Before the #MeToo movement began in 2017, Harvey Weinstein was a major power player during awards season, with his notoriously aggressive marketing campaigns for his production company Miramax often marking the difference between a win and a loss. So it is perhaps fitting that his criminal trial begins a day after the Golden Globes, one of the biggest events of awards season, where his absence was felt on the red carpet.
Today, January 6th, Weinstein apeared in court in New York City to face criminal charges for five sex-crime charges, including rape and predatory sexual assault. The trial is expected to last approximately six to eight weeks, and 200 journalists from all over the world will be there to cover it.
If convicted on predatory sexual assault alone, Weinstein could face a maximum sentence of life in prison. But regardless of whether or not he is convicted, the trial is a landmark moment in the history of the #MeToo movement, in that it marks one of the first times that a powerful Hollywood figure implicated in the #MeToo movement will be put on trial in criminal court.
What charges is Harvey Weinstein facing?
Despite the more than 80 #MeToo allegations that have been leveled against Weinstein over the past few years, the 67-year-old film mogul is only facing five criminal counts: one count of first-degree rape, one count of second-degree rape, two counts of predatory sexual assault, one count of a criminal sexual act in the first degree. The predatory sexual assault charge requires more than one complainant, and is “the more serious charge that could land him in jail for life” if convicted, says Dmitriy Shakhnevich, attorney and adjunct lecturer in the Department of Law, Police Science, and Criminal Justice at John Jay College of Criminal Justice.
The charges are related to two alleged victims: Mimi Haleyi, a former production assistant; and an unnamed woman who alleges Weinstein sexually assaulted her in 2013. Haleyi, who worked as a production assistant on a Weinstein-produced TV series, alleges that Weinstein pulled out her tampon and forcibly performed oral sex on her at his home in Soho in 2006. The unnamed woman alleges that Weinstein raped her in 2013 in a New York City hotel room.
Weinstein, who has publicly remained adamant about his innocence, has pleaded not guilty to all charges.
Who will testify?
In addition to Haleyi and the unnamed victim who are implicated in the actual charges against Weinstein, who are expected to testify, the prosecution is expected to call three additional Weinstein accusers who are not implicated in any of the criminal charges. These accusers are called Molineux witnesses, a term used in New York State courts to mean a witness who can speak to a defendant’s prior behavior, or “bad acts.” “They’ll be the most important witnesses because they can lend credibility to the victims’ stories,” says Shakhnevich.
One of the most high-profile of such witnesses is expected to be actress Annabella Sciorra, who is best known for her role as Dr. Gloria Trillo in The Sopranos and also starred in Jungle Fever and What Dreams May Come. She has alleged that in 1993, Weinstein forcibly entered her apartment and raped her. Although the incident took place more than 25 years ago — exceeding the statute of limitations for rape in New York — she will take the stand for the prosecution to testify in support of the predatory sexual assault charge.
Despite the objections of prosecutors, Weinstein’s defense team will also call two psychologists to the stand to testify to the psychological phenomenon of false memories, particularly when it comes to “the accuracy and reliability of memory in disputed sexual encounters.”The evidence submitted by the defense is expected to include text messages and emails from Haleyi and the unnamed accuser, suggesting that the accusers wanted to keep seeing Weinstein after the attacks in question and that their motives for accusing him are questionable.
Shakhnevich expects that in response, the prosecution will likely call on witnesses to testify on behalf of the victims and speak to how commonplace it is for victims to communicate with their abusers after they are assaulted. “It’s horrible, there’s no other way to describe it,” he says. “To put these women through this and have experts basically analyze their emotional state after what they believe was rape, is horrible.”
What will Weinstein’s defense look like?
Weinstein’s legal defense team has been something of a revolving door, with the notoriously mercurial mogul hiring and firing lawyers in the months leading up to the trial. He is currently being represented by a defense team led by New York lawyer Arthur Aidala and Chicago-based lawyers Damon Cheronis and Donna Rotunno, who is experienced in defending men against sexual harassment allegations, and has been publicly critical of the #MeToo movement. She is expected to argue that all of the encounters between Weinstein and his accusers were consensual, telling the Wall Street Journal that she hopes the trial encourages women to hold themselves accountable and prompt them to say to themselves, “‘Maybe don’t go to the hotel room, maybe we are having a different conversation.'”
One of the biggest obstacles for the defense will likely be jury selection, which begins on Tuesday. Given the extensive press coverage of #MeToo and the Weinstein case, it will be extremely difficult to assemble an impartial jury, says Shakhnevich. “One thing I thought the defense should explore is waiving a jury trial and going right to the judge,” he says. “The jury here will be permeated by vitriol, and you don’t want a verdict affected by that.”
This was evidenced already by Judge James Burke’s ruling last year banning reporters and the public from attending a pretrial hearing pertaining to key pieces of evidence allowed at trial. Burke was concerned that media coverage of the “highly inflammatory” information presented at the pretrial hearing could impact Weinstein’s right to a fair trial, and his defense team has already expressed concern about that, filing a motion requesting to move the trial outside of Manhattan. (That motion was rejected in October.)
What are the chances that Weinstein will be convicted?
If he chooses to continue with a jury trial, the chances of Weinstein being convicted on at least one of the criminal charges is “pretty high,” says Shakhnevich. Given the sheer volume of the allegations against Weinstein, as well as the increasing cultural awareness surrounding issues related to sexual assault post-#MeToo, the defense’s argument that Weinstein’s accusers are lying has a much lower chance of resonating with a jury than it would have even a few years ago. “I don’t even know if [Weinstein] would have been charged 10 years ago,” he says. The ripple effects of the #MeToo movement are likely to be seen in full force during the trial, and are happening “not just in this city, but everywhere else, too.”