Editor's note: Deborah Turkheimer is a professor of law at Northwestern University Pritzker School of Law and author of Credible: Why We Doubt Accusers and Protect Abusers. Her views expressed in this comment are her own. Read more opinion on CNN.
CNN —
When a Manhattan jury convicted movie mogul Harvey Weinstein of sex crimes in 2020, the verdict seemed to usher in a new era of accountability. The #MeToo movement was in full swing, and even the most powerful men were being prosecuted for types of abuse that had long gone unpunished.
Eileen Moloney
Deborah Turkheimer
Last week, the New York Court of Appeals ruled 4-3 to overturn Weinstein's conviction, ending this new era with a surprising ending for many.
The revocation was primarily due to the trial judge's decision to admit testimony from several women who were not victims of the crimes they were accused of and whose allegations were not prosecuted by the Manhattan District Attorney because they violated statutory law. due to the decision of There is a restriction or it occurred elsewhere. After hearing from these women and their primary accusers, the jury convicted Weinstein of sexual battery and rape. He was serving a 23-year sentence when his conviction was overturned.
I'm not shocked by this turnaround, and I don't see it as the end of sex crime prosecutions. I am a professor of evidence and criminal law and a former prosecutor. So I think most states, including New York, require jurors to have access to information about a defendant's past “bad behavior,” including witnesses testifying about similar alleged sexual misconduct, as in the Weinstein case. It is taught that there is a law that restricts
There are exceptions to this rule, which explains how prosecutors were successful in persuading trial judges to allow additional women to testify, and why only one of the seven New York Supreme Court justices The question is whether the three people affirmed Weinstein's conviction. In cases of gender-based violence, the question of whether a defendant's history of misconduct is admissible is often a sensitive issue.
Additional victim testimony can be important, especially in cases like this. In my book, Credible: Why We Suspect Accusers and Protect Abusers, I detail the widespread “credibility discount” and explain why the accuser's account alone is unlikely to be believed. doing. Victims of sexual assault routinely choose not to report it to law enforcement officials in anticipation of diminished credibility, so most allegations are never reported to police, much less to prosecutors. Not at all. As a practical matter, prosecutors know that the already high burden of proof beyond a reasonable doubt becomes even heavier in sex crime cases.
This extra burden is nothing new. For most of this country's history, a special kind of skepticism was certainly the official rule. In sexual assault cases, the victim's testimony alone cannot prove guilt. In other words, without further corroboration, the witness who detailed her rape would likely have her claim dismissed before it was heard by a jury.
As one court wrote in 1939, when New York state first enacted corroboration requirements, it was to protect rape defendants from “untrue, fraudulent, or malicious” accusers. Other states have also widely adopted this approach.
Seth Wenig/AP
Harvey Weinstein arrived at a Manhattan courthouse in February 2020 for jury deliberations. The New York Supreme Court last week overturned Weinstein's sex crime conviction.
In 1962, a formal attitude of disbelief was enshrined in the Model Penal Code, with its own substantiation requirement being “an attempt to distort the resolution of the dispute in favor of the defendant.” (The Model Criminal Code is published by the American Law Institute, an influential academic group of scholars, judges, and lawyers.) (The latest version will be published later.)
Today, as a result of the efforts of feminist law reformers, corroboration requirements are no longer formalized in law. But there is still often trust in those who come forward, both inside and outside the criminal justice system.
This reality may help explain the trajectory of the Weinstein case. When a woman first reported that Weinstein sexually assaulted her in 2015, her case went nowhere. When dozens of women eventually came forward, Weinstein became a stand-in for #MeToo abusers and was prosecuted.
The February 2020 trial was unprecedented. Despite Mr. Weinstein's power and fame, the case is one in which prosecutors were able to keep the case open even in the face of so-called “bad facts,” facts that, even if commonplace, tend to arouse doubts in jurors. He demonstrated an unprecedented stance of moving forward. Prosecutors were unable to point to any physical injuries or the presence of a weapon. The accusers delayed reporting and continued to communicate with Mr. Weinstein, some with intimate relationships, after the assault. And their accounts changed over time.
All of this predictably provoked the familiar credibility attacks on the accusers, as well as countervailing impulses on the part of the prosecution. Of course, the prosecution wanted the jury to hear from not only the main accuser in the case, but also the other accusers. Quite apart from discussions of technical evidence, the effort to introduce additional women's testimony was essentially an attempt to compensate for the credibility discount. But Thursday's appeals court ruling that Mr. Weinstein did not receive a fair trial makes it clear that no matter how justified, this workaround cannot pass legal muster.
For survivors who continue to face high barriers to faith, the system may feel doomed to fail to deliver justice. But there are reasons to believe in the promise of accountability. As our collective understanding of sexual misconduct evolves, so too does our ability to fairly judge the credibility of accusers. Although progress is halting and painfully slow, trials like Weinstein's help shatter the myth of the perfect victim.
Another key innovation is the use of sex crimes experts to educate juries and, in high-profile cases, the public. One such expert, forensic psychiatrist Barbara Ziv, appeared at Weinstein's trial and testified about behaviors common to sexual assault victims. Ziv told jurors that despite considerable variation, most victims do not physically resist, many maintain contact with their abusers, and many do not report them to law enforcement. He explained that he was often delayed and his memory was often incomplete. “People come to evaluate sexual assault with preconceived notions that are usually wrong,” Ziv testified.
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In the post-#MeToo era of sex crime prosecutions, I have argued that sex crime experts are needed, even if it partially corrects the decline in credibility.
The unreliability of the numbers goes far beyond Weinstein's unexplained beliefs. (Apart from facing a possible retrial in New York, Mr. Weinstein is expected to appeal his California conviction on similar grounds, but that state's rules of evidence prevent him from making his case.) ) Regardless of Mr. Weinstein's fate, demanding the appearance of multiple accusers moving forward before being believed is not the solution.
The problem is impunity for sexual abuse. Its roots lie in our cultural predisposition to doubt our accusers.
