Join us when we discuss the laws on CONSENT with Weinstein survivors, Jessica Mann and Mimi Haley, Assembly Member Rebecca Seawright, and President of the NY State Trial Lawyers Association, Michele Mirman on Thursday, July 16th, at 7 PM EDT.
Just in time for Sexual Violence Prevention Month!
I had the recent pleasure of interviewing with Tracy Malone, the creator of Narcissist Abuse Support which provides meaningful information on recovery, as well as support, for hundreds of abuse sufferers.
Our discussion ran the gamut between the actual definition for “consent” to the concrete steps people can take to make the world a safer place.
I was happy to be a part of history this morning, if only to “stand and wait” at the sentencing for Harvey Weinstein. Even the few “public seats” were given to the press. Only a handful of onlookers without press passes were allowed into the crowded courtroom.
The first person who the police cut off had been waiting since 6:10 AM for proceedings that were scheduled to start at 9:30. I’d arrived around 7:20 and was the 9th person on the waiting line. But as the group stood hopefully, even Continue reading Today- Harvey’s Words Revealed It ALL!→
At last! Rapist Harvey Weinstein has been handcuffed and remanded into custody. He will no longer hobble down the steps of 100 Centre Street, pandering for sympathy, as he departs the courtroom. He’s in custody awaiting sentencing on March 11th.
Although his attorneys are likely to attempt to secure his release pending appeal, they are unlikely to prevail.
Will Weinstein’s conviction change anything?
His New York based attorney, Arthur Aidala, made several important statements to New York One reporter, Dean Meminger, just steps from the courthouse after the verdict. “If his name was Harvey Jones, he would not have been charged.”
Unfortunately, Aidala is absolutely correct… but not for the reasons he suspects…..
This case received tremendous attention by the press because of Weinstein’s notoriety and because his victims were celebrities. Far from his treatment being unfair because he was singled out, it shows the failure of the system to deal with sexual assault when the victims lack private attorneys like Gloria Allred to represent their interests and are “unknowns” with no press reach or clout.
Aidala also commented that Weinstein reacted, “I didn’t force anyone. I didn’t have to force anyone,” as if “force”is the only weapon in a rapist’s arsenal. Aidala needs a lesson on “consent” and needs to grasp that “consent” is FREELY GIVEN, KNOWLEDGEABLE AND INFORMED AGREEMENT. #FGKIA!
Force, coercion and deception cannot be used to influence agreement in sexual conduct. Weinstein was not only convicted of forcible rape, but also of third degree rape which, in New York, does not depend on “force.” The “absence of consent” results when a sexual predator uses the threat of harm, including destruction of someone’s career, to influence their agreement.
Although Weinstein’s defense team argued that the victims continued their relationships with him after the events in question, they failed to recognize that Weinstein’s control over their careers motivated their continued involvement with him.
Gloria Allred spoke out
Allred addressed reporters subsequent to the verdict. Her client list of “silence breakers,” women who came forward with complaints against Weinstein, includes Mimi Hailey, the victim of Criminal Sexual Assault in this case.
Allred applauded the women who “sacrificed their privacy in the interest of justice,” and called them “role models in courage.”
Allred could make a tremendous contribution to society by recognizing that most victims could only dream of enlisting her aid. There will be no grand movements like #MeToo to focus on their individual struggles. Her greatest accomplishment could be helping to define the meaning of consent in our laws because the masses need to rely on the justice system to do the right thing. Without the meaning of consent defined by law, their dream of justice is a horrific and demoralizing nightmare.
The news coverage on the Weinstein case fails to acknowledge the importance of defining consent in our laws. Society desperately needs this information! Doing so is the critical key to conquering sexual assault. If the Weinstein case has shown us anything, it is how poorly CONSENT is understood by society and our laws. We need this to change!!
Just before 1 PM today, Prosecutor Joan Illuzzi had the last word on locking up accused rapist and sexual predator, Harvey Weinstein. Her three hour summation was an effort to focus the jury on the important facts. She painted a picture of Weinstein as a sexual predator, not a victim of the #MeToo movement, as Donna Rotunno, his lead attorney, had claimed.
Rotunno’s summation, which took place Thursday, accused the prosecutor of creating a fictional universe in which women were stripped of “common sense, autonomy and responsibility.” She totally ignored the impacts of coercion and force.
Ironically, as my “court buddy” Adjunct Law Professor Jim Petzke of John Jay College of Criminal Justice pointed out, her summation plagiarized Atticus Finch’s closing from “To Kill a Mockingbird,” while she reamed Illuzzi for creating “theater.”
As Rotunno marched down the corridor toward the courtroom this morning, the press strained to get her comments.
“How do you think it went?” one shouted.
It went great,” she responded.
“Yeah, great if you’re Atticus Finch,” I quipped.
In the press conference that followed today’s hearing, Rotunno took another run at casting Weinstein’s sexual conduct as “consensual.” She based her entire argument on what happened after, not during, his sexual contact.
