahead of Weinstein’s retrial, yet another woman has come forward with charges of sexual assault against him. How the court proceeds will have significance not only for validating the claims of individual victims but the broader Me Too movement, which underscores the power of collective voices.

The transition from a single victim – whose account may be doubted – to a unified chorus of “me too” bolsters the credibility of each individual’s claim. At its core, “MeToo” serves as collective evidence: “What happened to you, happened to me too. Thus, people may believe that we are telling the truth.”

Complexities of consent

At the heart of a sexual assault trial lies the issue of consent. Establishing consent – or the lack thereof – requires an understanding of the mental state of the survivor and the accused at each stage of the encounter.

Proving that a victim did not consent is essential, but so is demonstrating that the accused was aware of this lack of consent and proceeded nonetheless.

Unlike rape by a stranger, this enquiry becomes particularly convoluted in cases of “acquaintance rape”, where the accused knows the victim and often takes advantage of societal misconceptions about consent or regressive norms in his defence.

A potential solution lies in the introduction of a key tool of evidence in sexual offences: Molineux witnesses.

Under the laws of the state of New York, Molineux witnesses or prior-bad-act witnesses, can allege previous misconduct by the accused under certain circumstances, even if they did not lead to formal charges. These testimonies are not intended to demonstrate the defendant’s propensity for criminal behaviour but to establish motive or intent.

In India, Section 54 of the Indian Evidence Act, 1872, also allows for the limited introduction of character evidence concerning the accused when the accused has introduced testimonies of good character.

This was the case when the Delhi district court was hearing the defamation case filed by veteran editor and Union minister MJ Akbar against journalist Priya Ramani who had accused him of sexual harassment soon after the wave of MeToo allegations in India in 2017.

The Delhi court considered the testimonies of women, although not party to the case, who alleged that they had been sexually harassed by Akbar. These testimonies played a crucial role in assessing Akbar’s reputation, ultimately leading the court to rule against him.

Weinstein’s defence

In Weinstein’s defence before the trial court, his lawyers depicted a troubling yet consensual dynamic, portraying a quid pro quo relationship between him and the complainants: sexual favours exchanged for professional advancement.

Despite the complainants testifying that they resisted, Weinstein’s team aimed to exploit myths about the “lead up to the incident” and “the existence of a previous relationship” to defend his perception of consent.

The testimonies of the Molineux witnesses, however, debunked this quid-pro-quo theory. The witnesses explained that in the entertainment industry, meetings would often occur in intimate and fraught settings that enabled assault by influential and powerful men on relatively young, powerless women aspiring to be actors.

But the negative reactions of the witnesses to Weinstein’s sexual advances were a direct indication of his state of mind: that he was constantly aware that he was engineering situations that allowed him to take advantage of the “freeze” or “powerless” state his victims often found themselves in.

Essentially, Weinstein knew that the power imbalance was in his favour and that choice was nothing more than an illusion for his victims. The testimonies of the Molineux witnesses established Weinstein’s premediated intent in his interaction with women, including the complainants.

Missed opportunity

There remain challenges in considering Molineux testimonies because the admissibility of character evidence in sexual assault has long been contentious.

The courts struggle to draw the line between likelihood to commit crime and actual intent. For example, in the 2016 trial of comedian-actor Bill Cosby, the testimonies of women who had not formally accused him were allowed based on the “doctrine of chances”, which suggested that several similar claims increased the likelihood of criminal behaviour, without addressing the question of Cosby’s intent.

But it is important to distinguish between the propensity of an accused to commit crime and the intent when the alleged offence was committed.

Examining the sexual history of individuals could set a dangerous precedent for victims and survivors. Defence strategies often attempt to discredit the victims or portray an “easy” woman who supposedly signalled consent. The 2016 acquittal of Welsh footballer Ched Evans exemplifies this danger, as testimonies about the complainant’s sexual preferences were allowed, ultimately implying that she had consented.

With the rise of “rape shield” laws around the world that limit evidence about the past sexual activities of complainants, such evidence should be severely diminished, if not dismissed, especially when power dynamics favour the accused.

For example, Section 53A of the Indian Evidence Act does not permit a victim’s sexual history to be relevant to consent or the quality of consent.

Testimonies against the complainants, or survivors and victims, must not be used to infer their consent, especially since such accounts are weaponised by the defending team of the accused. At the same time, Molineux witnesses should be carefully considered to determine the state of mind of the accused and challenge the narrative that assault was a one-off incident encouraged by the victim.

In her poignant dissent in the overturning of Weinstein’s conviction, Judge Madeline Singas observed that “that sexual assault cases are not monolithic and that the issue of consent has historically been a complicated one, subject to vigorous debate, study and ever-evolving legal standards”.

As the understanding of sexual offences evolves, so must the legal framework. A nudge towards a victim-oriented approach to criminal justice requires that the voices of survivors – amplified in strength – deserve to be heard and form a foundation to secure justice against abusers.

Mreganka Kukreja is an advocate practising in Delhi.