Harvey Weinstein Guilty of Rape, Not Guilty of Predatory Sexual Assault

by Sonia Hickey & Ugur Nedim

Former Hollywood heavyweight Harvey Weinstein has been convicted of sexual charges by a jury in New York.

A jury found Mr Weistein guilty of forcing a sexual act on his former production assistant Mimi Haleyi at his apartment in July 2006 and raping former aspiring actress Jessica Mann at a hotel in 2013.

The charges

He was found not guilty of the most serious charge, predatory sexual assault, in relation to allegations he forced sex on actress Annabella Sciorra in 1993 or 1994. That offence would carries a sentence of 10 years to life in prison and is viewed almost as seriously as murder.

Mr Weinstein was facing four counts of predatory sexual assault, along with one count of a criminal sexual act in the first degree and one each of first-degree rape and third-degree rape.

The first degree rape charge comes with a maximum sentence of 25 years imprisonment, and a four year minimum sentence applies.

The Hollywood heavyweight’s sentencing is scheduled for next month.

Landmark victory for #MeToo

It’s a landmark decision for the #MeToo movement, which encourages victims to speak up about sexual assault by those in positions of power and sparked a global conversation about gender and misconduct in all walks of life.

The movement was jump-started after the New York Times and New Yorker published allegations against Weinstein in late 2017.

Civil rights activist Tarana Burke, one of the original creators of the #MeToo movement, said in a statement, “Harvey Weinstein operated with impunity and without remorse for decades …. Yet, it still took years, and millions of voices raised, for one man to be held accountable by the justice system.”

She added: “This case reminds us that sexual violence thrives on unchecked power and privilege. The implications reverberate far beyond Hollywood and into the daily lives of all of us in the rest of the world.”

Appeal

Mr Weinstein’s lawyer, Donna Rotunno, who has a near-perfect track record of winning cases and carved out a niche career defending men accused of sexual assault, has already confirmed there will be an appeal against the convictions.

During the trial, Mr Weinstein was free on a $2 million bond and was required to wear an ankle monitor. An appeal against the revocation of Weinstein’s bail was lodged within hours of the trial ending.

A jury of seven men and five women heard almost three weeks of testimony. The prosecution brought a total 28 witnesses – some of which were “prior bad acts” witnesses – a term given to others who have credible sexual assault claims against a defendant which fall outside the statute of limitations for prosecution. The closest equivalent to this in New South Wales is known as tendency evidence, which is a form of evidence that seeks to establish that the defendant has is inclined to act in a particular way.

Legal experts say the witnesses were vital tool in securing the conviction, while those in favour of the presumption of innocence contend that such testimony can be unfairly prejudicial to defendants and should never be used to cloud the issues before a jury.

This type of evidence was also used in the high profile trial of Bill Crosby in 2017.

The Weinstein defence brought seven witnesses, including former friends of accusers who disputed their testimony.

Yet to come: A trial in Los Angeles

Mr Weinstein is also facing separate charges in Los Angeles. It is unclear whether he will be extradited to face that trial.

Legal commentators say Mr Weinstein will likely be sent to Rikers Island, the notorious New York jail that’s been plagued by abuse and mismanagement. His lawyers have requested that he be placed in the medical unit of the prison given his age and health. It’s a far cry from the glitz and glamour of the Hollywood showbusiness lifestyle he enjoyed for most of his alt life, surrounded by young women he was able to take advantage of.

The Harvey Weinstein trial is already being hailed as an ‘historic’ event by victims’ groups.

The offence of sexual assault in NSW

The common law offence of rape has been abolished in New South Wales.

Sexual assault is an offence under section 61I of the Crimes Act 1900 (NSW) (‘the Act’) which carries a maximum penalty of 14 years’ imprisonment.

It is defined as where a person “has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse”.

What is sexual intercourse?

‘Sexual intercourse’ is defined by section 61H of the Act as:

“(a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:

(i) any part of the body of another person, or

(ii) any object manipulated by another person,

except where the penetration is carried out for proper medical purposes, or

(b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or

(c) cunnilingus, or

(d) the continuation of sexual intercourse…”

What is consent?

Section 61HE of the Act provides that a person consents to sexual activity if he or she freely and voluntarily agrees to it.

The section proceeds to state that an alleged offender knows there is no consent if he or she engages in sexual activity, or incites anyone to do so, in circumstances where he or she:

  • knows the alleged victim does not consent, or
  • is reckless as to whether the alleged victim consents, or
  • has no reasonable grounds to believe the alleged victim consents.

In deciding whether there is consent, the court must consider any steps taken by the alleged offender to ascertain whether there is consent.

The court cannot take into account any self-induced intoxication by the alleged offender.

The section makes clear there is no consent where the alleged victim:

  • does not have the capacity to consent due to factors such as their age (outlined above) or cognitive ability, or
  • does not have the opportunity to consent because they are unconscious or asleep, or
  • consents because of threats of force or terror, or
  • consents due to being unlawfully detained, or
  • consents because of a mistaken belief:

(a) as to the identity of the alleged offender,

(b) that the two are married,

(c) that the activity is for health or hygienic purposes, or

(d) that arises through any fraud.

The grounds upon which it may be established that the alleged victim did not consent include that he or she:

  • was substantially intoxicated,
  • was intimidated, coerced or threatened in any way, or
  • was under the authority or trust of the alleged offender.

The section further makes clear that a failure to resist the activity not in itself to be regarded as establishing consent.

What are the defences?

In addition to the requirement that the prosecution must prove each element of the relevant offence, it must also disprove beyond reasonable doubt any of the following defences if properly raised:

  • Duress, which is where you were threatened or coerced,
  • Necessity, where the act was necessary to avert danger, and
  • Self-defence, where you engaged in the act to defend yourself or another.

Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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