Previously, Illuzzi had produced compelling testimony from highly regarded forensic psychologist Dr. Barbara Zif. She pointed out common rape myths about how people behave when they’ve been raped. She included that it was common for victims to continue relationships with the accused. Let’s hope the jury was listening!
The jury will receive their marching orders from Judge James Burke on Tuesday morning after the long, holiday weekend. For sure, the jury will ask what consent means. His response could make or break this case.
Illuzzi mentioned Weinstein’s use of “trickery” in her closing. She claimed the victims were tricked by “luring.” Luring is neither a fraud in the factum nor a fraud in the inducement. It’s not a “fraud in fact” that would make sexual contact a crime. Luring his victims got him, or them, through the door. Coercing vitiated their consent.
Coercion is a crime. And Weinstein continuously used coercion to induce sexual contact. Coercion is the threat of harm. In fact, threatening someone regarding their career is considered a crime in New York, even without sexual contact. It’s a class A misdemeanor.
Coercing someone for sex is a Class E Felony punishable by 2-5 years of incarceration. Yet the prosecutor did not identify coercion as the weapon that Weinstein used to demand sex. Nor did she prosecute for the crime of 2nd degree coercion.
Friday, 2/7/2020- In an effort to impugn the memories of terror and outrageous attack, sworn to by Harvey Weinstein’s victims, his defense trotted out a highly established expert on memory and cognitive perception. Distinguished UC Irvine Professor and Psychologist Elizabeth Loftus, testified to how memory can become “distorted.”
Even before her testimony began, a battle ensued between the defense and prosecution without the presence of the jury. Judge James Burke set ground rules for the testimony he’d allow. The concept of “gist memory” and specifics of memory related directly to the sexual assault of victims in this case were ruled off limits.
Loftus supplied the typical perceptions of memory fading with time. The prosecution reminded the jury that Loftus was not a medical doctor. In fact, when shown a diagram of brain sectors, she declined knowledge of how memory was stored, and the diagram was removed.
Countless times, she used the word “can,” not “shall,” or “will,” to describe possible impacts of Post Event Information (PEI) . She could not supply data on the likelihood of memory becoming tainted by any specific circumstance except the use of Valium. Her statement drew Assistant District Attorney Joan Illuzzi-Osborn’s intense ire.
While “expert witness” testimony was allowed in order to provide overall knowledge of how memory works, inclusion of “Valium” seemed coached and specific to a victim who had testified. Loftus acknowledged she was aware of the use of Valium by one of the victims and that she shaped her remark because of that knowledge. She also readily admitted she was being paid $600 per hour for her expert testimony.
When Loftus referred to military testing on soldiers who were being trained to endure the harshness of captivity, and how the researchers conducting the experiment were able to distort their memories, Illuzi-Osborn was able to secure her admission that these subjects knew their lives and their safety were not actually in eminent danger. She pointed to the difference between real trauma and staged events in which the actual danger did not exist.
Ultimately, Loftus had to admit that core memory for trauma could be stronger than for other types of non-traumatic events.
If weighed on the scales of courtroom justice, it seemed that the prosecution made the stronger argument.
January 6, 2020- In open court, Harvey Weinstein trudged along slowly aided by strong arms at each side while he leaned on his brushed aluminum walker. His bearing seemed pathetically staged to curry sympathy from Judge James B. Burke, and on-lookers. His countenance, weary and beaten, bore no resemblance to someone who, just months ago, controlled the careers of Hollywood stars and the fate of multi-million dollar productions.
Across the street from the Manhattan courthouse at 100 Centre Street, eight beautiful, brave women, who identified themselves as “silence breakers,” gathered in support of the effort to bring Weinstein to justice; Ellen Barkin, Rosanna Arquette, Louise Godbold, Dominque Huett, Sara Ann Masse, Rose McGowan, Lauren Sivan, and Paula Williams.
Articulately, and energetically, they presented their personal statements to the clamoring media. Several times, the presentation had to be stopped to provide breathing room as the reporters converged on top of each other to get their best view. At one point, I found myself swallowed into the melee with two large, eager, camera wielding press vying for my space- creating a moment’s scary sense of being besieged by paparazzi.
Rose McGowan cleared all doubt about why survivors need to speak out….
She remarked: “Living in silence is a death threat to your soul!”
Also today, Los Angeles District Attorney Jackie Lacey announced that Weinstein is being charged with four counts of rape and sexual battery. No matter the result of the New York case, he’ll face further legal consequences for his defiling actions.
Predatory Sexual Assault in New York….
The crimes Weinstein’s charged with rely on the fact that he engaged in sexual conduct without securing consent. Yet, like in most states across the US, New York’s laws fail to define consent. Instead, they rely on the bizarre notion that defining “without consent” is the same as defining “consent.” Clearly, it is not. And when applying a “without consent” litmus test to a crime, only those specific behaviors that the state identifies as “without consent” matter.
The application of law is based on the ancient Roman concept- Nulla pena sine legue – which means, if the law does not specifically state a prohibition, the behavior is not a crime.
