NEW YORK (AP) — An accuser will be allowed to use the word “force” in her testimony at Harvey Weinstein’s retrial even though the disgraced movie mogul was acquitted of a rape charge that alleged he used physical force against her, a judge ruled Wednesday.
Manhattan Judge Curtis Farber reversed his earlier decision to forbid the one-time aspiring actor from telling jurors that Weinstein used force against her, explaining that after a review of case law he decided it would be unreasonable to put limits on how she describes what she says happened.
“She will not be precluded from using the term force or describing the use of force,” Farber said at the last pretrial hearing before jury selection is set to begin next Tuesday.
The woman is one of three accusers whose allegations form the basis of the charges in Weinstein’s retrial in state court in Manhattan.
Weinstein has denied that he raped or sexually assaulted anyone.
Weinstein’s lawyers argued that letting the woman testify that he used physical force during the encounter at a Manhattan hotel would open the door to telling jurors that Weinstein was acquitted at his 2020 trial of first-degree rape, a charge that says “forcible compulsion” was used. It was the most serious charge related to her allegations.
But Farber said that isn’t necessarily the case. He said Weinstein’s lawyers are free to challenge the woman’s version of events on cross examination and he suggested that they could add a jury instruction to clear up any confusion.
The Manhattan district attorney’s office has wanted to prevent jurors from hearing any mention of Weinstein’s acquittals and vacated conviction.
Weinstein, 73, is being retried on a sex crime charge as well as third-degree rape, which involves a lack of consent but not “forcible compulsion.” Authorities said he forcibly performed oral sex on a TV and film production assistant in 2006, and raped an aspiring actor in 2013.
Weinstein is also being tried on an additional charge based on an allegation from a woman whose rape allegation was added to the case last year. That charge, filed last September, alleges he forced oral sex on a different woman at a Manhattan hotel in 2006.
New York’s Court of Appeals threw out Weinstein’s conviction last year, setting the stage for his retrial. His acquittals, on the first-degree rape charge and two counts of predatory sexual assault, still stand.
The trial’s start time was thrown into doubt Wednesday as Weinstein’s lawyers and prosecutors wrangled over notes that an assistant district attorney on the case took during a 2020 interview with the accuser who was not part of the first case.
Weinstein’s lawyers said they may seek to call the notetaking assistant district attorney as a witness, disqualifying her from working on the case, as they seek to undermine the accuser’s credibility. The defense contends the woman’s grand jury testimony last year about Weinstein using physical force on her was inconsistent with what she said in the 2020 interview.
Prosecutors said they would seek to delay the trial by 60 days if they can’t reach an agreement with Weinstein’s lawyers on the note dispute.
The woman whom Farber said can say “force” in her upcoming testimony broke down in tears when she testified at Weinstein’s 2020 trial, prompting the judge to halt proceedings for the day.
The woman alleged the studio boss trapped her in a New York hotel room in March 2013, angrily ordered her to undress as he loomed over her, and then raped her. She alleges Weinstein raped her again eight months later at a Beverly Hills hotel, where she worked as a hairdresser.
“I want the jury to know that he is my rapist,” the woman told jurors in 2020.
In vacating Weinstein’s conviction, the state Court of Appeals ruled that the trial judge, James M. Burke, unfairly allowed testimony against him based on allegations from other women that were not part of the case. Burke is no longer on the bench and such testimony won’t be part of the retrial.
Weinstein was convicted in Los Angeles in 2022 of another rape. His 16-year prison sentence in that case still stands, but his lawyers appealed in June, arguing he did not get a fair trial.
Farber ruled Wednesday that if Weinstein were to testify at his retrial, prosecutors can ask him if he has a felony conviction in California, but not the nature of the crimes or underlying facts.
Michael R. Sisak, The Associated Press
