Assembly has reservations about the Harvey Weinstein bill

The so-called Harvey Weinstein bill, passed by the state Senate and under consideration in the Assembly, is drawing concerns from lawmakers in the lower chamber. Assembly members, especially those with legal backgrounds, think the legislation’s language covers too wide a scope and could easily lead to litigation against the state. Securing passage in the Assembly appears to be in jeopardy unless lawmakers can agree on tweaks in the final days of the session. 

Sponsored by state Senate Deputy Majority Leader Michael Gianaris and Assembly Member Amy Paulin, the bill would allow past sexual offenses to be used as evidence in criminal trials. It was introduced after disgraced movie mogul Harvey Weinstein’s 2020 rape conviction was thrown out by the state Court of Appeals in April. The court found that the judge in the case improperly allowed witnesses to testify about allegations not part of the case.

Gianaris ushered it through the state Senate, but the Assembly is a different story. Bill text saying that evidence can be used to prove defendants “had a propensity to engage in similar wrongful acts,” has some Assembly lawmakers saying that the bill could end up unnecessarily impacting minority communities while also lacking necessary qualifiers.

“You can't say once a rapist, always a rapist, that is a pretty fundamental tenet of our justice system and it’s far beyond what the federal law does that this is designed to emulate,” Assembly Member Jen Lunsford said.

Lunsford is also an attorney and said that the solution would be to add language mirroring another federal law that outlines what evidence from past offenses can be used and when.

Otherwise, she said the issue is “fatal” for her and she doesn’t understand why the state Senate added the “propensity” line. “That is an enormous issue,” she said. “I’ve gotten calls from our public defender. I’ve gotten calls from other advocacy groups.”

The Legal Aid Society objected when the bill made it through the state Senate and is calling for the Assembly to deliberate it further.

“If passed by the full Legislature and enacted into law, New Yorkers would lose a key protection to defend against wrongful convictions and unjust incarceration, with communities of color inevitably shouldering the consequences,” said Legal Aid Society Criminal Defense Practice Policy Director Amanda Jack in a statement Wednesday. “This rush to legislate in the wake of a notorious case must be stopped.”

Gianaris said the state Senate added the “propensity” language to improve on existing law, which he said doesn’t work based on the outcome of the Weinstein case.

“Opening it up for propensity is part of the point, but if (the Assembly has) a better idea on how to achieve that, we’re open to conversation,” Gianaris said.

He added that he “obviously doesn’t believe” the bill’s language could harm communities of color. Neither did Paulin, but she did say she is open to changing the language after several members objected in conference earlier this week, even if the target of the bill was purposefully limited in her eyes.

“Most rapists that are serial rapists – which is what we’re talking about here because multiple victims – are privileged white men,” Paulin said. “So I don’t really see how that argument holds.”

Her understanding is that an amended version of the bill could make it to the floor if enough members get behind it, and soon. “Most members are telling me they’re telling leadership ‘yes,’ but I’ll find out when I find out,” Paulin said.

The alternative, according to her, is a drop in New York’s sex crime prosecutions in the wake of the Weinstein case, so she is hoping for a compromise.

“I’m crossing my fingers and my toes,” Paulin said.