Two of the most high-profile, closely watched criminal cases of the #MeToo era are headed to trial in October, starting within a day of each other. Harvey Weinstein and Danny Masterson will face juries at the Clara Shortridge Foltz courthouse in downtown L.A., defending against allegations that they raped multiple women.
Weinstein is charged with 11 counts of sex crimes, including rape, in connection with the assaults of five women from 2004 to 2013, which cumulatively carry a sentence of up to 140 years. Masterson is charged with three counts of rape between 2001 and 2003, which collectively could mean up to 45 years in prison. Both have steadfastly maintained their innocence.
Ahead of the trials, The Hollywood Reporter spoke with legal observers who note that sexual assault exists in a special domain of law. A statute in the California evidence code will allow jurors to use individual charges to corroborate others and to consider evidence involving prior bad acts.
A widely wielded though little discussed statute will allow the juries to consider the cases in their entirety, as opposed to individually assessing each charge.
“When you have multiple acts of alleged sexual violence, each act is usable to corroborate the facts of the others,” says Halim Dhanidina, a former prosecutor and judge who is now a criminal defense attorney.
According to the Judicial Council of California Advisory Committee on Criminal Jury Instructions, if jurors find that prosecutors “proved beyond a reasonable doubt that the defendant committed one or more” of the crimes, they may conclude he “was disposed or inclined to commit sexual offenses” and, based on that, reach the conclusion that he is guilty of the other charges, too.
“The evidence statute is not reported enough, considering the role it plays in sex crimes charged every day in the justice system,” Dhanidina notes. “It can take two or more individual weak cases and [really] make them an overwhelmingly strong case.”
In Masterson’s case, prosecutors allege a pattern of behavior, which attorneys say is an important factor. Masterson is accused of inviting each of the women to his Hollywood Hills home, giving them a drink that made them feel discombobulated and dragging them into a jacuzzi before taking them upstairs and raping them. “That’s the M.O.,” says Dhanidina, who emphasizes the consistency of the accounts. “The use of drugging to incapacitate complaining witnesses, along with the hot tub, is a compelling piece of evidence.”
Notes criminal defense attorney Julia Jayne: “In the absence of physical evidence where cases are old, it adds a lot of weight to the prosecution’s case. It gives more context to the relationship because the defense is going to say it was consensual.” (Prior bad acts, even if uncharged, can be introduced into trial, even though police declined to press charges.)
One of Masterson’s accusers reported her alleged rape to police in 2004. Even though no charges were filed against the actor, who didn’t respond to requests for comment, prosecutors could introduce that report. Meanwhile, Weinstein faces the same hurdle of prosecutors presenting evidence of “prior bad acts.” In addition to the five Jane Does whose accounts are related to the charges, four other women will testify that Weinstein assaulted them. (L.A. judge Lisa Lench is excluding testimony from actresses Rose McGowan and Daryl Hannah, the former because many of the accounts were more recent than McGowan’s and the latter because Hannah didn’t allege assault.)
Weinstein appealed his New York conviction based on the introduction of prior bad acts testimony from three women, but the appeals court in June found that evidence of the mogul’s alleged uncharged crimes was fair game to counter the defense’s arguments that Weinstein believed his accusers consented.
Juda Engelmayer, a representative for Weinstein, says the extraneous information taints the producer’s image and shouldn’t be allowed. He tells THR that it’s “patent prejudicial overkill, purely intended to paint the darkest portrait of Harvey to ensure jurors are so horrified they feel they have no other choice.”
Awaiting trial, Weinstein sits in L.A.’s Twin Towers Correctional Facility, where he’s continuing to serve his existing 23-year sentence. (The jury in his L.A. trial will be allowed to consider his New York conviction.) As with Masterson, prosecutors are expected to present a consistent narrative: Weinstein weaponized his Hollywood mogul status to lure women with entertainment aspirations into hotels, where he would corner and assault them.
The attorneys consulted by THR say they expect that state law involving evidence in sexual assault trials to weigh strongly against both men.
Notes Joshua Ritter, a defense attorney and former L.A. prosecutor, “Each allegation from each individual victim might not be all that strong if it was alone, but when you put them all together, it’s almost insurmountable.”
This story first appeared in the Oct. 5 issue of The Hollywood Reporter magazine. Click here to subscribe.