The Manhattan district attorney’s office made an unusually risky decision when it brought criminal charges against Harvey Weinstein. The two women at the center of the case not only had friendly communications with the Hollywood producer after their alleged attacks, but also agreed to have sex with him.
Rape experts say victims sometimes remain on outwardly good terms with their assailants and even have sexual encounters with them after assaults. But it is rare to prosecute such cases, according to police officials, defense lawyers and victim advocates across the country. The longstanding assumption is that jurors will find the accusers less than credible or the dynamics too complicated for a conviction.
Trying those cases is “practically unheard of,” said Kaethe Morris Hoffer, executive director of the Chicago Alliance Against Sexual Exploitation, who after working with victims for three decades could recall only a single prosecution under these circumstances — one that ended in acquittal.
“Sexual contact afterward is very problematic unless it really can be thoroughly explained and understood,” said Roger Canaff, a former prosecutor in New York.
The prosecution rested its case on Thursday, leaving the defense to call the last few witnesses in the days ahead. Over the past three weeks, the two sides have built competing narratives to answer a critical question: Why did Miriam Haley and Jessica Mann, the two central accusers, agree to have sex and other contact with Mr. Weinstein?
Prosecutors say that keeping victims close was a key part of Mr. Weinstein’s predation. They argue he was so powerful, manipulative and menacing that the women, seeking a break in the entertainment industry, felt compelled to go along.
When Ms. Haley had sex with Mr. Weinstein two weeks after he allegedly assaulted her in 2006 — and signed one of her emails to him “Lots of love” — she was trying to make what happened “not so disgusting” and “almost normalize the situation,” Meghan Hast, a prosecutor, told the jury.
Ms. Mann, who acknowledged having a three-year “relationship” with Mr. Weinstein that alternated between consensual and nonconsensual sex, said he was a “pseudo-father” who could “lift you up,” but also a man who constantly negotiated for sex and demanded obedience, making the aspiring actress fear physical or professional harm. “Maybe I can just grin and bear it,” Ms. Hast said of Ms. Mann’s frame of mind.
The defense has argued that every aspect of those relationships was consensual, and that they are now being “relabeled” and “reimagined.”
“You don’t tell him you love him in 2016 and you are tired of being a booty call in 2017 and call him a predator in 2020,” said Damon Cheronis, a lawyer for Mr. Weinstein, referring to messages that Ms. Mann sent to the producer after her alleged 2013 rape.
Mr. Weinstein, 67, is the real victim, his lawyers say, insisting that his accusers used him to try to advance their careers. The lawyers have been especially aggressive in their cross-examination of Ms. Mann, who broke down in sobs at the witness stand on Monday and, after court was adjourned, could be heard screaming behind a closed door.
“It’s a credibility contest,” said Aya Gruber, a former defense lawyer who teaches at the University of Colorado. “The loving post-event behavior becomes a question of, do you believe her?”
The Weinstein trial was expected to be consequential, but the testimony and details that have emerged in the packed courtroom have added layers of controversy. Allegations against the producer, first reported by The New York Times in 2017, helped ignite the #MeToo movement, and he has now been accused by more than 90 women of sexual harassment or sexual misconduct. But his trial hinges on the complex stories of Ms. Haley and Ms. Mann, and how the jury interprets their tales of acquiescence and violation. As the twelve jurors begin to debate, starting in the next week or so, they will be in largely uncharted legal territory, making a decision that could inform future sex crimes prosecutions.
Victim advocates and researchers see a chasm between how these situations play out in real life and how they have been viewed in the criminal justice system.
“It’s not uncommon to see sexual assault happen in the context of ongoing relationships, whether it’s colleagues, dating or friends,” said Katie Edwards, an associate professor at the University of Nebraska-Lincoln who has studied young women who remain in relationships with men who sexually assault them.
Some victims are reluctant to believe that someone they trusted could violate them, advocates and researchers say. Others seek ways to regain power and control. If they are both part of the same peer group, the victim can be reluctant to do anything that could turn the group against her. With domestic violence, it can be especially difficult to leave.
But even as rape law has evolved over the years — defense lawyers, for example, are largely restricted from using victims’ sexual behavior with others to try to discredit them — many prosecutors believe that friendly contact after an alleged attack, especially sex, will prevent charges from sticking.
To prevail, prosecutors and victims must disclose the extent of the contact and provide a coherent, persuasive explanation, legal experts said. “It’s important for the prosecutor to give the jury a framework for understanding things that can be hard to understand,” said Jane Manning, a former Queens prosecutor and director of the Women’s Equal Justice Project. “Why would a rape victim ever talk to the rapist again? Why would a victim consent to intimate contact with the rapist?”
In 2006 and 2007, Philadelphia juries acquitted Jeffrey Marsalis, accused of drugging and raping 10 women, after hearing that many had contact with him afterward and a few even dated him (he was convicted of two less serious sexual assault charges). It was only when he was tried a third time in 2009 — for drugging and assaulting an Idaho woman who went straight to the police — that he was convicted of rape.
A decade later, the 2016 sexual assault trial in Toronto of Jian Ghomeshi, a Canadian radio host, ended in acquittal, in part because some accusers were not forthcoming about the degree of contact — including sexual relations, in one case — they had with him afterward.
