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New York’s highest court overturned Harvey Weinstein’s sex crimes conviction last week, to cries of anguish from women despairing that the legal system lags behind the #MeToo reckoning in delivering justice for survivors of sexual harassment.
But the 4-3 ruling laid bare a separate tension plaguing criminal justice: the fear that eroding protections for defendants could hurt Black and brown men, another historically harmed group.
The majority ruled that the trial judge should not have allowed testimony from women whose accounts of Weinstein forcing sex on them were not part of the charges. Sexual harassment cases are often messy, frequently with no witnesses and circumstances where women pressured to placate powerful men also had consensual sex with them.
The central issue often comes down to whether the jury believes the woman or the man. As in the equally notorious case of Bill Cosby, this testimony was intended to establish patterns that show intent and bolster women’s credibility. (Cosby’s legal journey led first to a mistrial, then conviction, and ended with his successful appeal on different grounds.)
For years, women who accused men of sex crimes either found few prosecutors willing to charge men or few juries willing to convict them. It was hard to provide concrete evidence, and courts allowed lawyers to introduce testimony about women’s prior sexual behavior. Women had to prove they forcibly resisted, or defend against sexual shaming.
“Rape is a charge easy to allege and hard to prove,” Elizabeth M. Schneider, a professor at Brooklyn Law School, told me. She said standards were historically based on the fear that “women are going to falsely accuse men of rape. That’s why rape law had so many evidentiary exceptions compared to any other crime.”
Some of these rules changed as attitudes shifted. Lawmakers and court decisions can alter rules of evidence. In 1994, Congress amended federal rules to admit evidence of prior sexual assault or child molestation in some cases, said Stephen J. Schulhofer, professor emeritus at New York University Law school. That applies only in federal courts, but some states have also altered some rules of evidence, including New York, California and Pennsylvania.
The whole power of the #MeToo movement, said Jeannie Suk Gersen, professor at Harvard Law School, lay in repeated accounts of sexual harassment: “Because it happened to me, too, and you, too, it’s more likely to be true that it happened at all.”
Yet allowing testimony of prior accusations of harassment runs up against a fundamental legal principle that prior “bad acts” should not be admitted as evidence. Doing so could bias a jury against the defendant, since they’re likely to believe a person will repeat past actions.
“I cannot see a principle of fairness that would say that would be a good rule to adopt, even as I understand the impulse to do so and feel that impulse myself,” Gersen said.
The risk, Schneider, Schulhofer and Gersen told me, is that looser rules of evidence could be applied in a range of cases, leading to convictions of innocent people. That might fall most heavily on historically vulnerable groups. “Even if a law is conceptually sound, it will be applied in a discriminatory way,” Schulhofer said.
That’s why Eliza Orlins, a public defender in New York, hailed the appeals court’s Weinstein decision in an interview with Vox. The judges’ reasoning reflected concerns of potential discrimination, Schneider and Gersen believe. And that also explains some of the scrambling of usual fault lines in the New York decision: Most of the judges ruling for Weinstein were liberally-minded women overturning the conviction of a man accused of multiple sexual assaults.
Gersen said that’s “why you have those judges expressing worry about not just the Harvey Weinsteins of the world, but also about poor defendants, and African American defendants, who are members of groups that have been disproportionately arrested and prosecuted not just for sexual crimes but all other sorts of crimes.”
Gersen also noted another example of a case where outrage over a ruling backfired to hurt vulnerable people: California voters recalling a judge who handed down a lenient sentence to Brock Turner, a Stanford swimmer accused of sexual assault. Gersen cited a study concluding that judges fearing a similar political outcome handed down harsher sentences in a wide range of cases, with Black and Latino men most affected.
So does protecting the rights of defendants mean that sex crimes survivors will be denied justice? An outspoken dissent in the Weinstein ruling by Judge Madeline Singas raises that very specter. “Men who serially sexually exploit their power over women — especially the most vulnerable groups in society — will reap the benefit of today’s decision,” she wrote. “This court continues to thwart the steady gains survivors of sexual violence have fought for in our criminal justice system.”
Schneider also fears a broader backlash to the #MeToo movement, as well as lingering prejudices about women’s behavior. Weinstein’s lawyers used familiar tactics at trial, arguing that women should have known not to go to his hotel room, or that women manipulated him in order to get good roles in his films.
How does the legal system balance these competing interests? Schulhofer spent 10 years revising sexual assault provisions in a model penal code for the American Law Institute. He argues that the standard for conviction needs to be based not on the idea that a woman was forced into sex, but that she said she did not want sex — which would be easier to prove and not change evidence standards or violate fairness. “If you accept that new standard, you don’t have to prove violence; you have to prove that they didn’t have consent” of assault survivors, he said.
Whether there is pressure to change rules of evidence or other legal standards, the next move will be in California, where Weinstein’s attorneys have vowed to appeal his other conviction. Judges there will face the same tensions, and the same difficult choices.
