By JOHN F. BANZHAF. Originally published at ValueWalk.
Weinstein Attorney Donna Rotunno Attacked Unfairly for “Victim Blaming”; But Reprehensible Conduct Isn’t Rape, and Questioning Motives is Fair
WASHINGTON, D.C. (February 13, 2020) – Donna Rotunno, the attorney representing Harvey Weinstein in his criminal trial in New York, has been attacked by many for “blaming the victim” over the alleged sexual assaults to which they testified because of her vigorous cross examination, and also because of her answer to an interview question, notes public interest law professor John Banzhaf, who has won more than 100 legal actions protecting the rights of women, and is a leading analyst regarding alleged date rape claims.
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Asked by an reporter whether she herself had ever experienced a sexual assault, Rotunno replied: “I have not . . . because I would never put myself in that position.”
Rotunno On If She Had Never Been Assaulted
Asked as a followup whether she had never been assaulted “because you would never put yourself in the position of being sexually assaulted?” Rotunno replied, “No, I’ve always made choices from college-age on where I never drank too much, I never went home with someone I didn’t know, I just never put myself in any vulnerable circumstance.”
But in many rape trials, judges will provide the jury with mandatory instructions which essentially say that: (1) rape is a charge that is easily made by the victim, (2) rape is a charge that is difficult for the defendant to disprove, and (3) the testimony of the victim requires more careful scrutiny by the jury than the testimony of the other witnesses in the trial.
So when there is no direct evidence of the alleged rape, and especially whether the complainant in fact clearly conveyed her lack of consent at the time, it is entirely appropriate – indeed, probably a professional obligation – for a defense attorney to carefully cross examine complainants’ claims with vigorous cross examination questioning their motives, and the veracity of their testimony, and also by introducing other evidence suggesting that the alleged victims may not have resisted the claimed sexual acts.
The Crime Of Rape And Criminal Sexual Assault
Banzhaf notes that, in New York, the crime of rape in the first degree and the crime of criminal sexual assault each require that the act be perpetrated by “forcible compulsion” – i.e., compelling the victim through the use of physical force of the threat of immediate death, physical injury, or kidnapping – and the evidence of such force in this trial seems to be weak.
Even the lesser charge of rape in the third degree requires the prosecutor to prove, beyond a reasonable doubt, that the complainant made it clear to the defendant that she did not consent, because no one can be expected to read minds.
If the complainants did not make it clear that they did not consent – whether that was because “they needed work,” “they care about their work,” have “ambition to be successful,” a “burning desire to protect their art,” and/or a “willingness to do anything for their work” as a piece in the Washington Post sympathetic to the complainants explained – what the defendant is alleged to have done does not constitute the crime of rape or of criminal sexual assault.
Workplace Harrassment Isn’t Rape?
More broadly, persuading a woman to engage in sex which she finds distasteful or even repugnant in order to advance her career, or even to protect her career from harm by a scorned suitor, may be outrageous and unacceptable, but it does not constitute rape or criminal sexual assault.
Indeed, because existing law then did not cover coercion based upon employment or employment prospects – as the Post author suggests occurred in the charges lodged against Weinstein – the new legal concept of sexual harassment was developed, says Professor Banzhaf.
Rotunno’s statement that she took reasonable precautions to reduce her chances of rape does not necessarily blame victims for the rapes they experienced, any more than saying that one took reasonable precautions to avoid a physical beating blames victims of that serious crime.
For example, many men are careful to avoid drinking too much, going to bars frequented by disreputable people, or making statements which might be seen as offensive, in order to avoid being beaten in a fight, fair or otherwise.
If such a serious beating does occur, the criminal conduct of the offenders is to blame, not the lack of sufficient care (if at all) by the victim.
“They Asked For It” Isn’t Rotunno’s Fault
While suggesting – through defense evidence as well as vigorous cross examination – that the complainants may have gone along with the alleged sexual acts to further or protect their careers might possibly cause some jurors to think that “they deserved it” or even that (e.g., by going to a hotel room under certain circumstances) “they asked for it,” that is not necessarily the fault of a defense attorney.
Rather, such evidence is even more likely to convince some jurors that there is reasonable doubt about whether the alleged sexual actions occurred as a result of forcible compulsion, and/or that the complainants made very clear their lack of any consent at the time, says Banzhaf.
Defense attorneys have a professional obligation to use all courtroom tactics which are not illegal to undercut the evidence presented by the prosecution, especially where, as here, the defendant has been the object of widespread unfavorable publicity strongly suggesting that he is a serial sexual predator who have criminally violated dozens of innocent women, argues Banzhaf.
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