As Ms. Haley and Ms. Mann have tried to explain their decisions, the defense has pushed back at every turn.
Ms. Haley, 42, who was an assistant on a TV show produced by Mr. Weinstein, said that two weeks after he allegedly performed forced oral sex on her, she agreed to meet him in a hotel room because she was “kind of trying to regain some sort of power or something.” She said that after she reluctantly had sex with him, she sent him emails, took a work meeting and approached him at film events because she “just put it away in a box and pretended like it didn’t happen.”
But Mr. Cheronis cast the sex in the hotel as something Ms. Haley liked, pointing out that over the next three days she drew hearts in her calendar.
“You said you draw hearts to sort of reflect your mood. Is that reflective of your mood on July the 27th, 28th and 29th?”
“It may have been,” Ms. Haley said.
The courtroom exchanges have been even more charged with Ms. Mann, who said that after an initial sexual assault by Mr. Weinstein in Los Angeles, she “entered into what I thought was going to be a real relationship with him,” but it was one that “was extremely degrading from that point on.”
Ms. Mann, 34, who grew up in a trailer in rural Washington State and described herself as a victim of a previous sexual assault, has said there were many layers to her relationship with Mr. Weinstein, claiming that he manipulated her into sex by exerting control over her career and insinuating he could hurt her father.
But Donna Rotunno, Mr. Weinstein’s lead defense lawyer, has sought to flip the allegations, claiming it was Ms. Mann who was manipulating Mr. Weinstein by engaging in sex with him, pretending to like him and sending him affectionate emails for years.
“And every time you went to see him and you engaged in sexual behavior with him that was consensual, you made him think you wanted it?” Ms. Rotunno later asked.
“After a long negotiation at times, then yes, I would put on the face and do what I said earlier, which is like role playing,” Ms. Mann said.
To bolster its case, the prosecution called on Dr. Barbara Ziv, a forensic psychiatrist who has evaluated thousands of sexual assault victims and perpetrators, to explain to the jury that some victims pretend the assault never happened and continue to have a relationship with their attacker.
Prosecutors also called on four other women with allegations of sexual assault against Mr. Weinstein, ones that could never result in charges because they took place too long ago or outside New York. These victim witnesses described a pattern that was similar to that told by Ms. Haley and Ms. Mann.
But because the four other women say they never had consensual sex with Mr. Weinstein, their testimony could cut both ways, either supporting prosecutors’ arguments that Mr. Weinstein is a rapist, or serving as a contrast to Ms. Haley and Ms. Mann, possibly undermining their credibility in the eyes of the jury.
Mr. Weinstein has issued sweeping denials of all allegations of nonconsensual sex. His lawyers are not putting him on the stand, so he will not face the type of cross-examinations the women have undergone.
But in the past, Mr. Weinstein has privately apologized for his behavior, according to former employees, witnesses and previously undisclosed records.
In 1990, after a young assistant at Miramax accused him of sexual assault, Mr. Weinstein acknowledged to John Schmidt, the company’s chief financial officer, that he had done “something terrible,” saying, “I don’t know what got into me. It won’t happen again,” Mr. Schmidt said. Mr. Weinstein has denied the exchange.
In 1998, the producer flew to London to pay settlements to two former Miramax assistants, Rowena Chiu and Zelda Perkins, to quiet allegations that he had assaulted Ms. Chiu. Mr. Weinstein agreed to therapy, a new company harassment policy and penalties for subsequent settlements for sexual misconduct.
As they gathered to sign the documents, Mr. Weinstein expressed remorse to the two women, according to notes taken by their lawyer and recently shared with The Times. “I truly apologize for the pain I’ve caused you,” he began, and then said: “Things confusing for me too. You may not believe that. Sometimes don’t know when it’s consensual. Trying to learn. Maybe I don’t recognize my power in these situations.”
“It’s good it happened because I’m happy to be aware of what I did,” he added, according to the newly revealed notes.
Mr. Weinstein, through his legal team, denied ever speaking those words, but Ms. Chiu and Ms. Perkins said they remembered the moment clearly.
“Harvey said 22 years ago he did not know when things were consensual,” Ms. Perkins said.
“We looked at each other and said, ‘Did you hear what he said?’” Ms. Chiu recalled. (Later, Ms. Chiu returned to Miramax, but she was based in Asia and did not see Mr. Weinstein.)
At the 1998 meeting, Mr. Weinstein’s team insisted on collecting the notes. So at Ms. Perkins’s request, her lawyer secretly phoned her secretary, read her Mr. Weinstein’s statement and asked her to make a record of it. Over the years, Ms. Chiu and Ms. Perkins feared it was lost, but recently, British regulators investigating the matter obtained the record from Simons Muirhead & Burton, the firm that represented the women.
If Mr. Weinstein is acquitted in New York, he will still face charges in Los Angeles, where prosecutors have accused him of raping one woman in February 2013, and assaulting another the next night.
The woman accusing him of rape, an Italian model whose name has not been disclosed, had no relationship with Mr. Weinstein before or after, according to her lawyer, Dave Ring.
“That’s the major difference between the New York and L.A. cases,” he said. “She had zero, zero, interactions with him after that.”
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