The onetime movie producer and prolific sexual predator Harvey Weinstein’s New York convictions for assaults on two women were overturned last week by the state’s highest court.
As much outrage as this decision has generated, the base and ugly truth is that the underlying concern about violations of legal due process in Weinstein’s case have some merit.
Before we get to that, let’s establish a few things: Weinstein is not exonerated, and in fact will be retried; he is simultaneously convicted of sex crimes in California, and will not be spending a day of this retrial as a free man; without a shadow of a doubt, he is a danger to society and a horrible person who used his position and clout to prey on women in his orbit; and the evidence that the high court took issue with, involving the testimony of three women he also allegedly abused, is sound.
What’s at issue here is something known in New York as the Molineux rule, though some version of it exists throughout state and federal jurisprudence. Very basically, the principle is that you cannot introduce evidence from prior crimes or wrongs that the defendant is not currently charged with, unless it meets certain narrow exceptions like being directly relevant to proving something material about the case.
There’s an obvious reason for this: criminal cases are supposed to be about the facts at hand, establishing whether or not an individual committed the specific crimes so charged. If prosecutors were allowed to freely introduce evidence of prior crimes or even the suggestion of prior crimes, then they could generate enough innuendo to convince a jury that someone had engaged in the conduct at issue, even if the evidence for the particular crime at issue was thin.
This is not “a technicality,” but a fundamental element of due process that, if absent, could hurt ordinary people much more than famous predators with expensive legal teams.
All that said, it is reasonable to consider additional targeted exceptions to Molineux as it relates specifically to sex crimes, which have certain substantive differences to other types of offenses. Key among them is the fact that, unlike every other crimes, it can outwardly appear almost identical to a normal, non-criminal scenario but for the question of consent.
So while there aren’t really situations of consensual robbery or assault, there is plenty of consensual sex, and in many cases the only evidence that a prosecutor can use to parse that from nonconsensual sexual assault is the word of the accuser. Illuminating a pattern of conduct across time can be the only real way to reasonably establish that a defendant is not being truthful.
It was the absence of this allowance that the court used in overturning Weinstein’s conviction. He can and should be convicted again without it.
Going forward, though, Assemblymember Amy Paulin has introduced a bill that would codify in New York the current federal standard, also used in an additional 16 states, which narrowly allows evidence pertaining to previous sexual offenses to be admitted in sex crimes prosecutions. This seems reasonable, just as long as it stays targeted and doesn’t expand to include other types of crimes and other types of evidence.