Harvey Weinstein is due back in court on Wednesday. What is needed: Modernized jurisprudence for cases of sexual violence.

It needs a new look. Weinstein looks at Jessica Mann as she makes a statement following the verdict, New York 2020 Photo: Jane Rosenberg/REUTERS

23 in New York, 16 in Los Angeles. The respective courts had convicted Harvey Weinstein of sexual crimes for so many years. But the 23 years have already passed. It was a single vote that ensured that the 2020 New York ruling was overturned last Friday.

Many consider this a step back for #MeToo, as his criminal trial sparked the movement. But that is not all. Rather, the decision shows that, in the midst of so much social progress, we forget to ensure that the justice system also does the same.

By a ratio of 4 to 3, the appeals court judges, mostly women, decided that the original verdict was illegal. At trial, witnesses (for example, actress Lauren Young, actress and producer Dawn Dunning, and model Tarale Wolff) were heard about their experiences of abuse, even though these women were not actually part of the prosecution.

However, the accused can only be judged based on the acts of which they are accused, which in the Weinstein case consisted of the accusations of two other women: production assistant Mimi Haleyi is said to have forced Weinstein to performed oral sex in 2006 and that he raped her. current hairstylist Jessica Mann in 2013.

Manipulation patterns

The women's additional statements served to establish patterns of manipulation in Weinstein's behavior and thus show that, as in the case of the plaintiffs, it was not consensual sex as the defense claimed. The fact that the trial's original judge, James Burke, allowed these additional women to be questioned was said to have been a mistake. That's how the judges saw it after Weinstein's defense lawyers appealed. The New York Court of Appeals has jurisdiction over all other courts in New York.

For various reasons, the basis of the trial consisted solely of the experiences of two women. Other alleged victims came from other countries and “only” suffered sexual harassment, which does not constitute a criminal offense. Or his case had prescribed. Others felt unable to do so for psychological reasons. That's why the prosecutor needed additional witnesses. The presence of witnesses who are supposed to provide information about the accused's previous bad actions, the so-called “Molineux witnesses”, is intended to demonstrate that these are patterns of behavior. However, according to four of the seven judges, Weinstein could not prove it.

Has the world we live in gotten worse again since Friday's verdict? Proponents of jurisprudence might say: No. One of Weinstein's lawyers said after the overturned verdict: “You can't convict someone based on his entire life.”

The laws must be alive.

But laws are always a vision of the times in which we currently live. Professor David Strauss of the University of Chicago writes that the Constitution is also alive. “An immutable constitution would not fit well in our society. Either it would be ignored or, worse still, it would be an obstacle, a relic that prevents us from moving forward (…).”

Of course, anyone who wants to change laws, even constitutions, should think about it more than once. But it is not just the current overturning of the Weinstein verdict that shows that the justice system is in urgent need of an update when it comes to sexual violence.

In a statement, the three losing appeals court judges criticized their colleagues for continuing a dangerous trend: overturning guilty verdicts in sexual violence cases. While not long ago the Weinstein case was a ray of hope, a milestone in legal history, a hope for victims of sexual violence, its repeal now shows that the legal foundations must urgently follow the changes. Because even if #MeToo provokes social change, what is it worth if it fails on such crucial points as conviction?

The California ruling is also being appealed

Prosecutors must now decide whether to reopen the trial in New York. Experts consider this to be quite unlikely. And since the initial situation was already confusing (only two of the victims were part of the lawsuit and had also had consensual sexual relations with Weinstein on other occasions), their chances probably won't be bad if the process is restarted. Precisely for this reason the prosecutor initially took the risk of questioning Molineux's witnesses.

A fundamental change is now required. The law must adapt to reality. Otherwise, Steven Tyler, Kobe Bryant, Till Lindemann, Russel Brands, P. Diddy, Prince Andrews, Kevin Spacey, Jaime Foxx, Louis CK and their ilk will be allowed to march around the world in white vests and cocky smiles to all. eternity. Maybe Weinstein too. Because even if the 16 years in Los Angeles are still in force, his lawyers would also want to challenge them next month. There were also witnesses from Molineux in this trial.

However, California law considers their statements to be more probative than the New York case, as Gloria Allred, a lawyer for the three women in the California trial, told the New York Times. Also on Weinstein's team for the next challenge: Jennifer Bonjean, the lawyer who also successfully helped Bill Crosby get out of prison.