How Multiple Accusers Create “Almost Insurmountable” Cases for Harvey Weinstein and Danny Masterson
Two of the most prominent and closely watched criminal cases of #MeToo are set to go on trial in October. They will begin within one day of each other. Harvey Weinstein , and Danny Masterson are going to be defending multiple women against allegations.
Weinstein is charged with 11 counts of sex crimes, including rape, in connection with the assaults of five women from 2004 to 2013, which cumulatively carry a sentence of up to 140 years. Masterson is charged with three counts of rape between 2001 and 2003, which collectively could mean up to 45 years in prison. Both men have maintained their innocence.
The Hollywood Reporter interviewed legal observers to find out if sexual assault is a distinct area of law. The California evidence code allows jurors to use individual cases to support others and to consider evidence that involves prior bad acts.
A widely used, but not well-known statute will allow juries to examine the cases in all their details rather than individually assessing each charge.
“When there are multiple acts of sexual violence, each act can be used to corroborate other facts,” Halim Dhanidina, a former judge and prosecutor who is now a criminal defense lawyer.
The Judicial Council of California Advisory Committee on Criminal Jury Instructions states that if jurors find that prosecutors have “proved beyond a reasonable suspicion that the defendant committed one (or more) of the crimes”, they may conclude that he “was disposed to commit sexual offenses” which could lead them to conclude that he is guilty of all other charges.
Dhanidina points out that the evidence statute is not being reported enough considering its role in sex crimes against women charged every day in the justice process. “It can take two or three individual weak cases and [really] create an overwhelmingly strong case .”
Prosecutors allege that Masterson engaged in a pattern of behavior. Attorneys say this is a significant factor. Masterson is accused in inviting each woman to his Hollywood Hills home, giving them a drink that made their bodies feel discombobulated, and then dragging them into a Jacuzzi before taking them upstairs for rape. Dhanidina emphasizes the consistency in the accounts. “The evidence is compelling in that the hot tub and drugging were used to incapacitate complaining witnesses.”
Julia Jayne, a criminal defense attorney, notes that “in the absence of physical evidence in cases that are older, it adds weight to the prosecution’s case.” It provides context because the defense will say it was consensual.” (Prior wrong acts, even uncharged, can be brought into trial, even if police decline to press charges. )
One of Masterson’s accusers reported her alleged sexual assault to the police in 2004. Although no charges were brought against Masterson, who did not respond to requests for comment on the matter, prosecutors could file that report. Weinstein will still have to present evidence of “prior poor acts” to prosecutors. Four other women will also testify that Weinstein assaulted their bodies. (L.A. judge Lisa Lench has excluded testimony from Rose McGowan, Daryl Hannah and other actresses. The former because the accounts were older than McGowan’s, while Hannah did not allege assault. )
Weinstein appealed his New York conviction on the basis of prior bad act testimony from three women. However, the appeals court in June ruled that the evidence of the mogul’s alleged uncharged criminal acts was admissible to counter the defense’s argument that Weinstein believed that his accusers consented.
Juda Engelmayer, Weinstein’s representative, said that the extraneous information was harmful to the producer’s image. He tells THR that it’s “patent prejudicial overkill, purely intended to paint the darkest portrait of Harvey to ensure jurors are so horrified they feel they have no other choice.”
Awaiting trial, Weinstein sits in L.A.’s Twin Towers Correctional Facility, where he’s continuing to serve his existing 23-year sentence. (The jury will be allowed to examine his New York conviction in the L.A. trial. The prosecutors will present a consistent narrative, just like Masterson. Weinstein used his Hollywood mogul status as a lure to women with entertainment aspirations to get into hotels where he would assault and corner them.
The attorneys consulted by THR say they expect that state law involving evidence in sexual assault trials to weigh strongly against both men.
Notes Joshua Ritter, a defense attorney and former L.A. prosecutor, “Each allegation from each individual victim might not be all that strong if it was alone, but when you put them all together, it’s almost insurmountable.”
This story first appeared in the Oct. 5, issue of The Hollywood Reporter magazine. Click here to subscribe.