“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.