Weinstein's lawyer: He didn't invent the casting couch, you know

Me, an hour ago: Defense attorneys are a noble lot, shielding the lonely accused from the awesome power of a capricious state.

Me after watching this: These mercenary parasites feast on the souls of their clients’ victims and pick their teeth with their bones.

Ben Brafman’s bon mot below about the casting couch isn’t playing well with Big Harv’s national audience this morning, to put it mildly. Why he chose to say it instead of doing a by-the-book “he’s innocent, it was consensual” soundbite, I don’t know. Maybe Brafman’s concluded that Weinstein is utterly beyond simple denials at this point. He knows bad stuff is coming in court; he probably fears that there’s physical evidence of some sort to substantiate sexual contact between Weinstein and the victims. There may also be contemporaneous evidence from the time the incidents occurred that the women thought their encounters with Weinstein were nonconsensual, such as them telling friends and/or doctors about it (as Eric Schneidermann’s victims allegedly did). That’s a formidable fact pattern. Blithe assertions that everything was consensual ain’t gonna hack it, not when there are 100+ other women out there with their own tales of what “consent” means to Harvey Weinstein.

So he’s conceding up front that what Weinstein did was distasteful — just not criminal. He’s going to argue, it seems, that even if the women felt pressure to submit to Weinstein’s sexual demands, that’s *not* rape. For better or for worse, that’s how business is conducted in Hollywood and actors know the risk when they meet with producers. You might safely call the casting couch an example of sexual harassment or even extortion, since a job is being explicitly or implicitly conditioned on sex, but Weinstein hasn’t been charged with those crimes. Prosecutors are going for a jackpot:

According to the criminal complaint revealed Friday, a woman reported Weinstein kept held her in a Lexington Avenue hotel room against her will on March 18, 2013, and raped her. “At the time of the incident, informant had clearly expressed her lack of consent to the act,” the complaint says.

The second accusation in the complaint is nearly a decade older; in that case, a different woman who News 4 reported to be [actress Lucia] Evans told authorities Weinstein grabbed her head and forced her to give him oral sex in a Greenwich Street home on one occasion between June and September of 2004.

Brafman seems to believe that the first woman, the subject of the rape complaint, was also with him for purposes of securing a job and can be spun as a “casting couch” misunderstanding, although that’s not clear here. His argument, surreal but possibly necessary given the evidence against Weinstein, may boil down to this: How much duress is legally permissible before a sexual encounter turns into assault? “Do it or you won’t get the part” still gives the victim the option of leaving. “Do it or you won’t have a career” is more sinister but the option to leave is still there. “Do it or you’ll pay” is more sinister still, and ambiguous. Per the excerpt, the rape accuser claims that Weinstein actually held her “against her will,” which is waaay beyond the transactional nature of the “casting couch” (although will be difficult for the state to prove).

But don’t put it past Weinstein. Remember, the story Annabella Sciorra tells about her own encounter with him had nothing to do with auditions or roles. He drove her home and then, allegedly, barged into her apartment and forced himself on her. More than one actress has claimed to have been on junkets to promote a film only to find an infuriated Weinstein suddenly pounding on their hotel room doors, demanding access. This is not a guy, if his accusers are to be believed, who insisted on the relative niceties of quid pro quo “casting couch” bargains to get sex. To hear them tell it, when Big Harv didn’t get what he wanted by asking, he just took it. Brafman’s defense, he seems to hint here, is going to be that Weinstein is guilty of no more than the “soft coercion” of professional extortion rather than the hard coercion of forcible rape. It’s a PR disaster even if it works, but Weinstein’s a lost cause PR-wise. All he has left is staying out of prison.

He surrendered his passport today, incidentally, in case you’re worried he might pull a Polanski. I’m surprised he didn’t. What incentive does he have to stay and face the charges, knowing that even if he beats the rap here, the Manhattan DA and various other police departments here in the U.S. and in Europe are working on new charges against him? His best-case scenario is spending years in court fighting sexual assault indictments. Even if he’s successful, what a life.