"Cuddling Harvey Weinstein is the Last Straw - Time's Up - How Women Need to Play Hardball"



Photo of artist Natalie White in front of her artwork 

Blog by Wendy Murphy, Esq with permission - 


When Harvey Weinstein’s rape conviction was overturned last month, women were outraged, not only because a man accused of sexually assaulting nearly 100 women was exonerated, but also because of why the court ruled the way it did.

The court said Weinstein did not get a fair trial because in addition to the three victims whose cases were part of the formal charges, three other women that Weinstein sexually violated were also allowed to testify. This violated Weinstein’s rights, the court said, because instead of focusing on the evidence in the case, it painted Weinstein as a bad man who has a propensity to harm women.

This issue in the law - known as the prior bad acts rule - refers to how courts treat evidence that is relevant, but also prejudicial. For example, if a man is charged with arson of his home, and cops learn during their investigation that the man previously filed a false insurance claim involving a car accident, one could argue that the false insurance claim is fair game to use against him in the arson case because it shows that he had a financial motive to burn the house down. But there’s a difference between a false insurance claim and an arson case, and a jury should not find a person guilty just because they think he’s the type of person who has a propensity to steal things for money. A judge must balance how helpful the evidence is against how harmful it is. To determine helpfulness, the court first looks at what the prosecution must prove to win its case. In the arson example, the prosecution must prove that the man unlawfully set fire to his home. They do not have to prove that he had a specific motive or intent, so his reason for committing the crime isn’t critical to the case, even though it is relevant. Likewise, in Weinstein’s case, the prosecution did not have to prove that the Hollywood mogul had a specific motive or intent when he raped women, so reasonable judges can disagree about whether the prior bad acts evidence should be admitted. The trial judge and the lower appellate court said the evidence was fair game; New York’s highest court disagreed.

There would have been no room for disagreement among the judges, and Weinstein’s convictions would not have been overturned if, in addition to the sexual assault charges, the prosecution had charged Weinstein with a hate crime. Under New York’s hate crime statute, the prosecution would have been required to prove that Weinstein “intentionally select[ed] the person against whom the offense [wa]s committed ... in whole or in substantial part because of a belief or perception regarding the .... gender ... of [that] person” or because the act was “commit[ted]” because of that belief or perception.

With a hate crime charge in place, the trial judge would have been mandated to let the other women testify, because the prosecution was obligated to prove that Weinstein “intentionally selected” women as his victims, and that he was motivated to commit his crimes because of his “belief or perception” regarding women and his sense of entitlement to commit his crimes because his victims were female.

Evidence that Weinstein was guilty of a hate crime was overwhelming and included not only that he targeted women but also that he told his victims they must submit to his sexual demands because “this is how this industry works.” A hate crime charge would have prohibited the appellate court from overturning Weinstein’s convictions because the other women’s testimonies were necessary to prove the basic elements of a hate crime charge. Put another way, evidence cannot be excluded as “too prejudicial” when it goes to the heart of the charge.

The question now is, will Manhattan District Attorney Alvin Bragg add a hate crime charge when he prosecutes Weinstein again? The new trial is scheduled to start in the fall. Between now and then, Bragg owes women answers to questions such as, why wasn’t Weinstein charged with a hate crime the first time? If Weinstein had hurt the same number of Black, Jewish, or Asian people, and told them that he was raping them because “that’s the way the industry works,” he would have been charged with a hate crime. Why would Bragg discriminate against women by not adding a hate crime charge? The hate crime law says that women are entitled to protection against hate crimes. How can women be protected if charges aren’t filed? If Weinstein doesn’t deserve a charge, who does? How many women must one man attack before he deserves a hate crime charge?

Maybe women should just accept that men like Weinstein will never be held accountable. After all, things have been going downhill for women ever since his conviction in 2020. On June 30, 2021, another wealthy entitled serial rapist from Hollywood named Bill Cosby had his conviction overturned just three years after he was found guilty of rape and incarcerated. He and Weinstein together victimized more women than all of Jeffrey Epstein’s henchmen combined, but the legal system imposed punishments that fit the crime of shoplifting.

The Supreme Court then decided Dobbs in 2022, ruling for the first time in history that pregnant women have no constitutional rights whatsoever over their bodies, even if the pregnancy happens during a gang rape by fifteen men, at gunpoint, and the victim’s eyes are gouged out during the crime. Welcome to America.

If the women’s movement can’t get a guy like Weinstein charged with a hate crime, it isn’t a movement at all. While millions of dollars were being spent on Time’s Up and #MeToo, presumably because of Weinstein, not a dime went to the issue of hate cries against women, even though women suffer more hate crimes than all other categories of people combined. Worse, zero money was spent fighting for women’s basic legal equality. It’s as if nobody in the women’s movement understands that women are sexually victimized at very high rates because they do not yet have equal rights under the Constitution. Women have been fighting for the Equal Rights Amendment (ERA) for more than 100 years, we even got it ratified in 2020, but it isn’t in the Constitution yet because the Trump Administration blocked it. We thought putting Biden in the White House would unblock the ERA because Biden said he supported it, but then he blocked

it, too, the same way Trump did. If the money wasted on #MeToo and Times Up had been spent pressuring Trump and Biden to stop blocking the ERA, instead of the nonsense it went to, our Constitution would now include women as equal citizens. In turn, men who target women for violence would routinely be charged with hate crimes because it would be unconstitutional not to charge them.

The ERA would raise the status of women under all laws, overnight, across the board. Women could stop wasting time fighting for meager statutory reforms that are then unequally enforced in the courts. The ERA would require equal treatment of women by all government officials and under all laws.

Until the ERA is in the Constitution, women’s inequality will remain a gushing wound that sucks the lifeblood out of this nation. Until the ERA is in the Constitution we will continue to watch serial rapists stick their middle fingers up to their long lines of victims. Until the ERA is in the Constitution, women will suffer rape, domestic abuse, and femicide at unconscionable rates.

There is hope, however, because Alice Paul’s legacy is alive and well. When she was fighting for the ERA between 1923 and 1977 (the year she died), as founder of the National Woman’s Party, she knew that women had to be fiercely nonpartisan in order to hold both sides accountable. Democrats and Republicans alike resisted Paul’s demands and told her about all the other things they would do for women, but she told them to shut up and listen. She told them what women wanted and warned that if they didn’t accede to women’s demands they would lose elections. She was right, which is exactly why women today are following Alice Paul’s strategy. Democrats keep telling women they should care about and vote about abortion, but women are telling them to shut up and listen. Women are not prioritizing abortion, they want the ERA because it fixes abortion rights, rape laws, equal pay laws, and everything else. Democrats know this, just as they know Biden is still blocking the ERA, and that if he doesn’t unblock it before November, Trump will win.

Women are not interested in party politics. We are laser focused on the space between equality and inequality, because that’s where violence against women happens with impunity under the law. It’s the space where Cosby and Weinstein got their legal entitlement to rape women over and over again, without fear of consequence. It’s the space where all laws fall through the cracks because it allows unequal treatment of women by all officials in all branches of government, state and federal, regardless of what the laws actually say. It’s the space where women are enslaved in second-class citizenship because Biden is blocking the ERA. If he continues, women will vote against him with a vengeance in November. We have the voting power to hurt Biden, and we will, because he’s hurting us - and thanks to Alice Paul, we know how to play hard ball.


Wendy Murphy, Esq Professor at New England School of Law 


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