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The Challenges Of Prosecuting The Case Against Harvey Weinstein


As we move on to our next story, a note to our listeners - this conversation is going to be about sexual assault, and it might be disturbing for some of you. More than 90 women have accused Hollywood producer Harvey Weinstein of sexual misconduct, and the case jurors in Manhattan will deliberate this week concerns the experiences of two of those women. They both accused Weinstein of sexual assault, and they both kept in contact with him, even had consensual sex with him after the alleged attacks.

Now, to understand how risky this case is for prosecutors, we're joined by Aya Gruber. She's a former defense attorney. She teaches at the University of Colorado.

Welcome to the program.

AYA GRUBER: Thank you. I'm happy to be here.

CORNISH: So we want to make clear we're not saying it's unusual for this to happen to victims, but it's not so common for these cases to make it to court - right? - where accusers have continued relations with the suspect after the alleged attacks.

GRUBER: Yes, absolutely. I think depending on the nature of the relationship between the two parties that prosecutors would be reluctant to bring a case where there's significant amounts of romantic contact after the alleged rape.

CORNISH: You said romantic contact. How do prosecutors look at this? How do they figure out whether or not the contact that happens after is going to be a problem for trying to prosecute the case?

GRUBER: Well, I think you have to look at the entire context. So for example, if you have two people who work together and there's an alleged sexual assault, it makes sense that they're going to have contact at work - or if you have a situation where a couple is already involved - they're already in a romantic relationship - you could have a sexual assault, and the relationship could continue.

What's a little more unusual is when the first contact is a sexual assault, and then thereafter, a relationship builds - a sexual and romantic relationship. That, just as a matter of common sense to a lot of jurors, is going to require some more explanation.

CORNISH: Can you talk about how this prosecutor has approached this case, then?

GRUBER: What the prosecutor is going to try to do is contextualize the post-rape relationship, saying, OK, this was a man in a position of power. These were two women who wanted to break into this industry and had to stay on his good side. Also, they brought in a victim expert who could explain that sometimes, when a sexual assault occurs and you have the assaulter in your life, you try to move on by making sense of the sexual assault by saying, OK, maybe this really wasn't an assault. It was consensual. You know, maybe everything is OK here.

CORNISH: I want to talk about Harvey Weinstein's lawyer Donna Rotunno. She said this to "Nightline" in December.


DONNA ROTUNNO: What happens in these circumstances where women don't want to take certain responsibilities for their actions - we infantilize ourselves. You have to know that when you make certain choices, there's a risk when you make those choices.

CORNISH: It seems like she's making an argument that having a continued relationship with the suspect is a choice that people also have to deal with the consequences of.

GRUBER: Well, I think that's right. And it might be a choice that we wouldn't agree with, but that's the wrong question. The question is, what does this post-event behavior say about the credibility of the complainant? So I think the defense implication is, if you have this kind of relationship, it must not have been rape because what are the chances that a woman would be forcibly, violently raped and then send loving texts, keep giving the rapist their telephone number and have a sexual relationship with them? That's the argument.

CORNISH: How high are the stakes for sex crimes victims more broadly? I mean, could the outcome of this case, which is so high-profile, set a kind of precedent going forward?

GRUBER: I think so. I think that already, people who have been subject to sexual violence are extremely reluctant to get involved in the system, for good and bad reasons. It is a hard thing to go through a criminal trial. Finding out that Harvey Weinstein, with all the evidence against him and all the media, was acquitted is probably going to be something that victims take into account before they come forward.

But I would counsel that these are unusual circumstances. Harvey Weinstein is an unusual defendant. And even if Harvey Weinstein wins - which I think is unlikely - but even if he does, I would counsel that victims should understand that this kind of trial is unusual and not necessarily representative of the vast majority of sexual assault cases that go through the criminal system.

CORNISH: That's Aya Gruber, former defense attorney - teaches now at the University of Colorado. Thank you for explaining it to us.

GRUBER: Thank you. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

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