Day 6·Analysis

#MeToo charts new territory as Harvey Weinstein faces criminal charges

Harvey Weinstein has been charged with rape, sexual abuse and sexual misconduct. Will the #MeToo movement get its day in court?

Former prosecutor Sandy Garossino says the courtroom presents a new challenge for the movement

Film producer Harvey Weinstein surrenders on sexual assault charges to the New York City Police Department. (Jeenah Moon/Reuters)

The case that sparked the #MeToo movement has moved from the court of public opinion to the criminal justice system.

Last fall, dozens of women began coming forward to accuse film producer Harvey Weinstein of sexual misconduct. 

On Friday, Weinstein surrendered to New York City police on felony sex crime charges related to encounters with two women.

The charges include rape in the first and third degrees, and criminal sexual act in the first degree for forcible sexual acts.

Weinstein did not enter a plea and has denied having non-consensual sex with anyone. To date, more than 75 women have accused him of wrongdoing.

The allegations sparked the #MeToo movement, in which hundreds of women have made similar accusations against a long and still-growing list of powerful men.

While Bill Cosby's conviction for drugging and molesting a woman came after #MeToo, the charges predate the movement. Weinstein's case marks the first time #MeToo accusations have generated criminal charges.

Sandy Garossino, a former trial lawyer and crown prosecutor, who's now a writer and columnist with the National Observer, spoke to Day 6's Brent Bambury about what that might mean.

Sandy Garossino says #MeToo may affect how witnesses are allowed to testify in court. (Manusha Janakiram/CBC)

We heard Harvey Weinstein's lawyer say that he believes this case hinges on getting 12 jurors who are not "consumed by the movement that seems to have overtaken this case." What do you make of that?

A lot of this is PR at this point. He's got to project that Harvey Weinstein is the victim here and really try and cast doubt initially on the credibility of the accusers, just right out of the starting gate.

You were on this program the week of the not-guilty verdict in the trial of Jian Ghomeshi. Is there a lesson from that trial that could be applied to Weinstein?

Possibly. That was a very peculiar trial, because I felt that the complainants in that case perhaps had not been adequately prepared. They were — each of them — found to have misled police and misled prosecutors. I suspect there's going to be much stronger preparation by the prosecutors in this case, and probably already has been.

Former CBC host Jian Ghomeshi leaves court with his sister Jila, right, after signing a peace bond in Toronto, (Mark Blinch/CP)

But in the conclusion to that case, the judge sort of obliquely referred to a social movement, or what the judge perceived was happening in the culture at large. [The judge talked about] "the need to be vigilant in avoiding the false assumption that sexual assault complainants are always truthful." What do you think of that and do you think that might be an issue when it comes to #MeToo?

We have this idea, popular in public opinion — and for very good reason — to believe women. That applies to the court of public opinion.

When you get into a legal trial, every witness's evidence has to stand or fall on the credibility of the evidence as it's presented, the testimony as it's presented.

So no witness enters the court in a titanium suit and can't be defeated by skilful cross-examination if they are not being completely truthful.

We don't know very much about the evidence that might come forward in this case. But the credibility of the evidence has already been raised by Weinstein's lawyer when he talked about the age of the allegations. It seems like he wants to make an issue of that. Why is the length of time that has passed between the allegations and the trial so important to the defence?

Because it's all he's got. This is the classic thing. This was the Bill Cosby defence and it worked for a while. But I think this is an area where public opinion has shifted, and I think properly so.

Everybody understands that there are reasons that women might not come forward immediately, particularly where there's an imbalance of power. Particularly, as in this case, where the complainant may be someone who had a contractual or professional relationship with Harvey Weinstein. He wielded an enormous amount of power.

No witness enters the court in a titanium suit and can't be defeated by skillful cross-examination if they are not being completely truthful.- Sandy Garossino

We heard the lawyer referring to that too because he said that these were consensual interactions. In cases like these when you have a powerful man, a man who's able to affect the careers of the people who have accused him, these men can always argue that it was consensual because it was transactional. Do you think that #MeToo will do anything to change that?

I think that #MeToo is a social movement that has a lot of impact in the media. In the criminal courtroom, I don't know that it's going to have that much effect. In two of the charges with each of [the two] complainants, the charge is first-degree sexual assault. First-degree sexual assault under New York law is forcible.

The allegation isn't that "I consented because I felt pressure. I didn't feel like I had a choice." The charge is that he physically forced himself on these women. So I think that's a bit different.

But if a social movement or a sense of social change is reflected in interpretation of the law — you know, Bill Cosby was tried twice and his first trial before #MeToo resulted in a hung jury. The second one, last month, resulted in convictions. Do you think that the #MeToo movement changes the way that either the law deals with sexual misconduct or how it could be interpreted given the social values of the moment?

So here's the difference between the first and the second Bill Cosby trial, and maybe this is an area where #MeToo is finding its way into court interpretations. 

The first trial had only one corroborating witness. 

With Bill Cosby, the claims were that this was a longstanding practice, that he administered these drugs to women to overpower them, and [that] he did it multiple times with multiple women over many, many years — decades in fact.

There was only one other witness in trial number one. Trial number two, the same judge made a determination: "I'm not going to limit this to just one witness. I'm going to permit the prosecution to introduce evidence of five other women giving effectively exactly the same story, giving exactly the same evidence."

This is possibly going to be the case with Harvey Weinstein. And I think that we may be seeing courts more willing to introduce witnesses who are saying: "look, this also happened to me," and that may have an effect.

Harvey Weinstein arrives at NYC police station

4 years ago
Duration 0:31
Weinstein surrenders to authorities Friday morning and is expected to face sex crime charges

We're talking about criminal charges but there's also this civil lawsuit that's been filed by actor Ashley Judd. She is alleging that she was blacklisted and she suffered financial and other career ramifications because of her refusal to Harvey Weinstein's advances. So this criminal case is getting headlines obviously, but do you think there should be more attention paid to lawsuits and other civil actions like Judd's?

I would say so, because in a civil lawsuit, the parties are much more evenly-matched. Both of them have to testify, both of them have to give depositions. They're on an equal footing.

In a criminal trial, there's a real asymmetry. The onus is on the complainant, through the prosecution, to prove beyond a reasonable doubt that the accused is guilty. The accused does not have to give a statement. The accused does not have to present himself for depositions. He does not have to be cross-examined. He is protected and shielded by the criminal law because this is the state acting against the individual.

Interview edited for length and clarity. To hear the full interview with Sandy Garossino, download our podcast or click the 'Listen' button at the top of this page.