To the very end of Harvey Weinstein’s rape trial in Los Angeles, his defense team lawyers didn’t let up on their efforts to malign and “slut shame” Jennifer Siebel Newsom and the other accusers, arguing that these women falsely accused the producer of assault because they were embarrassed they had “transactional sex” with him to advance their careers.
During opening statements, one of Weinstein’s attorneys’ said that Gov. Gavin Newsom’s wife would just be “another bimbo” who slept with the former movie magnate “to get ahead” if she didn’t enjoy her current political profile. This combative strategy didn’t let up in closing arguments Thursday, according to reports, with another of Weinstein’s attorneys disdainfully characterizing the women who testified against him as “fame and fortune seekers.”
According to defense attorney Alan Jackson, Siebel Newsom in particular was “theatrical” and “overly dramatized” in her testimony about her alleged 2005 attack by Weinstein in a Beverly Hills hotel, the Daily Beast reported. California’s first partner, a documentary filmmaker and once aspiring film and TV actor, couldn’t “square away” the fact that she had consensual sex with him.
“Regret is not rape,” Jackson said.
This strategy of casting Weinstein’s accusers as “flat-out liars” during the five-week trial shocked and angered many, particularly those who think that the #MeToo ethos of “believing women” has made it unacceptable to aggressively cross-examine alleged rape victims.
But legal experts say attorneys still rely on these confrontational tactics to wear accusers down, expose inconsistencies in testimony or to otherwise score points if they sense jurors can be swayed. Experts agree it’s a “highly risky” strategy that could turn the entire case against a defendant.
“This defense strategy absolutely can backfire and cause a lot of anger,” said Michelle Simpson Tuegel, whose Texas-based law firm has represented sexual assault survivors in high-profile cases, such as the litigation against the U.S. Olympic Committee, Michigan State University, and USA Gymnastics over disgraced physician and convicted rapist Larry Nassar.
Tuegel said this aggressive approach didn’t work in one case she was involved in because the jury “could clearly see that the victim blaming and slut shaming.”
“Trying to make someone look promiscuous or just painting them in that light is a cheap move that might have worked better 20 years ago,” Tuegel continued. “Now, in the post-#MeToo era, I think Weinstein’s defense runs an extreme risk of this backfiring in a really severe way.”
Weinstein, 70, is accused by four women, including Siebel Newsom, of assaulting them in Los Angeles County between 2004 and 2013. He faces two counts of forcible rape and five counts of sexual assault. Los Angeles County prosecutors say he lured the women to meetings under the guise of offering career help before assaulting them and threatening them into silence.
Prosecutors on Thursday portrayed Weinstein as a “titan of Hollywood” who used his power to prey on vulnerable women who believed he could give them a big break into the industry, the New York Times reported.
“There is no question that Harvey Weinstein was a predator,” Deputy District Attorney Marlene Martinez said during her closing argument. She said, “like all predators, he had a method.”
On the other side, Weinstein’s lawyers have portrayed his accusers as opportunists who used the #MeToo movement to recast their narratives about their encounters with the once-powerful “Shakespeare in Love” producer. Starting with Weinstein in 2017, the movement saw the downfall of powerful men in media and other industries after they were accused of widespread allegations of sexual assault and abuse of power.
Los Angeles-based criminal defense attorney Joshua Ritter agreed that it was “highly risky” for Weinstein’s team to aggressively cross-examine his accusers and to even disparage them, particularly in a post-#MeToo political climate when Weinstein is the “poster child” for the movement.
But the strategy makes sense if the defense view is that these women didn’t just “misremember” details about their encounters but are “flat-out liars,” Ritter said in an interview with this news organization. There’s also the fact that Weinstein was previously convicted in New York of rape and sexual assault and sentenced to 23 years in prison. Ritter said the prosecutors are essentially playing with “house money,” leaving Weinstein and his attorneys to probably feel like they have nothing to lose and can be “more comfortable taking a more aggressive approach in this case.”
“It’s highly risky but with the potential of a high reward,” Ritter said.
There was one especially uncomfortable moment in the cross-examination of Siebel Newsom, when defense attorney Mark Werksman ask her to show how she faked an orgasm to get the producer away from her after she says he raped her at the Peninsula Hotel.
Siebel Newsom reportedly looked “visibly appalled” and “horrified” when Werksman asked her how she “indicated her pleasure” during the alleged rape. She retorted, “This is not ‘When Harry Met Sally.’ I’m not doing that.” She was referring to a scene in the 1989 movie in which Meg Ryan’s character loudly faked a climax in a busy New York restaurant. Siebel Newsom also said, “I did not indicate my pleasure.”
“He had already raped me,” Siebel Newsom also said tearfully. “This is so gross. I’m sorry.”
Ritter, who previously worked in the same law firm as Weinstein’s legal team, said Werksman probably pushed Siebel Newsom on this point to see if he could bolster his client’s argument that the encounter was consensual. If Weinstein saw her showing pleasure, how would “a reasonable person in Weinstein’s position not have known this was not a fully consensual interaction?” Ritter said.
Ritter said these questions fit a strategy based on the view that Siebel Newsom is a “liar” putting on a performance. But he agreed it can come across as “tone-deaf.” This strategy would only work if the attorney is “really good at reading the room” and is getting the sense that jurors could be sympathetic to this argument, Ritter added.
“It’s a very risky strategy,” Ritter said. “You could turn the entire case against you, where the jury isn’t deciding the case based on facts and evidence but on your demeanor.”
While Tuegel said she wasn’t surprised that Weinstein’s attorney chose this strategy, she also doesn’t see how it will benefit the producer in the eyes of jurors.
“You have to really break down what these women are going through and what they’re getting in return for this trial,” Tuegel said. “They could have easily chosen not to participate in this and just live their lives, rather than being slut shamed and going through a horrible process — one that I’ve watched many clients go through.”
“Siebel Newsom especially has a lot to lose and not a lot to gain by being put under this microscope (over) her life, her decisions, her character, her sexual choices, her career choices,” Tuegel said. She also countered the idea that Siebel Newsom has co-opted the #MeToo platform for her own advantage, saying, “She could have championed the cause without putting herself on the burner as she has done. For any person who is in the political world or a public figure, doing so becomes even harder.”
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