This One Rule Could Determine Harvey Weinstein’s Conviction

As Harvey Weinstein’s trial for sexual misconduct gets underway in New York, prosecutors are planning to take advantage of a key legal exception that could have massive implications for the outcome of the case.

Despite the scores of allegations that poured forth against Weinstein at the height of the #MeToo movement in the fall of 2017, a combination of the statute of limitations and a lack of concrete evidence has made it so that the disgraced Hollywood producer is only facing charges for rape and criminal sex acts for incidents involving two women in New York.

But prior to the trial’s start, prosecutors made a motion in a closed proceeding to introduce the testimony of three unnamed women who have accused Weinstein in addition to the two women named in the indictment. This significant legal exception known as the Molineux Rule — and it could be a game changer in proceedings for Weinstein's case.

Named for a 1901 New York State Court of Appeals decision (People v. Molineux), the Molineux Rule dictates that prosecutors should be allowed ,in some circumstances, to introduce evidence of prior and uncharged crimes into a criminal trial. This means that in Weinstein's case, prosecutors can establish a pattern of behavior based on uncharged allegations that are not actually part of the charges against him.

In general, New York State case law largely forbids prosecutors from letting juries know about a defendant’s criminal history, even when they have previously been convicted of the same crime that they are currently standing trial for. This is in an effort to safeguard against the potential for evidence to prejudice a jury into automatically handing down a ‘guilty’ verdict. 

But according to Jane Manning, a former sex crimes prosecutor and the current director of the Women’s Equal Justice Project, although there is “some intuitive fairness to the idea that you shouldn’t have to defend yourself against everything you’ve ever done wrong in your life,” New York State operates a bit differently.

“That legal principle has been carried to a very far extent, to where someone who is on trial for rape can conceal from the jury that he has a long string of prior sexual assault convictions,” Manning said in an interview with Refinery29.

Manning also says that in criminal cases involving sexual harassment or assault, the Molineux Rule actually makes a lot of sense. "We know that sexual assault is a crime with a high rate of recidivism, so prior incidents of sexual assault really are relevant to the question of whether a defendant committed this specific allegation,” she added.

In the case of Weinstein, Manning said, a judge likely deemed the testimony of unnamed witnesses admissible because they establish a very distinctive modus operandi by the former Hollywood mogul. Famously, many of the allegations against Weinstein followed similar rhythms: approaching women during the course of their work, offering them some kind of professional opportunity, inviting them to a hotel room, and soliciting massages.

An identifiable pattern was also established during the recent, similarly high-profile sexual assault trial of Bill Cosby, wherein the actor was repeatedly accused of inviting his victims over, drugging them, and then assaulting them while they were incapacitated.

But, as Manning points out, even though jurors were clearly aware of the litany of allegations against Cosby, they still failed to reach a verdict during his first trial — meaning that at least some of them were likely unswayed by prior accusations of criminality.

For Weinstein's accusers, the hope is that the Molineux rule in effect will prove to be different: an established pattern can help lead to a clear and distinct conviction for Weinstein.

“I think the evidence shows that jurors don’t rush to convict. For the most part, jurors really do try to follow the law,” Manning said. “Because sexual assault is such a high recidivism crime. We should trust jurors to give the right weight to that evidence, and not run away with their emotions.”