NY needs a new law to prosecute sex crimes

Members of the New York State Assembly have to decide whether they want to bring serial sexual abusers to justice. Unfortunately, many of them are waffling.

In reaction to the mistaken ruling by the state's top court overturning the conviction of Hollywood mogul Harvey Weinstein, the State Senate this week passed a bill that would allow jurors to hear evidence of similar prior behavior by a defendant in sex crime cases. This evidence is used when a defendant tries to refute criminal charges by claiming the sex was consensual.

Myths linger about sex crimes — that they are typically committed by strangers, that weapons usually are involved, and that victims are physically hurt fighting their attackers. In recent years, however, prosecutors have been more willing to take on difficult cases such as when the victim knew their attacker or had a prior or continuing relationship with them. Prosecutors still have to prove for the crime charged that the woman said no, that she refused to consent to the sexual act. In those cases, however, where multiple other women come forward to say they also were victims of the same predatory behavior, jurors should be able to hear their stories.

Before the Weinstein decision, this narrow exception to the rule of evidence had been allowed for more than a century in New York, based on prior court rulings, and for all types of criminal charges. If Weinstein had been tried on federal charges, or in California or several other states whose laws permit such testimony, he would not be getting a second chance at a new trial.

Under New York's proposed law, which only applies to sex crimes, the trial judge must determine whether jurors would benefit from hearing the testimony of other victims — mostly women but not always — who can corroborate the pattern of behavior, even if what happened to them is not one of the crimes charged. There are built-in protections: The judge is required to determine whether this evidence would prejudice the jury against the defendant. And clearly, jurors get it. In Weinstein's New York and California trials, both juries found him guilty of some but not all of the charges.

The Weinstein decision last month already has made New York prosecutors reluctant to press cases when consent is the key issue. Nassau County District Attorney Anne Donnelly said the Weinstein ruling “was a step backward” that will “damage” future prosecutions. She said laws are needed that “are more reflective of the complexities of prosecuting sexual assault cases and that recognize the excessive burden our justice system currently places on survivors and their credibility.” The bill also has the support of Suffolk DA Ray Tierney.

The Weinstein decision rolled back much of the progress made in New York to hold accountable those who use power and control to coerce others sexually. It's time for the Assembly to restore that accountability.