After dozens of sexual misconduct allegations surfaced against producer Harvey Weinstein, a criminal conviction is still not a sure thing. A December 20 hearing will now indicate whether his case will move forward at all.
Weinstein's reputation has been destroyed in the court of public opinion — but on a legal level, things are a bit more complicated.
In October of 2018, Judge James Burke threw out a count involving Lucia Evans, who detailed her alleged sexual assault by Weinstein in Ronan Farrow's October 2017 New Yorker piece. The reason, states NPR, is that an NYPD officer failed to tell prosecutors of an account from a friend of Evans' that contradicted her claims.
Weinstein's lawyer Ben Brafman believes he has evidence that could toss out all criminal charges against Weinstein: Emails that reveal his accusers were in friendly communication with him after their alleged assaults.
The emails reveal that Mimi Haleyi, who claimed Weinstein forcibly performed oral sex on her in 2006, exchanged pleasantries with the defendant years after the alleged incident.
A second accuser, referred to in documents as CW-4, allegedly responded to one of Weinstein's emails hours after he allegedly assaulted her with "I have been thinking about you too.'"
(CW-4 is reportedly not named in the criminal case, but is mentioned here as Brafman believes the additional accusers could be called upon in court to offer the prosecution "prior bad acts" evidence, per Variety.)
Brafman believes that these emails fit his narrative: That Weinstein was an adulterer who had consensual relationships with multiple women.
"This is not about #MeToo being bad," Brafman said, per NPR. "But when you have a #MeToo movement that pressures public officials to take certain action when perhaps it's not warranted, then it gets to be very, very scary. And I think that's what happened here."
It's worth noting that it is not uncommon for sexual assault survivors to stay in touch with their assaulters, and that these emails do not prove or disprove a crime occurred.
The judge's decision on whether or not to move forward with Weinstein's case upon hearing Brafman's take will certainly be one that advocates of the #MeToo movement are watching closely.
Refinery29 has reached out to Brafman for comment.
If you have experienced sexual violence of any kind, please visit Rape Crisis or call 0808 802 9999.