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'This is going to be very ugly': Weinstein defence may use prevailing myths about rape to his advantage

When opening arguments begin Wednesday in the rape trial of Harvey Weinstein, the former Hollywood mogul's behaviour will be under a microscope. But so, too, will the actions of his accusers, and some psychologists worry that outdated myths about rape will be used to discredit them.

Psychologists worry legal team will exploit misconceptions about sex assault victims

Experts say the defence strategy for Harvey Weinstein's sexual assault trial will likely rely on outdated myths about rape and the behaviour of victims. (Eduardo Munoz/Reuters)

This story is part of #MeToo 2020, a CBC News series examining what's changed since the start of the #MeToo movement two years ago and how the trial of disgraced Hollywood mogul Harvey Weinstein will affect the future of the movement.

When opening arguments begin Wednesday in the rape trial of Harvey Weinstein, the former Hollywood mogul's behaviour will be put under a microscope. But so, too, will the actions of his accusers, and some psychologists worry that outdated myths about rape will be used to discredit them.

"I think this is going to be very ugly," said Louise Fitzgerald, professor emeritus in the women and gender studies department at the University of Illinois-Urbana-Champaign.

Weinstein has pleaded not guilty to charges of rape and predatory sexual assault against two women. He has denied any allegations of non-consensual sex.

Fitzgerald said the defence may employ a tactic commonly used in sex assault cases: turning the focus from the accused to the accuser and playing on misconceptions about victims.

One line of defence in such cases is to suggest the rape didn't really happen or that it wasn't really rape.

"They are going to try and capitalize on myths," Fitzgerald said.

One of the accusers in the trial, who hasn't been identified, alleged Weinstein raped her in a New York hotel room in 2013. On Tuesday, Weinstein's lawyers announced they want to use friendly emails the accuser sent to the former producer after the alleged assault in a bid to convince jurors that any contact was consensual.

"There's direct communications between Harvey and women, always friendly, sometimes romantic, that would lead, I think, any reasonable person to think that the claims are untrue," Weinstein's lead defence lawyer, Donna Rotunno, told ABC News.

Tackling rape myths

Fitzgerald, who has written about rape myths and workplace sexual harassment, said there are decades of studies detailing how women behave in certain situations after being sexually assaulted, and the reasons behind that.

In addition to questioning the motivation and actions of the accusers, Weinstein's defence is expected to call two experts to testify about memory. This court sketch shows Weinstein, left, with his lawyers Damon Cheronis and Donna Rotunno in front of Judge James Burke at his sexual assault trial in New York City. (Jane Rosenberg/Reuters)

"Lots of people remain in contact with their abuser for a whole variety of reasons," she said. "In some cases, because he has a lot of power and he can hurt you."

Trauma psychologist Joan Cook said it's disheartening to already see indications from Weinstein's team that it will be relying on an outdated understanding of how victims of sexual assault behave. 

"There's a lot of ways that men and women who have been sexually violated respond, and it's not the way we think," Cook said.

"Most don't go to the police; most don't confront their abuser; and many don't disconnect for various reasons." 

Watch: Rose McGowan, who accused Weinstein of sexual assault, talks about the defence's strategy

Actor who accused Weinstein of sexual assault says defence 'reviving all these old sexual assault tropes.' 1:05

Many survivors are in shock or numb after the assault, so they stay silent, Cook said, because what happened to them may not register right away or because they're afraid of the personal and professional consequences of cutting off contact.

"It's not surprising to me at all that people would have kept in touch with [Weinstein]," said Cook. "He owned Hollywood, so if you wanted to function there, weren't you going to still try and maintain a connection?"

Staying in touch doesn't mean it didn't happen

That was among the reasons Dominique Huett said she stayed in touch with Weinstein, even after she alleged he sexually assaulted her in a Los Angeles hotel room in 2010. She was the first Weinstein accuser to file a civil claim against him.

