The judge overseeing the Harvey Weinstein case has allowed actress Annabella Sciorra to testify that Weinstein raped her 26 years ago.
Justice James Burke issued a series of rulings on pre-trial defense motions on Tuesday, denying almost all of them. Weinstein is set to go on trial on Jan. 6 on five sex crimes charges.
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The defense had sought to throw out two counts of predatory sexual assault, arguing that Sciorra’s allegations are too old to be considered as part of that charge. Sciorra alleges that Weinstein raped her in the winter of 1993-94.
The statute of limitations for rape has expired, but the prosecution wants to include Sciorra’s testimony along with two more recent allegations to show that Weinstein is a repeat sex offender.
The crime of predatory sexual assault was enacted in 2006, and carries a potential life sentence. The defense argued that including an allegation from 13 years prior to the enactment of the statute would violate the Constitution’s prohibition on “ex post facto” laws.
But Burke rejected that argument, finding that there is no ex post facto violation, and denied the motion to dismiss the two counts.
Burke also barred a defense expert from testifying about issues connected to sexual assault.
Weinstein’s defense team asked permission last month to call Deborah Davis, a psychologist at the University of Nevada at Reno who often testifies for the defense. Weinstein’s attorneys wanted Davis to testify about how sexual assault and trauma can lead to false memories.
They also wanted her to tell the jury about “voluntary unwanted sex,” which they described as “sex that is undesired, but that the person chooses to engage in,” and how that can lead to false memories, as well as the issue of consent and misunderstandings about sexual intentions.
In his ruling, Burke allowed Davis to testify about “the general operation of human memory,” including factors that can cause memories to be distorted. But he barred her from discussing sexual assault, “voluntary unwanted sex,” misunderstandings about consent, or other issues related to sex crimes. He found that those issues lacked sufficient consensus in the scientific community to present to the jury.
Burke also denied several other defense requests, including that the court release the identities of two witnesses who are expected to testify against Weinstein. The defense had also sought to suppress evidence obtained from a search of three email accounts and to limit the testimony of the prosecution’s expert witness, Barbara Ziv. Those motions were denied.
Burke did grant a defense request to review the minutes of the grand jury proceedings, and said he would issue a separate ruling on a defense motion to limit other witness testimony.
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