The controversial decision by New York's highest court to overturn Harvey Weinstein's sexual assault conviction has some lawmakers focusing intense new scrutiny on centuries-old legal jurisprudence barring evidence of a defendant's criminal propensity.

In the months since the New York Court of Appeals held in a split decision that the former movie producer had been denied a fair trial after a trial court erroneously admitted evidence of Weinstein's past acts, lawmakers and legal experts also have been split over what legislative reforms may help hold sexual predators accountable without constricting defendants' right to due process.

The decision has reignited a decades-old legal debate around whether sexual assault prosecutions should be excluded from the rule against allowing propensity evidence in criminal cases, so as to aid juries assessing the plausibility of a defendant's consent defense, or whether doing so could result in wrongful convictions or have an unanticipated effect on cases that lack a chorus of survivors.

'Unresolvable Swearing Matches'

Within weeks of the New York Court of Appeals decision overturning Weinstein's 2020 Manhattan jury conviction for sexually assaulting one woman and raping another, a bill began percolating in the New York State Legislature that would explicitly allow juries to hear evidence of a suspected sex assailant's past sexual misconduct, unless a judge deemed the evidence to be unduly prejudicial.

The bill's author, Assemblymember Amy Paulin, D-Scarsdale, sought to bring New York law in line with the now 30-year-old Federal Rule of Evidence 413, which allows propensity evidence in federal sexual assault prosecutions unless a judge finds that any risk of unfair prejudicial harm to the defendant is substantially outweighed by the probative value of the evidence.

Since most sexual assaults occur in private settings, Paulin said, it can be difficult to combat a defendant's claim that the act was consensual — unless there is evidence that can show a pattern of criminal sexual misconduct by the defendant.

Thirty years earlier, a nearly identical argument was put forth by two Republican members of Congress — then-Rep. Susan Molinari of New York and then-Sen. Bob Dole of Kansas — as they pushed to create Federal Rule of Evidence 413 via a rider to the Violent Crime Control and Law Enforcement Act of 1994.

Dole and Molinari argued that because sexual assault cases often turn on difficult credibility determinations, jurors should not be in the dark about a defendant's past sexual misconduct.

"Alleged consent by the victim is rarely an issue in prosecutions for other violent crimes — the accused mugger does not claim that the victim freely handed over his wallet as a gift — but the defendant in a rape case often contends that the victim engaged in consensual sex and then falsely accused him," Dole said in a speech on the Senate floor in 1994.

"Knowledge that the defendant has committed rapes on other occasions is frequently critical in assessing the relative plausibility of these claims and accurately deciding cases that would otherwise become unresolvable swearing matches."

At the time, the Judicial Conference and some Democrats in Congress pushed back on Molinari and Dole's proposal.

"You had then-Sen. Joe Biden, then-Rep. Chuck Schumer joining all the Democrats and standing up and decrying Federal Rule of Evidence 413, talking about the importance of protecting due process and the fundamental presumption of innocence," said Amanda Jack, a former Manhattan public defender who now directs policy for the nonprofit Legal Aid Society.

'So Transparently A Knee-Jerk Reaction'

While Dole and Molinari successfully included Federal Rule of Evidence 413 into the crime bill, Paulin and other Democratic lawmakers who backed the New York bill have struggled to gain broad support for it.

The New York bill's most outspoken critic has been the Legal Aid Society, which provides free legal representation to low-income New Yorkers. The group argues that changing New York evidence laws to allow propensity evidence in sex crime cases would be a blow to defendants' due process rights, would disproportionately harm Black men, and would not result in a greater measure of justice for survivors.

The New York bill, Jack told Law360, was "so transparently a knee-jerk reaction to one case, one much-reviled man."

"There are just certain things that are bedrock and have to remain that way and just can't be chipped away at," Jack said, arguing that changing the law to allow evidence showing a person's propensity toward criminal misconduct would undo centuries-old protections to the presumption of innocence.

"You can go back to the 1600s and find opinions by judges in spirited Old English saying, 'You can't just bring in propensity evidence, you can't just say the person did it now because they did it before,'" Jack said.

At Weinstein's trial, six female witnesses testified about their experiences of being lured into isolated situations and then sexually assaulted by the onetime Hollywood mogul, who has stridently asserted his innocence.

The jury convicted Weinstein of sexually assaulting one complaining witness and raping another. Weinstein quickly appealed the decision, arguing that the testimony from the other women fell outside the four corners of his indictment, depriving him of a fair trial.

