Most people probably believe that Harvey Weinstein is guilty of sexual assault and will be convicted at the end of his ongoing trial in Manhattan.
But as the prosecution case comes to an end, it’s clear the case is not as strong as the headlines, or some activists, suggest. There is a very real possibility that Weinstein will be cleared of the charges and emerge from the courtroom a ruined but officially innocent man.
Let’s be clear Harvey Weinstein is the epitome of an amoral Hollywood Producer — in a field that has a lot of debauched competition. By his own admission, he was a serial cheater on his wife — often with junior employees young enough to be his daughter. He even cheated on his mistresses.
Many people, particularly conservatives, might balk at the thought of having any concern for Weinstein and his legal troubles. He was one of the country’s most outspoken and obnoxious liberals, lavishing money on Democrats and, in particular, Hillary and Bill Clinton. He understood the Andrew Breitbart dictum that “politics is downstream from culture.” He produced and brilliantly promoted every Michael Moore documentary — using the culture to influence politics. He produced the documentaries “Sicko,” which was upstream from Obamacare, “Roger and Me,” which laid the groundwork for the auto bailout, and “Bowling for Columbine,” which popularized gun control.
But Weinstein is facing a trial by mob, and that is not a metaphor. During jury selection there was an actual feminist flash mob outside the court chanting, “The Rapist is You.” It could be heard in the courtroom. On the opening day of the trial, a journalist joined actors/activists Rose McGowan and Patricia Arquette in a press conference and compared Weinstein to a pedophile.
Conservatives who care about due process should pay careful attention to this prosecution. It’s prosecution by popular demand using legal doctrines that are stretching the concept of a fair trial. After they finish with Harvey Weinstein, who will the mob come for next?
With that said, these are five mostly unreported reasons Weinstein may emerge from the Manhattan courtroom a legally innocent man.
1) Despite reports of 80 victims, Weinstein faces only two criminal accusers.
The media and activist groups cite over 80 women — one report says more than 90 — who have been victims of Weinstein. However, when the case opened in Lower Manhattan, the jury was told they are only to decide on his guilt with two accusers. Now the court has also heard allegations from four other women, but these are just being used to show “previous bad acts” to bolster the case. The jury is not being permitted to pronounce judgment on the actions alleged by these four women.
2) Every allegation contains serious evidential weaknesses, and in some cases defies common sense.
There are serious holes in the accounts of the two women he is accused of assaulting in the criminal case. Jessica Mann claims she was raped but that afterwards she decided to have a relationship with him. After the alleged rape, she wanted him to meet her mother and, in a diary, described him as her casual boyfriend. She says she continued in the relationship because it would be a “benefit” to her. His other accuser Miriam Haley accepted flights, expensive hotel stays and gifts from him after the alleged attack and desperately tried to change a flight so she could meet him in London. She also signed emails to him “Lots of Love Miriam” after he allegedly sexually assaulted her. Both of the accusers maintained loving or business contact with Weinstein after their alleged assaults.
There are similarly large holes in the accusations of the four supporting alleged victims. One had memories of her attack that were so “fragmented” that the prosecution wrote to her lawyer saying there was no way they could pursue the case. However, the case and her memory was strengthened after 55 visits to a trauma/memory expert recommended by the prosecution.
3) The prosecution is relying on a radical new theory to explain why Weinstein’s alleged victims maintained sexual, friendly and business relationships with him after allegedly being attacked.
Enter Dr. Barbara Ziv. Dr. Ziv is a professor at Temple University and now has a career giving evidence at rape trials pushing the new theory that it is normal for women to have relationships with and write lovingly to their attackers often for years after the initial attack. According to Dr Ziv, “It is extremely common. In fact, it is the norm for individuals who have been sexually assaulted, to have subsequent contact with the individual. Now that contact can range from having text messages or e-mail exchanges with them to continuing in a relationship with them, or to developing a relationship with them, even if one did not exist before the sexual assault.” This theory makes it difficult for Weinstein to argue his innocence because apparently friendly contact from the alleged victim is now said to be normal after a rape. But it is probably a very difficult theory for the jury to accept.
4) At times the prosecution appears to be reaching in their attempts to explain why Weinstein’s sexual encounters must be rape.
You could call this the “Is She Really Going Out with Him” theory. No joking, the prosecution has argued on a number of occasions that because Harvey Weinstein is and was physically unattractive and the women were beautiful that this is evidence that the jury should consider in their deliberations. “Jessica gave him her number thinking this was a good networking opportunity. Certainly not thinking anything remotely sexual or romantic, after all the defendant at this point was old enough to be her father, significantly overweight and sloppy looking,” the prosecutor told the jury. This point was made a number of times to the jury, until Donna Rotunno, Weinstein’s defense lawyer, finally exploded and bitterly complained to the judge and asked him to prevent them from pushing this rather bizarre theory.
“So this notion that he doesn’t look right or he is too large or his clothes don’t look right, it is insulting and I think the record needs to be clear about the fact that there is an attempt to continue to berate Mr. Weinstein about who he was as a person, and that’s not what this trial is about,” Rotunno argued.
It is a bizarre prosecution strategy trying to convince the jury that it is ludicrous that young women would not consensually date an unattractive powerful older man — when the opposite is clear to see in the streets of Manhattan every day
5) The prosecution is urging the jury to believe “Her Truth” — the defense asks them to believe “The Truth.”
This trial is a pivotal case. It will set standards going forward. Should we “believe all women” or should we follow all evidence? The prosecution has talked about “Her Truth” — they want the jury and the public to believe what the women say — the defense has countered with asking the jury to believe “The Truth.” The defense has asked the jury to apply their common sense to a series of encounters that appear consensual, while the prosecution are urging them to adopt an apparently new way of looking at sexual assault. Will they succeed?
Ann McElhinney and Phelim McAleer are the creators of the “Gosnell: The Trial of America’s Biggest Serial Killer,” “The Ann & Phelim Scoop,” and “Fracknation.” Their new podcast, “The Harvey Weinstein Trial: Unfiltered,” can be found on Spotify, Apple Podcasts, and more. You can listen to the verbatim reenactment of the Weinstein trial at WeinsteinPodcast.com.