Harvey Weinstein’s rape conviction upheld by appeal court in US

The ruling by a five-judge panel in the state’s intermediate appeals court affirmed the milestone verdict in America’s reckoning with sexual misconduct by powerful figures – an era that began with a flood of allegations against Weinstein.

Weinstein’s publicist, Juda Engelmayer, said he is reviewing his options and will seek to appeal against the decision to the state’s highest court, the Court of Appeals.

“We are disappointed, but not surprised,” Mr Engelmayer said.

Weinstein, 70, was convicted in New York in February 2020 of a criminal sex act on a TV and film production assistant in 2006 and raping an aspiring actress in 2013.

He was acquitted of rape and predatory sexual assault stemming from actress Annabella Sciorra’s allegations about an encounter in the mid-1990s. Sciorra has spoken publicly about her allegations.

Weinstein is jailed in California, where he was extradited last year and is awaiting trial on charges he assaulted five women in Los Angeles and Beverly Hills from 2004 to 2013.

In a 45-page ruling, the appellate court said trial Judge James Burke properly exercised his discretion in allowing prosecutors to bolster their case with testimony from three women who accused Weinstein of violating them but whose claims did not lead to charges in the New York case.

The judges said that although the volume of material, pertaining to 28 alleged acts over 30 years, was “unquestionably large, and, at first blush, perhaps appears to be troublingly so”, Judge Burke properly exercised his discretion in weighing its relevance to the case.

The judges had been far more critical during oral arguments in December, questioning a number of Judge Burke’s rulings, including one that cleared the way for prosecutors to confront Weinstein with evidence about other, unrelated misbehaviour if he had testified.

The judges, echoing concerns from Weinstein’s lawyers, said at the time that the ruling had effectively muted his defence.

On Thursday, the panel also rejected Weinstein’s argument that Judge Burke was wrong in other ways: by allowing a woman who had written a novel involving predatory older men to remain on the jury, and by letting prosecutors have an expert on victim behaviour and rape myths testify. Judge Burke did not allow testimony on similar subjects from defence experts.

Weinstein’s conviction, heralded by activists and advocates as a milestone achievement, was dissected just as quickly by defence lawyers seeking to spring him from what could be the rest of his life behind bars.

Rules on calling additional witnesses to testify about “prior bad acts” vary by state and were an issue in Bill Cosby’s successful appeal against his sexual assault conviction in Pennsylvania.

New York’s rules, shaped by a decision in a 1901 poisoning case, are among the more restrictive.

At the December appeals court hearing, Weinstein’s lawyers argued the extra testimony went beyond what is normally allowed – detailing motive, opportunity, intent or a common scheme or plan – and essentially put the ex-studio boss on trial for crimes he was not charged with and had not had an opportunity to defend himself against.

Judge Burke’s ruling, which allowed prosecutors to use stories from Weinstein’s past to attack his credibility, worked to prevent him from taking the witness stand, Weinstein lawyer Barry Kamins told the appellate panel at the December hearing.

“The jury was overwhelmed by such prejudicial, bad evidence,” Mr Kamins argued. “This was a trial of Harvey Weinstein’s character. The people were making him out to be a bad person.”