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Cyrus Vance: What It Takes to Keep Harvey Weinstein, and Men Like Him, Behind Bars

Many interpreted Harvey Weinstein’s conviction and sentencing in 2020 as a painfully overdue moment of reckoning for powerful, sexually abusive men like Mr. Weinstein. As the district attorney who brought the charges against Mr. Weinstein, I certainly felt so.

That is why I was surprised and troubled when New York’s highest state court, the Court of Appeals, recently reversed Mr. Weinstein’s convictions on two grounds. The first ground was that the trial judge erred by allowing the prosecution to introduce testimony from three women Mr. Weinstein had allegedly sexually assaulted but were not part of the indictment, or so-called Molineux evidence. The other ground was that the judge also erred in giving the prosecution permission, if Mr. Weinstein testified (he did not), to cross-examine him on an overly broad range of “bad acts.”

I was not naïve about the challenges in bringing a winnable and legally sustainable case against Mr. Weinstein. I had been a criminal defense attorney for more than 20 years before I was elected Manhattan district attorney. I knew that appeals follow convictions like night follows day, and until the last appeal is heard, the game is not over.

The appeals court decision surprised me because I had been to the trial and witnessed the honesty, raw pain and power of the survivors’ testimonies on the witness stand. It troubled me because with no deference provided to the lower court, the Court of Appeals, in a 4-to-3 decision, had reversed a lengthy, objectively thoughtful, well considered and, importantly, unanimous opinion by a panel of the distinguished intermediate appeals court that sustained every single aspect of the jury’s verdict and evidentiary rulings by the trial judge at the Weinstein trial. That’s rare.

Perhaps the opinion and last word from the Court of Appeals reveals more about the internal politics of New York’s highest court than about providing clear guidance on the legal distinction between rape and consensual sex, or giving clear guidance on what evidence can be admitted distinguishing between the two.

How do we in New York reconcile the decisions of law by members of our highest court that seem disconnected with the factual realities around rape and power differentials that lead to sexual abuse in the workplace? After this Weinstein decision, how do we give faith to victims that the system can work to hold sexual abusers like Weinstein accountable? The answer lies not in the Court of Appeals, but in the legislature.

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