NEW YORK (AP) — A woman who says Harvey Weinstein trapped her in a Manhattan hotel room and raped her in 2013 can use the word “force” when she testifies at his retrial even though the disgraced movie mogul was acquitted of using physical force against her, a judge ruled Wednesday.
Judge Curtis Farber reversed his earlier decision to forbid Jessica Mann 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 the former aspiring actor describes what she says happened.
Mann is one of three accusers whose allegations form the basis of the charges in Weinstein’s trial. Nearly a year ago, New York’s highest court overturned his 2020 convictions. Jury selection is set to begin next Tuesday.
Weinstein may appeal Farber’s ruling, his lawyer, Arthur Aidala, said Wednesday.
Jurors acquitted Weinstein of first-degree rape in Mann’s case, a charge that requires proof of “forcible compulsion,” but convicted him of third-degree rape, which involves a lack of consent. The conviction was overturned, but the acquittal still stands.
“It does fly in the face of common sense that the first trial was all about force and he was found not guilty of force,” Aidala told reporters during a break in a pretrial hearing. “So now, why are they allowed to relitigate that?”
Weinstein has denied that he raped or sexually assaulted anyone.
Weinstein’s lawyers argued that letting Mann testify that he used physical force against her at a Manhattan hotel would open the door to telling jurors about his first-degree rape acquittal.
But Farber said that isn’t necessarily the case. He said Weinstein’s lawyers are free to challenge Mann’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. Authorities said he forcibly performed oral sex on a TV and film production assistant in 2006, and raped Mann in 2013.
Weinstein is also being tried on an additional charge based on a woman whose rape allegation was added to the case last year. That charge, filed last September, alleges he forced oral sex her at a Manhattan hotel in 2006.
At Weinstein’s 2020 trial, Mann 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,” she told jurors in 2020.
The trial’s April 15 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 accusations against Weinstein helped catalyze the #MeToo movement, when many women came forward with sexual harassment allegations involving men in power.
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.
The Associated Press does not generally identify people alleging sexual assault unless they consent to be named, as Mann has done.
