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Harvey Weinstein Criminal Lawyer Previews Defense Strategy: Police Misconduct and "Non-Victim" Actresses

The Hollywood Reporter—Matthew Belloni
At a NY Bar Association panel behind closed doors, Ben Brafman addresses Gwyneth Paltrow and Rose McGowan ("quintessential non-victims"), the Brett Kavanaugh hearings ("an embarrassment to watch") and a #MeToo movement he says could undo progress for women.

Harvey Weinstein criminal lawyer Ben Brafman offered a candid and detailed preview Thursday of his defense strategy, accusing law enforcement of grave misconduct during the investigation and arguing the former mogul charged with sexual assault has become a scapegoat for an entertainment industry “defined by sex.”

Speaking on a panel behind closed doors in front of a small group of New York lawyers, Brafman railed against what he called the excesses of the #MeToo movement, telling attendees that it could be “very dangerous in a democracy” to “criminalize stuff that isn’t criminal” and that the “movement has a danger of… undoing some of the progress” made by women in the struggle against workplace harassment and discrimination. He touched on the Brett Kavanaugh confirmation hearings — which he labeled a “circus” — and drew parallels to what he deemed to be the rush to judge Weinstein in the media. He also lashed out at actress accusers Gwyneth Paltrow and Rose McGowan as “quintessential non-victims.”

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Brafman, sounding like he was speaking to a jury rather than a collection of about 30 Manhattan attorneys gathered to hear about the legal fallout of #MeToo, struck an alarmist tone about the stakes in the Weinstein case. His comments suggest the Weinstein trial could become a highly politicized referendum on the proliferation of misconduct allegations against powerful men in media and elsewhere.         

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Weinstein is charged in New York with several counts of sexual assault against production assistant Mimi Haleyi and an unnamed second accuser. Earlier this month, Brafman succeeded in knocking out a criminal charge related to the alleged rape of a third woman, Lucia Evans, after prosecutors acknowledged that the lead detective in the case had failed to disclose exculpatory evidence. A friend of Evans had told investigators that Evans had given a different account of the incident in question.

Although several other women (including McGowan) have accused Weinstein of rape, and dozens of others (including Paltrow) have alleged harassment, those acts aren’t the subjects of the criminal charges. Nevertheless, an open question in the case is whether these other accusers will be allowed to testify against Weinstein. If so, as happened in the sexual assault case against Bill Cosby, they could bolster the credibility of Haleyi, who says Weinstein forcibly performed oral sex on her in 2006 inside his SoHo home, and the other woman, whose relationship with Weinstein the defense team has argued was long-lasting and consensual.

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In his talk, Brafman also targeted Paltrow and McGowan, resulting in a seething eye roll from one panelist, Kalpana Kotagal, the attorney who co-authored the “Inclusion Rider” that several Hollywood companies have adopted. (Other panelists at the event, sponsored by the New York State Bar Association’s Entertainment Arts & Sports section and held at the offices of the Arent Fox law firm, included sports specialist Jennifer O’Sullivan and employment litigator Greg Chiarello, who would later take the mic from Brafman to express concerns about what Brafman had said.)

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The audience of attorneys at the panel was respectful but seemed highly skeptical of Brafman’s claims.

Chiarello discussed how a benefit of the #MeToo movement was that it allowed other women to identify with accusers and come forward with their own stories. He defended Paltrow as not seeking anything but merely sharing something that she saw as consistent with other accounts of Weinstein's behavior. He said Brafman was missing the point and said there needed to be accountability for inappropriate behavior. "To focus on what is criminal is counterproductive to the #metoo movement and creates a standard that if it doesn't rise to criminal, we shouldn't care about it," he added.

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