Harvey Weinstein Wants Appeals Court to Define a "Commercial Sex Act"

A ruling two weeks ago by a New York judge could be consequential.
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Harvey Weinstein

In the year since allegations surfaced against Harvey Weinstein, the movie mogul has denied perpetrating nonconsensual sexual acts. At worst, he cops to using his position of power to score sexual favors. As his attorney Benjamin Brafman famously put it, "Mr. Weinstein did not invent the casting couch in Hollywood."

On Aug. 14, however, a federal judge may have punctured any notion of the legality of the so-called "casting couch" in a first-of-its-kind decision. U.S. District Court Judge Robert Sweet ruled that Weinstein must face a federal claim of sex trafficking in a lawsuit brought by Kadian Noble, who accuses Weinstein of unwanted sexual conduct after promising the aspiring actress work.

Weinstein is now asking Sweet to certify an immediate appeal to take up the issue of what qualifies as a "commercial sex act" under the Justice for Victims of Trafficking Act of 2015. Weinstein hopes he'll be given permission for such an appeal so as to limit the potential fallout from Sweet's opinion.

Yes, rape is illegal as is sexual assault. But there are reasons (jurisdiction, statute of limitations, specific facts, damages, etc.) that a plaintiff like Noble would assert a seemingly exotic claim like sex trafficking in court. Now others are following her lead. For instance, just last week another aspiring actress claimed sex trafficking in a new lawsuit against Weinstein. And in the bid for an interlocutory appeal, Weinstein's lawyers express their expectation that some of the other women currently suing him may seek to add a sex trafficking claim based on Noble's success.

Under the relevant trafficking statute, a commercial sex act must be shown. But what exactly does that mean? If a commercial sex act is defined as something of value in exchange for sex — a quid pro quo — does the possibility of a film role represent value?

In his decision, Sweet acknowledged navigating "unchartered waters" on this issue and even paused a moment to consider —if quickly reject — Weinstein's hypothetical about an individual who treats a person to a free dinner, promises future gifts, and then attempts to engage in activity which he construes as consensual sexual activity. 

Is that sex trafficking?

"Notably absent from this hypothetical are the necessary elements of force, fraud, and commerce, all of which have been established here," responded Sweet.

The judge added, "The contention... that Noble was given nothing of value — that the expectation of a film role, of a modeling meeting, of 'his people' being 'in touch with her' had no value — does not reflect modern reality. Even if the prospect of a film role, of a modeling meeting, and of a continued professional relationship with [The Weinstein Co.] were not 'things of value' sufficient to satisfy commercial aspect of the sex act definition, Noble's reasonable expectation of receiving those things in the future, based on Harvey's repeated representations that she would, is sufficient."

Weinstein insists the judge has it wrong.

"[T]here must be an economic component to a violation of the Trafficking Statute," write his lawyers. "To hold otherwise is to interpret the Trafficking Statute out of existence because it would be unconstitutional. The Order’s reading of the Trafficking Statute, which holds that no actual exchange of value is required but that a fraudulent 'promise' satisfies the commercial component of the Statute, and which conflates the 'fraud' and 'value' elements of the claim, essentially makes every sex crime a violation of the Trafficking Statute. Without a true economic component required, every alleged forcible sexual assault in which the victim complies with the assault in order to preserve her safety, for example, would give rise to a claim covered by the Trafficking Statute. A victim’s belief that compliance would decrease the likelihood of additional injury would be sufficient to make the attack a 'commercial sex act' under the Order’s interpretation of the Trafficking Statute. But that is not what the Trafficking Statute is intended to cover and, if it were, it would not withstand constitutional scrutiny."

So will sex trafficking become a much bigger deal in courts moving forward — or will sex trafficking be confined to acts such as forced prostitution and child pornography where the victims are sexually exploited for profit?

Weinstein's lawyers tell the judge this is a first impression case where there is a reasonable difference of opinion and presents an important question that may result in a proliferation of cases. Here's the full brief.

If Judge Sweet doesn't certify the appeal, Weinstein's legal team may attempt to get it to the 2nd Circuit anyway.