WHEN PIGS FLY
Swine-stein’s casting couch defense won’t sway jurors, legal experts say
ACCUSED RAPIST Harvey Weinstein’s proposed “casting couch” defense seems unlikely to sit well with prospective jurors — especially women — in a post-#MeToo courtroom.
Defense attorneys were dubious about Weinstein lawyer Benjamin Brafman’s invocation of the old Hollywood trope of actresses trading sex for stardom after his client was sprung Friday on $1 million bail. “It sounds like a bit of a throwback to the late ’50s or the ‘Mad Men’ era,” said veteran lawyer Ron Kuby. “Whether it’s a viable defense in 2018 is really up to the jury.
“But it could have been a viable defense — a generation ago.”
Weinstein, 66, remained out of the public eye Saturday, one day after he was charged with two counts of rape and one count of committing a criminal sex act.
The disgraced movie mogul did not show his face on the streets of Tribeca, where he is a longtime resident of Greenwich St.
Weinstein couldn’t go far anyhow — he was forced to surrender his passport and ordered to stay in New York state or Connecticut. The two-time Oscar winner was also wearing a monitoring ankle bracelet.
After Weinstein was arrested, handcuffed and arraigned Friday, Brafman declared his client was innocent, and suggested the pervy producer’s accusers willingly traded sex for career advancement.
“Mr. Weinstein did not invent the casting couch,” said Brafman. “Bad behavior is not on trial here. It’s only if you intentionally committed a criminal act, and Mr. Weinstein vigorously denies that.”
Defense attorney Edward Hayes said that defense would definitely strike a sour note with potential female jurors.
“The casting couch is not consensual — if you wanted a job, you had to have sex,” said Hayes. “Not consensual. That’s not a defense.”
The defense tactics are a highstakes, high-risk decision, as Weinstein faces up to 25 years in prison if convicted of the most serious count. At his age, that’s a potential life sentence.
Hayes suggested prosecutors
could try to call previous accusers to testify about similar sexual assaults by Weinstein, as happened in this year’s successful Pennsylvania prosecution of Bill Cosby.
Their stories would also resonate with female jurors, said Hayes.
“Many women have had an incident where a man says he will do something for you, but he wants something sexual,” said Hayes. “Some of these women (accusing Weinstein) had their careers ruined for saying no.”
Oscar-winner Mira Sorvino and actress Rosanna Arquette charged that Weinstein torpedoed their promising careers after they rejected his unwanted sexual overtures.
“Sending love to all my sisters today who stood up against a monster,” Sorvino tweeted after Weinstein’s arrest. “I am proud and grateful to you all.”
Upward of 80 women leveled charges of inappropriate sexual behavior by Weinstein, who continues to insist his contact with the women was consensual.
Former Manhattan prosecutor-turned-defense lawyer Mark Bederow suggested Brafman hoped to use the allegations against Weinstein to bolster his arguments for acquittal.
“They are trying to turn Weinstein’s sleazy reputation to their advantage, because it’s critical to his ‘casting couch’ defense,” said Bederow.
“They hope to convince a jury that Weinstein’s exploitation of his power as a Hollywood mogul supports his claim that the women engaged in consensual sexual activity with him.” The downside? Bederow said that defense would likely mean putting Weinstein on the witness stand — “a potential disaster.” But desperate times call for desperate measures.
“This is not about salvaging Harvey Weinstein’s reputation or career, both of which have been destroyed beyond repair,” said Bederow. “This is about trying to keep a 66-year-old man from spending the rest of his life in prison.”
The accusations against Weinstein date back as far as 1980, although the New York charges involve two women who allege they were attacked in 2004 and 2013.
One-time actress Lucia Evans charged that Weinstein forced her into performing oral sex on him during a meeting in his Tribeca office in the earlier attack.
The second victim, who was not publicly identified, charged that she was raped by Weinstein in a Midtown hotel room in March 2013.
Kuby, while skeptical of Brafman’s approach, said the defense lawyer had to say something to the media horde outside the Manhattan Criminal Court hearing.
“When defending a client, no matter how guilty he may appear, one rule is you have to say something,” said Kuby. “You can’t just shrug your shoulders. And here, the argument is consent.”
Weinstein, regardless of the outcome of his Manhattan case, still faces criminal investigations in London and Los Angeles.
The casting couch is not consensusal — if you wanted a job, you had to have sex. Not consensual. That’s not a defense. Not a defense. Edward Hayes, lawyer