Any doubt, or juror nullification, could undercut #MeToo

Juror Nullification Due Process Revolutionsurdumihail / Pixabay

Rogue Juror Could Derail Weinstein Trial; Any Doubt, or Juror Nullification, Could Undercut #MeToo

WASHINGTON, D.C. (February 18, 2020) – Although most #MeToo supporters are probably hoping if not expecting that Harvey Weinstein will be convicted, and thereby help to vindicate the movement he spawned, two different problems – reasonable doubt and/or juror nullification – could easily frustrate that desire, warns public interest law professor John Banzhaf, who has won more than 100 legal actions protecting the rights of women, and is a leading analyst regarding claims of rape.

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Weinstein Bullied Women Into Sexual Submission

Even if every juror is convinced beyond a reasonable doubt that Weinstein bullied women into sexual submission, pressuring them with the allure of employment opportunities, and even dire threats to harm their careers if they defied him, that does not constitute first degree rape or criminal sexual assault - each of which requires that the act be perpetrated by "forcible compulsion" - i.e., compelling the victim through the use of physical force of the threat of immediate death, physical injury, or kidnapping.

Bullying women into sex may make Weinstein a cad - and perhaps constitute sexual harassment - but it does not constitute a crime, no matter how strong the evidence and how emotionally distressful the events may have been for the women.

Even the lesser charge of rape in the third degree requires the prosecutor to prove, beyond any reasonable doubt, that the complainant made it clear to the defendant that she did not consent, because no one can be expected to read minds.   If the complainants did not make it clear that they did not consent - e.g., because their negations weren't sufficiently strong and might be seen as pro forma initial objections to sex, or that they exaggerated their efforts to avoid sex - what the defendant is alleged to have done does not constitute the crime of rape or of criminal sexual assault.

More broadly, persuading a woman to engage in sex which she finds distasteful or even repugnant in order to advance her career, or even to protect her career from harm by a scorned suitor, may be outrageous and unacceptable, but it does not constitute rape or criminal sexual assault. Indeed, it was precisely because existing law then did not cover coercion based upon employment or employment prospects, the new legal concept of sexual harassment was developed, says Professor Banzhaf.

Juror Nullification & The Dilemma Of Consent

While many jurors might believe (or at least want to believe) that the women not only did not consent, but also effectively communicated that lack to consent to Weinstein at the time, a belief that it probably happened, or that it likely happened that way, is not enough, since any reasonable doubt would dictate a "not guilty" (not "innocent") verdict.

The apparently uncontradicted fact that, after the alleged rape, accusers has consensual sexual with him, went to his hotel room, sent very friendly if not flirtatious messages, and even wanted him to meet with mother, might logically raise doubt as to whether what happened really constituted rape or criminal sexual assault, despite the testimony of an alleged expert who tried to explain that these apparently inexplicable things do happen even after a woman had been actually raped.

But it would take only one man or one woman on the jury to have even a small doubt that a person who had been the victim of any serious and violent crime - e.g., not just rape or sexual assault, but even violent physical assault, arson, threat with a deadly weapon, etc. - would continue a long-term close relationship with the alleged felon.  So, notes Banzhaf, even if only one juror has such a doubt, and refuses to vote for a conviction, the result is a mistrial; a result generally seen as favorable to the accused.

The Legal Right Of Juror Nullification

The same result would occur if even one juror exercises his legal right to refuse to vote for a conviction, not because of any doubts, but rather simply because he or she strongly opposes the MeToo movement and its apparent application in this trial.  This is called juror nullification, explains Banzhaf.

He notes that many commentators, both males and females, feel strongly and have said that the #MeToo movement has gone too far, that innocent men have been charged, that some claims have been exaggerated if not fabricated, and that the movement has adversely affected women in the workplace because men are increasingly reluctant to mentor or even to work closely with them.

Moreover, it takes only 1 juror who refuses to go along with the other 11, even if he or she might be convinced of guilt, to cause a mistrial by exercising the legal right of juror nullification; a result which is generally seen as a major victory for the defense.

Interestingly, notes Banzhaf, this tactic of "juror nullification," closely related to the better known "jury nullification," is completely legal, and has been sanctioned by the Supreme Court.

Colorado Supreme Court Educating People About Jury Nullification

Indeed, just a few months ago, the Colorado Supreme Court held not only that jury nullification was legal in a controversial criminal case, but also that activists supporting jury nullification could distribute leaflets describing and advocating it to people reporting for jury duty at a courthouse.

So while Weinstein's attorneys have poked holes in the prosecution's case, and tried to convince all 12 jurors that he has not been proven guilty - at least by the difficult-to-satisfy standard of not having been proven guilty beyond any reasonable doubt - they probably will also be seeking to convince at least 1 or 2 possibly sympathetic jurors that a conviction, under all the circumstances, would be unfair or unjust, even if the evidence of guilt is overwhelming.

So, concludes Banzhaf, prosecutors will have to guard not only against potential jurors who might be susceptible to unfairness-jury-nullification arguments likely to be made subtlety by defense counsel, but also for stealth jurors (also called "rogue jurors"); persons with an agenda (e.g., opposing #MeToo) who might try to hide it from the court and the attorneys in order to be seated on the jury so they can prevent a unanimous verdict of guilty.

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About the Author

JOHN F. BANZHAF
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D. Professor of Public Interest Law George Washington University Law School, FAMRI Dr. William Cahan Distinguished Professor, Fellow, World Technology Network, Founder, Action on Smoking and Health (ASH) 2000 H Street, NW, Wash, DC 20052, USA (202) 994-7229 // (703) 527-8418 http://banzhaf.net/ jbanzhaf@law.gwu.edu

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