Brace yourselves. Weinstein could wind up walking

The trial of noted pervert Harvey Weinstein is drawing to a close and, from the beginning, I thought we all knew how it would end. The guy is guilty as hell, right? He’ll probably spend the rest of his life in jail. Well… not so fast. Miranda Devine at the New York Post brings up a disturbing possibility. Trials are always unpredictable and in a case like this, most of the alleged crimes are so old that there was essentially no physical evidence available. Everything the prosecutors had to bring to the jury was based entirely on witness/victim testimony. Devine suggests that the case may just be too weak to result in a guilty verdict and Weinstein could still walk free.

The trial of Harvey Weinstein has provided ample evidence that he is a grotesque pig lacking empathy for the many women he preyed upon, but probably not enough to prove he should be convicted as a rapist.

Prepare for an acquittal or a deadlock after the jury goes out Tuesday, because anyone who has sat through the trial can see the prosecution has struggled to prove its case.

If Weinstein does walk, it will be a tragedy for his accusers, who at the very least were degraded by their association with him and have suffered brutal courtroom cross-examination.

Devine goes on to say that if Weinstein isn’t convicted it would serve as a “well-overdue check on the power of the #MeToo movement.” I’ll get back to that in a moment, but first it’s worth pointing out that we may be about to witness one of the simultaneously crucial and frustrating aspects of our legal system. What the prosecution has proven beyond a shadow of a doubt is that Weinstein did indeed spend most of his career behaving like a disgusting pig who used people like his personal playthings and assumed that his fame and power left him untouchable and unaccountable for his actions.

What they may not have proven – and his defense team did a blistering job of creating doubt – is that any of his actions rose to the level of rape as defined in our statutes. Several of the witnesses confirmed that some of the women accusing Weinstein of various levels of sexual assault failed to report it at the moment and even continued to associate with him after the fact. Some even made light of the encounters, allowing the defense to claim that this showed they might have given some form of consent to further their careers even if they were disgusted by him.

If at least some members of the jury are swayed by that argument, the reality is that they will have no choice but to support acquittal. That’s just how the system is designed. No matter how much we may think we “know” Weinstein is guilty, the people still have to be able to prove it beyond a reasonable doubt to a jury of his peers.

Going back to Devine’s assertion about the #MeToo movement, this is something I’ve been expressing concerns about from the beginning. On the one hand, this moment allowed many victims of assault and rape to come forward with their stories after years of feeling that they had no voice in this debate. And many men who were clearly guilty of terrible things were held to account, at least in the court of public opinion.

But at the same time, the #MeToo movement pushed forward a theme best summed up by the meme of believe all women. And the reality is that not all women (nor all men, obviously) can always be reliably believed. Some people, either maliciously or through simple misinterpretation, will occasionally get the story wrong. But in this environment, we created a new standard of guilty until proven innocent, and that’s now how the framers intended our legal system to operate.

The sad fact is that my perception of Harvey Weinstein’s grotesque behavior doesn’t matter here. If he walks free, the system will have worked as intended whether we like it or not. I think, in this regard, Miranda Devine has hit the nail on the head here.