"I emailed him after the assault happened, but that doesn't mean the assault didn't happen," Huett told CBC News. "It just means I was trying to regain some sense of control back over what he did."

Dominique Huett, who has accused Weinstein of sexual assault in a hotel room in 2010, admits she emailed him after the alleged assault but says 'that doesn't mean the assault didn't happen.' (Steven D'Souza/CBC News)

Huett's allegation falls within the statute of limitations, and she hopes charges can still be filed in California for her case.

"I think the old rhetoric of blaming the victim is very outdated at this stage," said Huett. "I think the #MeToo movement kind of exposed how women are not, you know, liars."

Huett is a member of the Silence Breakers, a group of Weinstein accusers who have come together to amplify the experiences of sexual assault survivors.

Questioning memory

In addition to questioning the motivation and actions of the accusers, Weinstein's defence is expected to call two experts to testify about memory. The judge, however, limited the scope of their testimony and denied a defence request to have them testify about a phenomenon called "unwanted voluntary sex."

Cook said the understanding among researchers used to be that memory was fixed and unchanging, but today, it's recognized that the fact that an assault victim's recollections may change over time isn't necessarily a sign of deceit.

"The truth is, memory is much more fluid, and memories can change, and they can be altered over time," Cook said.

The prosecution will be calling Dr. Barbara Ziv, a forensic psychiatrist at Temple University in Philadelphia who is an expert on rape and sexual assault trauma.

The Manhattan district attorney's office is hoping Ziv can counter some of the myths around sexual assault, including why victims often wait to disclose their assault.

Ziv gave such testimony in the second trial of Bill Cosby, who was convicted on three counts of aggravated indecent assault for drugging and assaulting Andrea Constand, a Canadian woman who met Cosby while working at his alma mater, Temple University, in the early 2000s.

The prosecution also hopes the four additional women who will be allowed to testify even though their allegations against Weinstein haven't resulted in charges will help establish a pattern of behaviour similar to how the testimony of other women did in the Cosby retrial.

Jury is 7 men, 5 women 

The question of how deeply the message of the #MeToo movement has permeated society was an undercurrent during the contentious two weeks of jury selection. Judge James M. Burke cautioned jurors that the case was not a referendum on the #MeToo movement, sexual harassment or women's rights.

In narrowing down the jury pool, the prosecution accused the defence of "systematically eliminating" younger white women, who are more likely to be aware of #MeToo and possibly sympathize with Weinstein's accusers.

Weinstein's lead defence attorney, Donna Rotunno, has been highly critical of the #MeToo movement. She has said it strips the accused of due process, the right to a fair trial and the presumption of innocence. (Mike Segar/Reuters)

In the end, seven men and five women were chosen. Six of the men and two of the women are white. 

How educated the jury is in rape myths will be crucial in determining the outcome, Fitzgerald said.

"That's always what's critical in rape cases — the jury has to be willing and able to see through these things," Fitzgerald said.

Impact of #MeToo

The flood of sexual assault and harassment allegations against Weinstein, which followed a New York Times exposé in October 2017 that sparked the #MeToo movement, ignited an international conversation about women's experiences. But Fitzgerald says she doesn't think public awareness has progressed as far as people want to believe it has.

Fitzgerald worked as a psychological consultant for Anita Hill and her legal team in 1991, when Hill accused Supreme Court nominee Clarence Thomas of sexual harassment. Fitzgerald called that moment the first great awakening for American society in the debate over sexual misconduct.

She said after that, however, society forgot the lessons learned about women's experiences, and the issue fell out of the national conversation. But with high-profile stars now speaking out, she hopes there will be a more permanent reckoning with the issue on national scale.

"I think it's going to be more powerful this time, and it's going to be more widespread and more lasting."

About the Author

Steven D'Souza

CBC News New York

Steven D'Souza is a Gemini-nominated journalist based in New York City. He has reported internationally from the papal conclave in Rome and the World Cup in Brazil, and he spent eight years in Toronto covering stories like the G20 protests and the Rob Ford crack video scandal.