OPINION - Harvey Weinstein was a predator but even he deserves due process

Harvey Weinstein at his 2020 New York rape trial (AP)
Harvey Weinstein at his 2020 New York rape trial (AP)

The verdict was momentous; so too is the overturning of it. The decision by the New York Court of Appeals to overturn Harvey Weinstein’s 2020 conviction for the rape of young actress Jessica Mann, in a hotel room in Manhattan 11 years ago, and a sexual assault on a British production assistant has generated anguish for the women of the #MeToo movement.

It was the conviction of this colossus that sparked a generational change in the way women across the world responded to the casual assumption of many powerful men that sexual rights over their subordinates was one of the perks of the position.

And now, with the 4-3 decision by the court, that gain seems to have been set back, if not reversed. Weinstein is said to have wept tears of joy when he heard the decision — though there remains a 2022 conviction for rape in California which he is also hoping to overturn.

The women who led #MeToo are angry. Tarana Burke, who established the movement, declared that “the original verdict... marked a change in how this justice system was going to operate. I think that we felt that we were on a road to seeing a different America. And this moment makes it feel like we were wrong”.

Similarly Ashley Judd, the Double Jeopardy star, said: “This is an act of institutional betrayal. Our institutions betray survivors of male sexual violence, and we need to work within and without the systems to start having... ‘institutional courage’.”

The institutions didn’t betray anyone. The reason Harvey Weinstein’s conviction was overturned was that the judge in the case apparently got carried away

Except the institutions didn’t betray anyone. The reason Harvey Weinstein’s conviction was overturned was that the judge in the case, apparently carried away by the tide of vociferously expressed female opinion to which he should have been immune, allowed a succession of character witnesses to speak about their own horrible encounters with Weinstein.

According to his lawyers, Judge James Burke “overwhelmed” the trial with “excessive, random and highly dubious prior bad act evidence”. So, Weinstein hasn’t been let off on the basis he wasn’t guilty, but in part on the basis of the bad judgment of a judge who allowed women to testify whose claims did not feature in the indictment.

It’s always a tricky one, showing evidence of prior bad conduct, but in this case there are grounds for accepting that he was denied due process. A female judge, Jenny Rivera, declared “it is an abuse of judicial discretion to permit untested allegations of nothing more than bad behaviour that destroys a defendant’s character but sheds no light on their credibility as related to the criminal charges”.

In other words, a criminal trial is not an occasion for individuals to vent their pain about ways in which they have been allegedly mistreated by a defendant. It is a trial to determine guilt or innocence. The upshot is, a man who demonstrably was guilty of predatory sexual behaviour and who has been convicted of rape in at least one case, is now feeling that he’s well on the way to regaining his freedom if that other Californian verdict is also overturned.

The integrity of the criminal justice system matters, and the overturning of this verdict may ensure that this particular abuse of it doesn’t happen again soon.

Of course #MeToo did a great deal of good. I know of a boy who had sexually assaulted a young girl and who wrote to her to admit his guilt in the aftermath of the Weinstein verdict; he was scared. So too were other, bigger fish. But the rules that hold for other crimes cannot be suspended in the case of rape. People are entitled to due process. Even powerful men are innocent until proven guilty.

And the worrying thing about the understandable wish to secure rape convictions against the guilty is that we are tempted to shortcut the normal processes in order to get the results we want.

The Scottish government is proposing to introduce juryless trials in rape cases, on the basis that juries may produce the wrong verdicts. It is an astonishing move, a radical departure from the judicial traditions of all parts of the UK. With luck, the political crisis overwhelming the heroically useless First Minister, Humza Yousaf, will see this terrible idea off. But it’s a sign of the way the wind is blowing.

This is not to say that there aren’t reforms that should be made to the handling of rape cases, more of which are being brought to trial here, though plagued by delays in the system.

It is to say that even bad men deserve justice, even creeps like Harvey Weinstein. The justice system cannot be a casualty of women’s just wrath at the past sins of powerful men.

Melanie McDonagh is an Evening Standard columnist