Unethical (And Stupid) Quote Of The Month: Harvey Weinstein Defense Attorney Benjamin Brafman

“Mr. Weinstein did not invent the casting couch in Hollywood”

—–Benjamin Brafman, Harvey Weinstein’s defense counsel, as Weinstein surrendered to authorities yesterday in Manhattan.

The whole quote, as Brafman addressed reporters:  “My job is not to defend behavior. My job is to defend something that is criminal behavior. Mr. Weinstein did not invent the casting couch in Hollywood. To the extent that there’s bad behavior in that industry, that is not what this is about. Bad behavior is not on trial in this case.”

Good luck with this boob, Harvey. To begin with, his job isn’t to defend any kind of behavior; his job is to defend his client.  The way the English language works is that “defending” criminal behavior means arguing that criminal behavior is just fine, thank you. Defending against charges of criminal behavior, in contrast, means that a lawyer is making a case that there was none. If a lawyer can’t speak with more care and precision than this, when addressing reporters he shouldn’t say anything at all.. He essentially just admitted that his client committed criminal behavior and bad behavior, while also leaving doubt as to whether he understood that criminal behavior was also bad.

That’s just the stupid and incompetent part of the statement. The stupid and unethical part, the Unethical Quote of the Month, is an invitation to play, “Name that rationalization!” What difference does it make whether or not Harvey invented the practice of using power over young women’s careers and aspiration to extort them into being their sex toys? Have you ever heard of a defense attorney arguing to jury, “Come on! My client didn’t invent serial killing! What’s everyone so upset about?”  This is a blatant “Everybody does it” excuse, and an especially offensive one. Weinstein’s lawyer just made his first impression on te public—you never get a second chance to make one, you know—and he presented himself as a man who shrugs off coerced sexual submissiveness in the workplace as just one of those quirky Tinseltown traditions.

There are several more rationalizations packed into the lawyer’s fatuous line; see how many you can find in the list. Here’s one more to get you started: #39. The Pioneer’s Lament, or “Why should I be the first?”

Bumbling public relations practitioner and poor ethics student that he is, Brafman has an excellent chance of  getting Harvey off. His disgusting client is unquestionably a heinous sexual harasser, but sexual harassment, even the quid pro quo variety, is not a crime. Nor are there routine  features in Weinstein’s conduct that obliterate claims of consent, as with Bill Cosby’s use of drugs to incapacitate his prey. In “she said/he said” disputes, especially those involving conduct several years old, guilt beyond a reasonable doubt is a daunting standard.  In a criminal trial, “everybody does it” will be weaponized against the victims. How could any aspiring movie actress not know that she would have to deal with the “casting couch’? Isn’t entering that culture voluntarily already half-way to consent? What did these women think was going to happen? This wasn’t naive young starlets meeting with lovable, trustworthy, fatherly and funny Bill Cosby and unwittingly stepping into the lair of a predator. Weinstein was a producer—like Harry Cohn, Darrell F. Zanuck, Louis B. Mayer,  David O.Selnick, and the rest of those powerful, career-making and breaking moguls who used their positions to bed the most beautiful women in the world. These women went to his hotel suites expecting to play Scrabble? Right.

#MeToo or not, if his lawyer is better at criminal defense than he is at rhetoric and ethics, my bet is that Harvey, that scum,  walks.

7 Comments

Filed under Arts & Entertainment, Ethics Dunces, Ethics Quotes, Ethics Train Wrecks, Law & Law Enforcement, Professions

7 responses to “Unethical (And Stupid) Quote Of The Month: Harvey Weinstein Defense Attorney Benjamin Brafman

  1. Emily

    While I agree that is a very poorly worded statement, I feel like what he was attempting to say was not “everybody does it” (which does seem to be what he said) but rather “this is not about everybody who has done it, this is about my client’s specific case.”

    To use your serial killer example, say someone was on trial who had every stereotypical serial killer behavior and the evidence doesn’t look good. It would be stupid to argue that he should get off because there are other serial killers, but important for his attorney to remind people that this is not the trial of every serial killer ever or a referendum on the behaviors linked to serial killing, it’s the trial of his client for actual murders. Which is something the press is notoriously good at ignoring.

    That said, it helps to have a lawyer who can communicate in English without an interpreter.

  2. A.M. Golden

    “Isn’t entering that culture voluntarily already half-way to consent? What did these women think was going to happen? This wasn’t naive young starlets meeting with lovable, trustworthy, fatherly and funny Bill Cosby and unwittingly stepping into the lair of a predator. Weinstein was a producer—like Harry Cohn, Darrell F. Zanuck, Louis B. Mayer, David O.Selnick, and the rest of those powerful, career-making and breaking moguls who used their positions to bed the most beautiful women in the world. These women went to his hotel suites expecting to play Scrabble? Right.”

    This statement strikes me as close to Rationalization #36: Victim Blindness. Of course, actresses know that the casting couch exists in Hollywood, but Weinstein’s position as a producer shouldn’t make him any more or less suspicious than kindly Dr. Huxtable. In both cases, victims ended up in hotel rooms, rather than sticking with offices or public places. Are Cosby’s victims less responsible for their safety for going to his room than Weinstein’s victims were for going to his, given that Cosby drugged his prey while Weinstein just flat out propositioned them?

    Stipulated, yes: Cosby’s actions were criminal, Weinstein’s probably not so much. Also stipulated: actresses often experience sexual harassment and should be aware of the casting couch trope. But the question here is: how responsible are women for their own safety? Should they have refused to go up to Weinstein’s room, even under the pretext of more privacy to practice lines or audition? Should they have refused to go alone, insisting that an agent or someone else be there? (We’re almost getting into Mike Pence territory here – refusing to be alone with someone of the opposite sex. Yet, it is certainly true that some women do make false allegations and the media is only too happy to publicize anything they believe points to conservative hypocrisy) It is true, after all, that these private meetings make it easy to be victimized or, at the very least, make it hard to establish who is telling the truth. Being particular about where these business meetings take place could harm a woman’s acting career even more than being excluded from a business trip because a male employer doesn’t want to set himself up to be falsely accused.

    I’m not sure I have the answer to this, beyond making sure every actress plans ahead of time what she will do if propositioned by someone who can hurt her career and what her response will be.

    • You are making a key mistake: I’m describing a potential criminal defense to rape, for which genuine consent is a complete defense. Rationalizations are false justifications/excuses for ethical misconduct. #36 doesn’t excuse the harassment, but it may well make it hard to prove harassment or sexual assault beyond a reasonable doubt. Blaming the victim is a viable criminal defense. It’s not an ethical defense to misconduct.

    • “Should they have refused to go up to Weinstein’s room, even under the pretext of more privacy to practice lines or audition? Should they have refused to go alone, insisting that an agent or someone else be there?”

      Honestly, I would say the answer is “yes” to both questions. I can see how that would potentially harm a woman’s showbiz career, but I believe a certain level of caution is called for from now on. I think it would be better in the long run to have to work a little harder to find honest people to work with than sacrifice your virtue, IMHO.

  3. Jeff

    I wonder if Weinstein’s defense will include references to all of the people who, in the aftermath of the Ronan Farrow story, came out of the woodwork to offer some variation on “everyone knew Harvey was a creep”. Would it be a plausible defense strategy to point to those stories and say, “See, everyone knew what the score was with my client. He was a creep who demanded sexual favors from young starlets. This was common knowledge, so certainly my client’s accusers had heard the stories, and still chose to come up to his hotel room alone. They knew the score.”? Of course, that’s a gross, unethical defense, but Weinstein is a gross, unethical person, and it looks like at least one of his lawyers is, too.

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