#MeToo prosecutors deploy experts early to thwart defense

When his trial opens in the coming days, Harvey Weinstein’s defense team is expected to go on the offensive against the women who have accused him of rape and sexual assault, in part by questioning if they acted like victims afterward.

New York City prosecutors intend to counter with a strategy that’s taken hold since the 2018 retrial of comedian Bill Cosby: calling a sex crimes expert as a witness to dispel assumptions about how rape and sexual assault victims behave after an attack.

In fact, Weinstein’s prosecutors are using the very same expert, Dr. Barbara Ziv. She was the first prosecution witness at Cosby’s retrial and is expected to testify early in Weinstein’s trial this month.

Ziv, a forensic psychiatrist who has spent decades working with sex offenders and victims, is likely to be an important potential bulwark against Weinstein’s defense that he had consensual relationships with the two women at the center of the case.

One of the women, who accuses Weinstein of raping her in a Manhattan hotel room in 2013, sent him warm emails in the months after the alleged assault.

“Miss you big guy,” said one note.

“There is no one else I would enjoy catching up with that understands me quite like you,” said another.

There was similar evidence at Cosby’s trial that he had remained in contact with some of his victims. Ziv testified that victims frequently avoid or delay reporting assaults to police, often keep in contact with the perpetrator, remember more details over time and differ in their emotional responses.

Cosby’s jury ultimately returned a guilty verdict in the first big celebrity trial of the #MeToo era.

Prosecutors are now rethinking how they try sexual assault cases, especially those involving intimate partners, mentors, work friends and other potentially fraught relationships.

Through experts like Ziv, they can immediately focus the jury’s attention on victim behavior and frame the way jurors hear later testimony. That approach can help prosecutors bust myths and preemptively weaken defense strategies.

“I think that makes sense. It’s basically a quick education for the jury, and it’s true the jury starts to see things through that lens,” said Laurie Levenson, a criminal law professor at Loyola Law School in Los Angeles.

In addition to the alleged rape, Weinstein, 67, is charged with sexually assaulting another woman, Mimi Haleyi, in 2006. If convicted, he could be sentenced to life in prison.

Opening statements are expected as soon as this week, following two weeks of jury selection.

Weinstein’s lead lawyer, former Chicago prosecutor Donna Rotunno, said in a pretrial interview with Vanity Fair that while some women might have regretted having sex with the former producer, “regret sex is not rape.”

She said the email correspondence between Weinstein and both women is evidence that, at the time, neither considered what happened to be a crime.

“I think a woman who is a victim of rape is going to look at that and say, ‘That’s not what rape victims do.’ If you were really raped, this is not what you do,” she said.

Defense attorney Kathleen Bliss took similar aim at Cosby’s accusers in scorching closing arguments in April 2018.

She called trial accuser Andrea Constand “a con artist” and witness Janice Dickerson, one of five other accusers to testify for the prosecution, “a failed starlet” and “aged-out model” who had seemingly “slept with every man on the planet.”

Given the cultural moment, some defense lawyers question that strategy. The goal, they say, should be to discredit accusers without eviscerating them. Eviscerating them could turn off a jury.

In Weinstein’s case, the task is all the more daunting. News reports about his alleged predation of scores of women — from highprofile actresses to production assistants — launched the #MeToo movement in late 2017.

“Of course, a lawyer has to go in there and attack credibility and attack inconsistencies. It’s just how you do it,” said defense lawyer Brian McMonagle, who won a mistrial in the first Cosby trial when the jury deadlocked. “There’s a way to do it without being despicable.”