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In Sex Crimes Cases, New York Weighs Allowing Evidence of Prior Bad Acts

LocalIn Sex Crimes Cases, New York Weighs Allowing Evidence of Prior Bad Acts


When New York’s top court threw out Harvey Weinstein’s conviction on felony sex crime charges last month, the ruling hinged on a strategic decision by the prosecution: using testimony from women who said that they were sexually assaulted by Mr. Weinstein, but whose allegations were not part of the trial.

The goal was to use Mr. Weinstein’s so-called prior bad acts to establish that he was a serial sexual predator. But the move backfired. The court ruled that Mr. Weinstein, who had been sentenced to 23 years in prison, had been denied a fair trial because the witnesses had served to “diminish defendant’s character before the jury.”

Now, a group of New York lawmakers wants to change state law to explicitly allow prosecutors to use evidence of prior bad acts in sex crimes cases.

The lawmakers, Michael Gianaris, the Senate deputy majority leader, and Amy Paulin, an assemblywoman, announced the proposed legislation at a news conference on Thursday. The bills would allow evidence of previous sex crimes to be admitted in court to show a defendant’s “propensity to commit that act,” Mr. Gianaris said.

The legislation would go into effect immediately if passed during this session, Mr. Gianaris said, which means it could be applied to Mr. Weinstein’s retrial, which prosecutors said could take place this fall.

In 1994, Congress passed a statute that allowed federal prosecutors to use similar testimony in sexual misconduct cases. Evidence related to past conduct was no longer inadmissible, but it could still be found to be hearsay or prejudicial, according to Stephen Schulhofer, a criminal justice lawyer and professor at N.Y.U. Law School.

Ms. Paulin said that 16 states have adopted the federal rule. California, where Mr. Weinstein was also found guilty of sex crimes and was sentenced to 16 years in prison, is one of those states.

The goal of not permitting testimony or evidence of prior acts, Mr. Schulhofer said, is to keep the jury focused on the case at hand instead of the entire life story of the person being tried. Bringing up a defendant’s past, he said, can cloud the question of guilt with ideas about whether the person is “an unsavory character.”

The pressure to allow evidence of prior bad acts in sex crimes cases in particular reflects the various challenges of trying such cases. Witnesses are often reluctant to come forward, there is a history of ineffective law enforcement and prosecutorial reluctance to bring sex crime charges to trial, and the cases are perceived as difficult to win, Mr. Schulhofer said.

In the Weinstein case, the top court’s ruling was based not on state law, but on over a hundred years of legal precedent — which gives judges some discretion to allow testimony about prior acts. Mr. Gianaris said the bills would “clarify” this issue.

Mr. Gianaris and Ms. Paulin were joined at Thursday’s news conference by leaders of women’s groups and members of the Model Alliance, a New York advocacy group working for better labor protections in the fashion industry.

Two of the women who had testified about Mr. Weinstein’s prior acts during his trial — Ambra Battilana Gutierrez and Tarale Wulff — also gave emotional statements about the court’s decision to overturn Mr. Weinstein’s conviction.

“Feeling that he had not had a fair trial? I never had a trial,” said Ms. Battilana Gutierrez, a model who reported Mr. Weinstein to the police after he attacked her, but said she was pressured into signing a nondisclosure agreement. “Hopefully I can help people now, because that’s all I want to do.”

Sara Ziff, the executive director of the Model Alliance, called the Weinstein decision “a gut punch” and said it was indicative of the criminal justice system’s failure to support survivors of sexual assault.

“This reform, which has already been adopted by California and 15 other states, is common sense,” Ms. Ziff said. “It’s time for New York to catch up.”

But Mr. Schulhofer warned that making convictions easier sets a dangerous precedent. He said the Weinstein case was “exceptional” and “unusual.” For another sex crimes case, he said, the new rules could create an environment where people are unjustly found guilty. He added that while the difficulty of enforcing the law in these cases is a major concern, this is not the way to address it.

“I don’t think this is a good idea, to create this exception,” he said. “It is a recipe for unjustified, wrongful convictions.”



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