On Election Day, of all days, word trickled out from Manhattan District Attorney Cyrus Vance that he finally intends to seek an indictment of Harvey Weinstein for sexual assault.
Vance refused to prosecute Weinstein in 2015 for sexual abuse of Italian model Ambra Battilana, after the powerful producer was caught on tape admitting to having previously groped her breasts while aggressively trying to get her into his hotel room. Vance’s office currently is investigating Weinstein for raping a young actress, Paz de la Huerta, seven years ago in her TriBeCa apartment and raping her again a month later.
The evidence that Weinstein forcibly raped de la Huerta appears to be strong. According to the police, de la Huerta “put forth a credible and detailed narrative” and the police were able to corroborate many of the details of her account. The lead investigator stated that there is enough evidence to make an arrest. De la Huerta claimed that in November 2010 after meeting at a hotel, Weinstein offered to drive her home, and then demanded she come inside for a drink. According to de la Huerta, “things got uncomfortable very fast.” He started to kiss her, she resisted, he pushed her on a bed, took down his pants, and lifted her skirt.
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“It wasn’t consensual. It happened very quickly. He stuck himself inside me. I kind of just laid on the bed in shock.”
She says a second assault happened the next month, when Weinstein after repeatedly calling her showed up at her building lobby. She told him to leave her alone but he managed to get her to let him in to her apartment. “I was so terrified of him,” she told Vanity Fair. “I said no, but he was on top of me. I said I don’t want to do this. He kept humping me and it was disgusting. He’s like a pig. He raped me.”
One evidentiary problem that might affect the credibility of de la Huerta’s account is her failure to make an immediate accusation against Weinstein, the absence of a so-called prompt outcry. But given Weinstein’s power and influence, and de la Huerta’s fear of the consequences of complaining, her silence is logical and understandable. She did tell her therapist at the time of the assaults and a few years later told a journalist, who recorded the conversation. These reports have been given to Vance’s office.
There may be additional proof to corroborate her account—from other women who could testify to Weinstein’s sexual misconduct. Indeed, there are reportedly as many as 60 other women who may be able to describe similar sexual assaults they say were committed by Weinstein. As in the prosecution of Bill Cosby, this may be offered to show a pattern of behavior. Some of the similarities include Weinstein’s preying on vulnerable women seeking careers in acting and modeling, his aggressive and repeated sexual demands, his enticements over future job opportunities, and his refusal to leave or accept “no.” This evidence would be admissible in New York under the “Molinieux Rule” to rebut Weinstein’s anticipated defense that these sexual encounters were consensual.
While the NYPD has pressed for an immediate warrant to arrest Weinstein, presently in a rehab program in Arizona, the New York Post reports that Vance intends to present a case to a grand jury as soon as next week and plans to issue a warrant only if that grand jury returns charges against him.
It’s unclear yet what charges Vance would put before the grand jury but we know that in New York, the crimes of “rape” and “criminal sexual act” are divided into several degrees—depending on the extent of physical force used, and whether the victim was mentally disabled, or incapacitated, or under a certain age. But it is important to note that in New York’s Sexual Reform Act of 2000, a significant innovation was added, defining the crimes of “rape in the third degree” and “criminal sexual act in the third degree,” both felonies, in a manner that are both clearly chargeable against Weinstein.
Under the new definition, lack of consent can result not merely from force that overcomes a victim’s resistance but also when “the victim clearly expresses that he or she does not consent to engage in such act, and where a reasonable person in the actor’s situation would have understood such person’s words and acts as an expression of lack of consent.” This new definition for rape and criminal sexual act was specifically designed to address the so-called date rape or “acquaintance rape” situations, the precise situation in which an alleged sexual predator like Weinstein puts his vulnerable victims and where he would clearly understand that his victim was saying no to his aggressive sexual demands.
Vance’s office has made some troubling comments previously, including that his sex crimes unit will not prosecute a sex crime unless it is absolutely convinced they have sufficient evidence to convict. Whether this policy stems from Vance’s botched prosecution of Dominique Strauss-Kahn in 2011 for sexual assault is not clear. Vance also claims that this high bar is necessary to avoid subjecting sex crime victims to humiliating cross-examination, thereby deterring other victims from complaining.
That is paternalistic and presumptuous, reinforcing the longstanding tradition of prosecutors and police of treating a woman’s account of a sexual violation skeptically unless there is substantial corroboration. If de la Huerta complained that Weinstein cheated or defrauded her, her complaint would not be given any extra-special scrutiny. Why should there be a double standard when a complainant claims she was the victim of a sexual assault?
Also, Vance’s concern over protecting the privacy and sensibilities of sex crime victims and not wanting to subject them to a “humiliating cross examination” is difficult to justify. Vance must surely know that New York, as well as virtually every other jurisdiction in the country, has enacted rape shield laws specifically designed to protect sex crime victims from being attacked, invaded, and humiliated while giving testimony. New York’s criminal procedure law (section 60.42) explicitly bars cross-examination into a victim’s prior sexual conduct, sexual habits, and sexual character.
Should Vance obtain an indictment and then proceed to a trial, de la Huerta would likely be cross-examined about her encounters with Weinstein. But she will be able to take the witness stand and forcefully and courageously tell the jury about her experiences with him without fearing that she will be humiliated by having to reveal her sexual background or other facts of a sexual nature that might be embarrassing.
Vance has another opportunity to do the right thing. Whether he will remains to be seen.