The Court of Appeals majority opinion in the Weinstein case, penned by Judge Jenny Rivera, agreed that the testimony of witnesses not part of the indictment had clouded Weinstein's trial and that the threat of a cross-examination highlighting untested allegations undermined Weinstein's right to testify.

Prosecutors had been improperly allowed to introduce evidence of Weinstein's past acts in violation of the so-called Molineux Rule, the majority held, referring to the New York Court of Appeals decision in People v. Molineux from 1901. In Molineux, the court held that allegations of prior misconduct or uncharged crimes may not be admitted for the sole purpose of establishing the defendant's propensity for criminality, with some exceptions.

In the 1970s, the Molineux decision and its exceptions served as a model for Federal Rule of Evidence 404(b) — which allows evidence of a defendant's past misconduct or crimes for relevant reasons such as showing their motive, intent, knowledge, absence of mistake, identity, or common scheme or plan, but not to show they are a bad person or criminally inclined. Even then, a court must weigh the evidence's probative value against the risk of prejudicial harm to the defendant.

While the prosecution had argued that the testimony from women not named as complainants in Weinstein's indictment — the Molineux witnesses — showed his state of mind during the assaults and his understanding of nonconsent, the majority said that if the prosecution's analysis were upheld, "it would eviscerate the time-tested rule against propensity evidence."

"The only evidence against defendant was the complainants' testimony, and the result of the court's rulings, on the one hand, was to bolster their credibility and diminish defendant's character before the jury," Judge Rivera wrote. "On the other hand, the threat of a cross-examination highlighting these untested allegations undermined defendant's right to testify. The remedy for these egregious errors is a new trial."

Weinstein, who remains in custody as he serves a 16-year prison term for a 2022 rape conviction in Los Angeles that he is also appealing, is tentatively scheduled for a November retrial in Manhattan.

Weinstein also faced potential prosecution in England over an alleged assault of a woman in London in the mid-1990s, but on Sept. 5, the Crown Prosecution Service dropped those charges against Weinstein, saying it no longer believed there to be a realistic prospect of conviction.

'A Disturbing Trend'

Critics of the Weinstein decision in the New York case argue that our laws need to keep up with the changing times.

A dissenting opinion in the Weinstein decision penned by Judge Madeline Singas and joined by Judges Michael J. Garcia and Anthony Cannataro described the majority's analysis as a "step backwards from recent advances in our understanding of how sex crimes are perpetrated and why victims sometimes respond in seemingly counterintuitive ways."

"By whitewashing the facts to conform to a he-said/she-said narrative, by ignoring evidence of defendant's manipulation and premeditation, which clouded issues of intent, and by failing to recognize that the jury was entitled to consider defendant's previous assaults, this court has continued a disturbing trend of overturning juries' guilty verdicts in cases involving sexual violence," Judge Singas wrote.

By suggesting that consent is easily ascertainable, Judge Singas said the majority ignored the legal and practical realities of proving a lack of consent, and stripped the prosecution of an essential tool to prove a defendant used force while believing the victim did not consent.

The "majority's determination perpetuates outdated notions of sexual violence and allows predators to escape accountability," Judge Singas wrote.

Assemblymember Jeffrey Dinowitz, D-Bronx, who supports the New York bill, says the Molineux rule is "antiquated" and "inadequate" in the face of sexual crimes. He argues that the Weinstein case underscores the urgency of reforming the state's evidence laws.

"I and others who support the bill believe that, when it comes to these types of crimes, there are people who have a propensity to do this and therefore those past actions should be taken into account," Dinowitz, an attorney, told Law360 in an interview.

Recent research, based on analysis of DNA collected from previously untested sexual assault kits, appears to bear that out.

Rachel E. Lovell, an assistant professor of criminology at Cleveland State University, whose research focuses on gender-based violence and victimology, told Law360 that the push in recent years to process previously untested sexual assault kits has revealed that "serial sexual assault offending is much more common than previously known."

For the past decade, Lovell has been the lead research partner to two Ohio jurisdictions as they tested tens of thousands of sexual assault kits as part of the U.S. Department of Justice-funded Sexual Assault Kit Initiative.

