#MeToo prosecutors deploying 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.

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.

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 such as Ziv, they can immediately focus the jury’s attention on victim behavior and frame the way jurors hear later testimony.

“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.

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.”