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Seth Wenig

The #MeToo movement was always fraught with potential for misfires and backlash. But the legions of sexual assault victims who have felt empowered by the sheer number of their voices should not feel diminished by <a href="https://www.washingtonpost.com/style/power/2024/04/25/harvey-weinstein-conviction-overturned/" target=_blank>the reversal of Harvey Weinstein’s 2020 guilty verdict</a> on felony sex-crime charges.

Convicted of a first-degree criminal sexual act and third-degree rape, Weinstein had been serving a 23-year sentence in New York state prison. The 72-year-old Hollywood producer and power broker’s reprieve from justice will be brief, however, and his incarceration uninterrupted. Weinstein still faces a <a href="https://www.washingtonpost.com/style/power/2024/04/25/harvey-weinstein-conviction-overturned/" target=_blank>16-year sentence</a> in California for the 2013 rape of a woman referred to during the trial as Jane Doe 1. Other charges in the same case received mix verdicts.

Few people who followed Weinstein’s New York trial two years ago and heard testimony from several women who claimed to have been assaulted and/or raped by him will be unconvinced of his guilt. Even so, the 4-3 ruling by the New York Court of Appeals seems to this court follower to be the correct one.

The basis of the reversal was that presiding Justice James M. Burke erroneously allowed testimony from women whose accusations were not part of the charges in the case. Their stories, based solely on their say-so, were deemed so prejudicial that Weinstein was denied a fair trial.

This ruling probably would be relatively uncontroversial were it not for the high profiles of the defendant and some of those who testified or made corroborating statements outside the courtroom, including actresses <a href="https://people.com/movies/new-book-reveals-how-a-nervous-gwyneth-paltrow-decided-to-speak-out-against-harvey-weinstein/#:~:text=In%20a%20story%20eerily%20similar,told%20the%20Times%20in%202017." target=_blank>Gwyneth Paltrow and Ashley Judd</a>. The mix of Hollywood and movie stars feeds our lust for scandal and fuels an appetite for justice commensurate with the headlines, not to mention the power differential.

Weinstein has always claimed that all his sexual “relationships” were consensual, but the practical distance between a young actor hoping for a movie role and the man who holds the keys to the kingdom is of chasmic proportions. By today’s definitions of workplace sexual dynamics, there can be no reliable consent between a Weinstein and a struggling actor. (Or, for that matter, between a president of the United States and a young intern.)

Weinstein’s lawyers made the key point — and the New York appeals court’s majority agreed — that witness testimony of “prior bad acts” should not have been allowed because it “was <a href="https://static01.nyt.com/newsgraphics/documenttools/1c6111b72cf84b89/c2523c29-full.pdf" target=_blank>unnecessary to establish the defendant’s intent</a> and served only to establish defendant’s propensity to commit the crimes charged.”

Much as it pains me to say this, the appellate ruling seems, frankly, heartening to anyone unfortunate enough to be consigned to the criminal justice system. Even assuming that all the women were telling the truth, it is equally possible, in the absence of evidence, that they were not. <i>Theoretically.</i> And while <a href="https://www.nytimes.com/2020/01/26/nyregion/harvey-weinstein-trial-accusers-testimony.html" target=_blank>nearly 100 women</a> have spoken up about Weinstein’s sexual predations, such claims aren’t acceptable as “evidence” of the alleged crimes.

Moreover, evidence of prior bad behavior isn’t typically allowed in a trial, though the presiding judge has wide discretion over what is permitted. When the judge rules as Burke did, he risks laying the groundwork for a defense appeal.

In a well-known case I recently covered, the double-murder trial of South Carolina’s Alex Murdaugh, the judge allowed evidence and witness testimony related to separate charges of alleged financial crimes. These were beyond the scope of the murder trial, but lead prosecutor Creighton Waters convincingly argued that the financial crimes were essential to <a href="https://www.law.cornell.edu/rules/fre/rule_404" target=_blank>establishing the defendant’s character</a>, or lack thereof.

Judge Clifton Newman didn’t reach that decision lightly. Before ruling, he <a href="https://www.cnn.com/2023/02/06/us/alex-murdaugh-trial-monday/index.html" target=_blank>ordered a trial-run</a>, so to speak, of the financial crimes witnesses and testimony while jurors were excused. This took at least two days, as I recall. Murdaugh’s conviction on both counts of murder is being appealed, but maybe Newman’s mock trial will blunt the force of his lawyers’ appeal on this point, assuming it’s included.

Now, #MeToo staggers from its second big court failure. The first, in June 2021, was comedian <a href="https://www.washingtonpost.com/arts-entertainment/2021/06/30/bill-cosby-sexual-assault-conviction-overturned/" target=_blank>Bill Cosby’s release from prison</a> after the Pennsylvania Supreme Court vacated his 2018 conviction on sexual assault charges. He had been sentenced to three to 10 years in state prison for drugging and sexually assaulting Andrea Constand in 2004 at his home. As one of his accusers summed up a widely held consensus, overturning a verdict on a technicality doesn’t make him innocent.

The same is surely true of Weinstein, but even rapists deserve a fair trial. The Cosby and Weinstein verdict reversals have taught us a few things: Women who have been assaulted need to collect their evidence and talk to doctors and lawyers as soon as possible rather than wait years to speak up. Without hard evidence, cases such as these are much harder to make and appeals are much more likely to succeed.

#MeToo, meanwhile, has taught us that no woman need be alone in her trauma ever again. There’s no shame attached to being a victim. And would-be perpetrators should be on notice that using power to take advantage of the weak isn’t only a sin but also a crime.

For now, Weinstein and Cosby got lucky, but karma is patient. Their day will come.

Pulitzer Prize for commentary, 2010

H.L. Mencken Writing Award, 1993

Save the Males: Why Men Matter, Why Women Should Care

Kathleen Parker writes a column on politics and culture. She received the Pulitzer Prize for Commentary in 2010.

Kathleen Parker

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