After almost three weeks of testimony from 35 witnesses, the jury in the Harvey Weinstein trial is now behind closed doors, wrestling with whether the former Hollywood titan is guilty on two counts of predatory sexual assault, the most serious of five charges against him.
Close to 100 women have come forward with accusations of sexual assault or misconduct against the former producer, but this trial relates to two women only: Miriam Haley, a former production assistant on the Weinstein-produced Project Runway, and aspiring actress Jessica Mann.
As they deliberate, here are some of the key questions the jury of seven men and five women is considering:
1. How believable are the main complainants?
This question has been at the heart of the trial from the beginning. Both Haley and Mann maintained sexual relationships with Weinstein after their alleged assaults. The defence, arguing that the women made a choice to be with Weinstein, says the relationships were consensual. Weinstein’s lawyer, Donna Rotunno, says the prosecution case is a fiction in which women have been stripped of autonomy and common sense.
“In their universe, women are not responsible for the parties they attend, the men they flirt with, the choices they make to further their own careers, the hotel invitations, the plane tickets they accept,” Rotunno said in her closing argument.
On the second day of deliberation, the jury requested a read-back of Haley’s testimony relating to two key events:
- Her accusation that Weinstein forced her into a sex act on July 10, 2006.
- Her account of July 26, 2006, when she met Weinstein at the Tribeca Grand Hotel. In that meeting, she said, he grabbed her hand, pulled her toward the bed, and she went numb as they had intercourse. The second encounter is not part of the charges.
The prosecution has always tried to focus the jury on Weinstein’s actions. “By going to Harvey Weinstein’s home, did she deserve what she got?” assistant district attorney Joan Illuzi asked in her closing statement.
“There are no blurred lines here — this is a crime and a wanton disregard for other people.”
Mann was in what she described as an “extremely degrading” relationship with Weinstein. The prosecution argued that Mann was open to it. “She owned her behaviour for the chance to come here and tell you, ‘Harvey Weinstein raped me.'”
The jury may also consider the testimony of psychologist Dr. Barbara Ziv, who testified that sexual assault survivors often maintain a connection with their assailants after the assault.
2. How do jurors handle Annabella Sciorra’s accusation?
In one of the most dramatic days of testimony, actress Annabella Sciorra provided a compelling story for the prosecution. She alleged Weinstein raped her in the winter of 1993-94 — a time beyond the statute of limitations, but the prosecution is using her case to support the most serious charge of predatory sexual assault.
The jury must find that Weinstein raped Sciorra and assaulted Haley or that he raped Sciorra and raped Mann, to convict on either of the predatory sexual assault charges.
Within 40 minutes of starting deliberations on Tuesday, the jury wanted to know why there were no separate charges for Sciorra. The judge told them to consider only what’s before them. In attempting to undercut her testimony, Rotunno claimed Sciorra invented the accusation only after being contacted by journalist Ronan Farrow in 2017, in order to become relevant as an actress again.
The prosecution countered, questioning why Sciorra would describe in painful detail how she cut herself after the alleged rape and would use the blood to decorate a wall in her apartment. “This is a big career move for Annabella? Really?” Illuzi asked incredulously during her summation.
3. How do you prove predatory sexual assault?
Predatory sexual assault is the most serious charge Weinstein is facing. It carries a minimum sentence of 10 years to life and a maximum of 25 years to life. It encompasses the other charges Weinstein is facing for each woman, so for the jurors to convict Weinstein, they must find that he raped or sexually assaulted the women using physical force.
“This charge is not pursued very often, but it’s basically twice as difficult to prove than a typical rape charge, because the jury has to believe the perpetrator committed two rapes and not just one,” said Matthew Galluzzo, a criminal defence attorney and former sex crimes prosecutor in New York
“I think there’s a distinct possibility here that the jury will conclude that Annabelle Sciorra was raped but not the other two complainants for the predatory sexual assault charges, meaning there will be no convictions on those.”
On each of the first two days of deliberation, the jury wanted an explanation or a rereading of the charges.
4. Weinstein’s behaviour before #MeToo
On the first day of deliberation, the jury wanted to know more about how Weinstein reacted in the summer of 2017 to rumours that women were talking to reporters about him. It was in October 2017 that the New York Times exposé on Weinstein came out. The jury requested emails in which Weinstein red-flagged specific women that he suspected were discussing his sexual conduct. At the top of the list was Sciorra. The prosecution has said Weinstein was most concerned with Sciorra, because she was “in his world” and the other victims were not.
Private investigator Sam Anson testified that Weinstein called him and was “agitated” and “concerned,” but ultimately did not hire him to investigate the names on the list. The list of names contained in the emails included both men and women but was mostly redacted, except for Sciorra, on judge’s order.
5. The #MeToo movement
One thing the jury cannot consider in its deliberations is the movement that the allegations against Weinstein sparked. The #MeToo movement’s presence in and around the trial is undeniable. Judge James Burke, however, cautioned the jury early on that the case wasn’t a referendum on #MeToo.
Still, the defence has referred to the larger issues at stake, claiming the women changed their stories after the Times exposé came out in 2017, often referring to one version of the truth that existed at the time the events happened and a post-#MeToo version of events. Weinstein, Rotunno said, “was the target of a cause and a movement” and the women became “part of a movement, truth be damned.”
“It’s probably not possible to throw the #MeToo movement out of your head entirely if you’re a juror,” said criminal defence lawyer Dmitriy Shakhnevich. “That movement took shape long before this trial even began. That being said, any juror who is found to have not ignored it could be in trouble. So I don’t know if many would take that chance.”