The methods a person can use to engage in sex crimes are infinite. Selecting a handful of those methods as “prohibited” behavior fails to protect society. Society can only be protected if the concept of “consent” is clear in order for all nonconsensual sex to be recognized as criminal behavior.
Why do we have this bizarre way to address sexual assault?
Simply put, women, the principle targets of sexual assault, have been considered “less than” throughout the ages. And the gravity of causing them defilement by devious, coercive or violent actions has been seen as trivial by our lawmakers, who, for the most part, have been men.
Rape mentality is embed in our justice system which, for generations, has decidedly determined that only certain ways of conducting sexual assault, not every way of conducting sexual assault, are punishable.
Commonsense dictates that if someone does not consent, no one has the right to impose themselves; just like failure to secure consent results in criminal charges when the offender takes a victim’s property. But as our laws exist, consent is not actually the benchmark to determine whether or not sexual conduct is legal. Instead, a narrowly stated concept of certain prohibited “without consent” behaviors determines if a crime took place. In Weinstein’s case, although the statutes say that he should have elicited consent from his targets, they fail to define what consent actually is.
Because only conducting sexual contact under certain circumstances of non-consent makes unsecured consent a crime in New York, it remains unclear whether the prosecutor or the defense will make the stronger argument under our absurdly antiquated system.
Overhauling sexual assault laws
If the defense prevails, it proves one and only one thing….. not that Harvey Weinstein is anything but the immoral scumbag we recognize him to be, and that he violated scores of women, but that our laws have failed to protect us against scumbags for centuries, enabling society to develop a callous rape mentality. And our lawmakers need to protect us and our future generations from defiling sexual conduct.
The right to engage in sexual contact without consent must stop. And it will only stop when our laws state exactly what consent is – free given, knowledgeable, and informed agreement, #FGKIA, just like we recognize it in every code and law dealing with any other “nonsexual” conduct.
Insist that your lawmakers #CodifyConsent in order to protect the residents of your state or jurisdiction.
“This is the primer for defining consent!” Hon. Sally Siegrist, Indiana State Representative.
July 30- Today’s court date for Harvey Weinstein has been postponed ’til September 20th.
What will happen then?
Superior Court Justice Jame Burke will deliver his decisions on motions that have been filed “off-calendar” by the prosecution and the defense. Those motions could include a decision to admit evidence of “prior bad acts” into testimony.
New York judges are held to narrower constraints than in Pennsylvania, where admitting testimony from prior victims turned the tide against Bill Cosby.
The impact of consent
If NY’s laws defined consent as “freely given, knowledgeable and informed agreement, #FGKIA,” convicting Harvey Weinstein would be a slam dunk! But in NY, like many other states, prosecutors are held to convincing the jury that the offender’s conduct meets specific language for a particular act that has been legislated as “without consent” in penal code. This narrow approach makes it difficult to prove whether a sexual assault took place…. not because the case lacks evidence, but because the law simply fails to define the specific type of sexual assault that occurred. Coercing a person into acquiescence should never be seen as “consent” in our laws.
A similar current case in Manhattan could provide clues to Harvey Weinstein’s fate
Neurologist Ricardo Cruciani is scheduled for a decision on motions on August 2nd. He, like Weinstein, is charged with Predatory Sexual Assault, which carries harsh penalties under NY State law.
Cruciani stands accused by six patients of molesting and sexually assaulting them at his office at Beth Israel Hospital in NYC. One patient described that she felt helpless to resist his attacks because she suffered from chronic pain. He was the only doctor who’d helped manage her pain for several years. Eleven other patients at his practices in PA and NJ made similar claims against him. Supreme Court Justice Mark Dwyer will announce his decisions on the Cruciani motions on Thursday, August 2nd.
For more information on how consent impacts sexual assault…. watch this TEDx Talk.
In her very first question for our radio interview, Kaity Kline, Public Affairs Director for Rowan Radio On Demand, 89.7 WGLS FM, wanted to know; Why is it sexual assault even when the victim doesn’t expressly say “no” – like in the case of accused sexual predator, Harvey Weinstein?
A handcuffed Harvey Weinstein made his way into court today in lower Manhattan charged with rape and a criminal sex act. Whether he gets locked away or not will depend largely on whether Cy Vance, the Manhattan District Attorney, makes the case for applying the Continue reading Harvey Weinstein clearly lacked “consent!”→
Until #MeToo, rape mentality was far more widespread than society recognized. The fact that so many celebrities, politicians, successful businessmen and more were recently exposed for abhorrent sexual acts, shows how well-hidden rape mentality has been. Even the President of the United States thinks that forcing his wife into sex is acceptable behavior – a recognition that Continue reading What is Rape Mentality and How Can We Stop It?→
When you were a child, did your big brother steal from the cookie jar and blame you? Perhaps your parents punished you by having to write 100 times, “I’ll respect my family’s property, I’ll respect my family’s property, I’ll respect my family’s property.”