The Weinstein Defense - ‘Harvey Did Not Invent The Casting Couch’

Harvey Weinstein arrives at the first precinct while turning himself to authorities following allegations of sexual misconduct, Friday, May 25, 2018, in New York (AP Photo/Julio Cortez)

Today a bedraggled, rather pathetic-looking Harvey Weinstein turned himself in to authorities in New York City to face multiple charges. Leveled against the former Hollywood titan were charges of first degree and third degree rape, as well as a criminal sex act in the first degree regarding forced behavior upon two women. For some – like Tara Burke, founder of the #MeToo movement – it was a a day of justice and relief. For others the question was, “What took so long?”


It was back in October of 2017 when Weinstein’s decades of sexual predatory behavior came to light. Despite the fact that many in the industry claimed his exploited actions were an “open secret,” it took intrepid reporters at the New York Times and Ronan Farrow’s months-long work being printed in New York Magazine to deliver the goods. (A story originally turned down by NBC News, remember.) This opened up floodgates, as more women came forward with their tales of abuse at the hands of Weinstein, as well as numerous others across varying industries.

It was that volume of testimonials that contributed to the time spent coming to this point. The movie mogul also has criminal charges facing him in Los Angeles and London. During that time authorities have been combing through a growing list of complaints that have been compiled against the studio head. Also, as Joe Cunningham noted, there is a curious timeline in which the Weinstein arrest occurs very quickly after the disgraced New York Attorney General Eric Schneiderman was charged with his own rash of sexual assaults.

Weinstein’s attorney Ben Brafman offered up what is a wan, if not comical, defense. After some rote denials (“he has never engaged in non-consensual sexual behavior”) there was this curious dodging of responsibility:

Mr. Weinstein did not invent the casting couch in Hollywood, and to the extent that there is bad behavior in that industry, that is not what this is about….Bad behavior is not on trial in this case.”


Somehow criminal charges are brought up that do NOT involve bad behavior? That is a curious interpretation, which is also unnecessarily mild in my interpretation. And as for the claim Harvey is somehow exempt here because he did not originate the casting couch: he is not being charged with its creation, but instead for using it excessively. He may not have invented the proverbial piece of furniture, but it was certainly befouled with him staining that surface, as it were.

This position actually hearkens back to the original defense from last October. At that time Weinstein’s counsel stated that he was only engaging in behavior that had been influenced by a far more permissive society in the 1960s. That kind of behavior was more permissive, so he did not know any better…we suppose? Ah, so your client is exonerated as an unevolved dinosaur?

The truth is these defenses are going to be made — that is the job of his representation. They will need to cast as much doubt as possible on behalf of their client. But the sheer scope, breadth, and length of Harvey’s transgressions means that these requisite defenses will only appear more ridiculous. However, whatever mockable component there is now is certain to become darker.

The next phase of defense will involve the discrediting of the victims. That will, of course, be when things turn ugly. Promises Brafman:


I anticipate the women who made these allegations when subjected to cross-examination, in the event that we even get that far, that the charges will not be believed.”

Weinstein has entered his plea as Not Guilty, which carries the promise of a lengthy fight that is sure to get ugly in regards to the women he has tormented. The charges carry both seriousness and strength in evidence, based on the fact that the only reason Weinstein left the courthouse with a house-arrest ankle tracker was that he posted a hefty $1 million bond.


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