Data collected from the Sexual Assault Kit Initiative provides a fuller picture of serial sexual assault offending. Lovell's research shows that once Michigan's Wayne County, which includes Detroit, and Ohio's Cayahoga County, which includes Cleveland, submitted previously unprocessed sexual assault kits for testing, the data revealed that between a quarter and a third of suspects connected to the tested kits are serial sexual assailants.

"The real rate is much higher," Lovell told Law360, noting that the figures don't include unreported sexual assaults, those cases where a kit was not collected, not retained, or not tested, as well as those kits that lacked sufficient DNA evidence.

Jonathan Kurland, a former Pennsylvania state prosecutor, told Law360 in an interview, that for "most offenders, especially in terms of sexual violence, this isn't usually the first time they've committed a crime.

"Most crimes like sexual violence aren't committed spontaneously or just reflexively, it's done with some kind of planning or premeditation, with an idea about how you're going to select your victim, how you're going to isolate your victim and how you're going to get away with it ahead of time," said Kurland, who is now an attorney advisor at AEquitas, a DOJ-funded nonprofit that aims to improve prosecution practices related to gender-based violence and human trafficking.

Kurland said prosecutors could also argue that evidence of a defendant's other acts of sexual misconduct against different victims should be admissible under 404(b) if it shows a defendant's knowledge of what he was doing or that he acted knowingly in committing the crime.

For example, Kurland said that prosecutors could argue that evidence of a defendant's prior acts shows how the suspect learned to commit a crime or groomed a prior victim, which could serve to prove what the defendant did to groom their current victim.

'Unintended Consequences'

Carving out a special evidence rule for sexual assault prosecutions may have an unanticipated effect on cases where there isn't a chorus of survivors, some experts say.

"I'm just not fully sold on the idea that as a reaction to Weinstein's conviction being overturned, that you want to make a special rule for sexual assault cases when it comes to the prohibition on character evidence to prove propensity," Northwestern University Pritzker School of Law professor Deborah Tuerkheimer told Law360 in an interview.

"I worry that it can have the unintended consequence of reinforcing the view that one victim's account is not good enough, that we need credibility en masse to get to a conviction," Tuerkheimer said.

"That one victim case, that single accuser, is important too," Tuerkheimer said.

Tuerkheimer, a former New York prosecutor whose research as a professor includes criminal law, evidence and feminist legal theory, says there is a "pervasive credibility discounting" of accusers due to myths and misconceptions about them, which makes it difficult to persuade jurors, beyond a reasonable doubt, of a sexual assault defendant's guilt.

Changing evidence laws may not be the answer, she said.

In a footnote to the New York Court of Appeals' ruling in the Weinstein case, the majority warned of potential unintended consequences if it allowed the trial court's evidentiary rulings to stand.

Opening the door to propensity evidence, they said, "would only amplify the risk that biased jurors would justify a vote to convict defendants of color on such uncharged conduct in cases where the evidence supporting the charged conduct is weak — an all too real phenomenon. Hollowing out the Molineux rule will not end systemic racism, but it may very well exacerbate societal injustices replicated within our courts."

As lawmakers explore potential measures to create exceptions to the rule, Jack of The Legal Aid Society argues that changing New York's evidence law would not just affect "the white movie mogul predator Harvey Weinstein," but also people of color and people without means.

She pointed to a National Registry of Exoneration report from 2017 that found a Black person incarcerated for sexual assault is 3.5 times more likely to be found innocent than a white person incarcerated for sexual assault.

But Paulin said she didn't believe the bill would lead to wrongful convictions, saying that theory hasn't been borne out in the jurisdictions that have embraced propensity evidence in sex assault cases.

"When you have multiple witnesses, the odds of having a wrongful conviction are nil to none," she told Law360.

While the New York bill fizzled out before it could make it to a floor vote, Paulin said she intends to keep pushing for the bill in the next session, which begins in January.

Tuerkheimer said she's not sure that "evidentiary tinkering" is the answer and that she's interested in "reforms that might address the real, real deficiencies on the part of the criminal process to respond to sexual assault."

She said legislators could consider passing course-of-conduct statutes, which would allow juries to convict when they find that a defendant has engaged in a criminal series of acts over time with continuity of purpose.

"Any kind of course-of-conduct legislation that criminalizes a pattern of conduct rather than isolated one-off incidents, that's, to my mind, an innovation that is responsive to what makes gender-based violence often different from other kinds of violence, because it does tend to be patterned," Tuerkheimer said.

--Editing by Orlando Lorenzo.

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