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Harvey Weinstein's defense strategy is wretched

Harvey Weinstein arrives at court for his rape

Harvey Weinstein arrives at court for his rape trial, in New York on Friday. Credit: AP/Richard Drew

Please imagine, for a moment, that you are a juror in a case of alleged burglary. A woman on the witness stand points to the defendant and says he barged into her apartment, shoved her to the ground and, while she begged him to stop, made off with her TV.

Imagine if this was the defense attorney's cross-examination: But what were you wearing that night your TV disappeared? Are you sure you didn't say something that would make the defendant believe you wanted him to take the TV? Hey, didn't you once have a dispute with a landlord?

Now, please replace "burglary" with "rape," and you will have landed directly in the persistent nightmare that was Thursday's Harvey Weinstein trial in New York.

The witness was actress Annabella Sciorra. In late 1993 or early 1994, she alleged, Weinstein dropped her at home after a platonic dinner - she had recently starred in one of his movies - and she was getting ready for bed when he knocked on her door. Once inside, he immediately began removing his shirt, at which point she asked him to leave and tried to run away. Instead, he grabbed her by her white cotton nightgown, held her wrists above her head and raped her. "It was so disgusting," she said, "my body started to shake."

The scenario Sciorra described was harrowing. The ensuing cross-examination, conducted by Weinstein's attorney Donna Rotunno, was monstrous.

It was monstrous in the insidious way reserved only for cross-examinations of rape victims and no other crime victims - a perversion of justice in which the question isn't, "Did it happen?" but rather, "If it happened, why did you let it?"

Why, Rotunno asked Sciorra, had she ever opened the door in a nightgown? Also, hadn't Sciorra consumed alcohol at her earlier dinner with Weinstein? Also, wasn't it true that Sciorra was once sued by a landlord for "major damages" to her apartment?

"Why didn't you try to run out of the apartment?" Rotunno wanted to know. "Did you scratch him?" she asked. "Try to poke him in the eyes?"

"He was too big," Sciorra explained. "It was very fast, and I tried fighting,"

Did Sciorra complain to the condo board, Rotunno asked - seeing as, in Sciorra's version of events, the doorman had buzzed Weinstein up without first alerting her? "Did you ever ask the doorman why he let Mr. Weinstein up?"

No, she hadn't. "I was devastated," Sciorra replied.

Condo board? Let's pause for a moment on that particular question. In what possible universe would we expect a rape victim, in addition to dealing with massive physical and psychological trauma, to whip out her dayplanner and make note of the next condo board meeting, so that she could show up, wait in line behind two people complaining about the busted elevator and the funky smell in the laundry room, and ask that her rape be added to the agenda?

But Rotunno tacked this on to her long implied list of things Sciorra had allegedly done wrong: She hadn't gone to the emergency room. She hadn't told her parents. She hadn't later declined a role in a film that turned out to be produced by Weinstein's company, Miramax. (Sciorra explained that she didn't know Miramax was involved when she was first given the script - not that her willingness to stomach such an association for the sake of her career tells the jury anything about what happened in that apartment.)

Each time Sciorra responded that she hadn't done something, Rotunno pressed on with more questions designed to point to one of two conclusions: Either the rape didn't happen at all, or the rape wasn't actually rape, because, in either case, Sciorra hadn't behaved like a real victim.

And how, exactly, ought a real victim behave?

Here, in Sciorra's own words, is what she did do in the weeks and months following the alleged attack: "I had this wall that was white, and then I began to paint it like a blood-red color with tubes of oil paint. I don't know what I was thinking, but I used to cut myself and put the blood from my hands and fingers into this masterpiece."

Is this - a vivid, metaphorical expulsion of pain - a typical reaction to a sexual assault?

Darned if I know, but I'd wager that it's just as typical as contacting your condo board.

The most heart-wrenching, revealing moment in Thursday's proceedings came when Sciorra explained why she hadn't done another thing Rotunno implied she should have done: called the police.

"I felt confused," Sciorra said. She wasn't even sure she was allowed to classify what had happened to her as rape. "I felt at the time that rape happened in a back alleyway," at the hands of a stranger.

No wonder she felt that way. Because that's the narrative that defense attorneys like Rotunno have spent their careers peddling. "Real" rape is a stranger in a ski mask with a gun. "Real" victims claw and scratch their attackers; they have the presence of mind to lunge for the phone and dial 911; they have the foresight not to open the door to begin with. Their behavior in the aftermath of an emotionally paralyzing assault is thoroughgoing, rational and predictable.

Victims like Sciorra, who says she repressed her pain, or who just tried to move on, or who never quite found a way to make sense of the horror - our legal system still doesn't have a good way to think about those victims.

Does Weinstein deserve a defense? Yes, everyone does. Are some cross-examination questions reasonable? Yes, of course. Trying to pin down an exact date of the attack would be reasonable, for example, in case Weinstein could show that he was out of the country at the time.

But is it reasonable to blame a 110-pound woman in a cotton nightgown for daring to open the door to a man she knew, and then for failing to fight him off when he allegedly raped her, and for then failing to later inform her condo board?

My god, I wish we could be sitting through another kind of trial. My god, I wished he'd just stolen her TV.

Monica Hesse wrote this piece for The Washington Post.