The trial of Harvey Weinstein has provided ample evidence that he is a grotesque pig lacking empathy for the many women he preyed upon, but probably not enough to prove he should be convicted as a rapist.
Prepare for an acquittal or a deadlock after the jury goes out Tuesday, because anyone who has sat through the trial can see the prosecution has struggled to prove its case.
If Weinstein does walk, it will be a tragedy for his accusers, who at the very least were degraded by their association with him and have suffered brutal courtroom cross-examination.
But it will be a well-overdue check on the power of the #MeToo movement that was spawned by the Weinstein case, and which depends on his guilt.
What started as a reasonable comeuppance for a powerful movie producer who preyed on aspiring actresses went too far when it mutated into a toxic feminist movement designed to demonize all men.
#MeToo has become a tyranny of its own, a crusade to overturn a mythical patriarchy in which women have no agency or power.
Of course, it’s easy to condemn Weinstein, with his grotesque physical appearance, brutish behavior and self-pity.
But “in a criminal trial, proof matters,” Weinstein’s defense lawyer, Donna Rotunno, told the jury. “This is not a popularity contest. But you have to remember that we are not here to criminalize morality.”
Rotunno has been branded a “traitor to her sex” and a “woman of escalating infamy” for defending Weinstein, after less lion-hearted lawyers dropped out, but she has appealed to the “New York City common sense” of the jury.
At least 80 women have accused Weinstein of sexual predation, but, in the end, this jury was told to consider the cases of only two.
Jessica Mann, now 34, an aspiring actress from a dairy farm in Washington state, met Weinstein at a Hollywood party when she was 25 and testified that he raped her in 2013at a hotel in Manhattan.
Yet she continued a relationship with him for several years afterward, during which time she had consensual sex with him, attended Oscar parties as his guest and sent hundreds of affectionate messages, some of which Rotunno read aloud to the court.
In the weeks after the alleged rape, Mann e-mailed Weinstein to thank him for arranging an audition for a vampire movie: “I appreciate all you do for me, it shows.”
“Miss you big guy,” she wrote six months later.
She asked him to meet her mother in another e-mail: “You can see how good my genes are.”
And four years later, she wrote, “I love you, I always do. But I hate feeling like a booty call. ;)”
Rotunno read out another message in which Mann wrote she was “blowing a super-rich Hollywood producer.”
“This is not the way you would characterize your relationship with your rapist,” said Rotunno.
“She made a choice that she wanted the life that he could potentially provide for her.”
The other accuser before the jury, production assistant Miriam “Mimi” Haleyi, now 42, also continued a consensual relationship with Weinstein after he allegedly forced oral sex on her in 2006.
According to evidence presented by Rotunna, Haleyi went on to accept hotel stays, limo rides and flights to Los Angeles and London, and sent Weinstein affectionate messages, including one signed, “lots of love.”
It is hard not to feel sympathy for these women, whose vulnerabilities were exploited by Weinstein.
But that is different from a criminal conviction for rape.
The prosecution case raises the frightening prospect that any man could be found guilty for retrospective rape, years later, over a consensual sexual encounter.
It relies on the “Believe all women” slogan at the center of #MeToo, which only disrupts healthy heterosexual interactions and places every man under suspicion of rape.
As Rotunno told Vanity Fair, “Regret sex is not rape.”
Summing up the defense Thursday, she described the prosecution’s case as an alternate universe in which “women are not responsible for the parties they attend, the men they flirt with, the hotel room invitations, the plane tickets they expect, the jobs they hope to obtain.”
It is no favor to women to pretend they are not responsible for their own choices, including entering into a sexual relationship with a powerful older man who can do them favors in a competitive industry.
To equate those choices with rape is an obscene disservice to genuine victims.
But the pendulum has swung so far toward “believe all women” that it will require courage for those seven men and five women on the jury to come to an unpopular verdict, which will be seen as a referendum on the #MeToo movement.
Don’t expect the activists who banged on pots and screamed “the rapist is you” outside the lower Manhattan courtroom to accept anything but a conviction.
But even if Weinstein does walk free in New York, he has not escaped punishment.
He faces another trial in Los Angeles — and his reputation and once-mighty career are already in ruins.
Shoddy reporting at trial
Pulitzer Prizes are among the rewards for journalists who exposed Harvey Weinstein’s predatory ways.
But evidence in the trial indicates much of the reporting was one-sided.
“Courtrooms are where slogans go to die,” says Irish journalist Phelim McAleer. With wife Ann McElhinney, he has been in court every day to produce their riveting podcast: “The Harvey Weinstein Trial: Unfiltered.”
“A lot of bad journalism has been exposed in this case because the jury has heard how the accusers neglected to share, but were also never asked about very significant information that would have cast their interactions with Weinstein in a different light,” he said.
Monday, cognitive psychologist Elizabeth Loftus, who told jurors that human memory easily can be distorted and contaminated, will tell the podcast that she was dropped as a “distinguished lecturer” by New York University after her association with Weinstein’s defense became public.The podcast, which features actors reading verbatim from court transcripts, also addresses the pressure placed by liberal activists on the justice system.
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