New York lawmakers propose allowing prior bad acts to be admissible in sexual assault proceedings

Citing the recent overturning of Harvey Weinstein’s sex crimes conviction in New York, members of the New York State Assembly are introducing a bill this week that would amend the state’s criminal procedure law to allow evidence of a defendant’s prior sexual assault to be admissible as evidence in a sexual assault proceeding.

The bill is sponsored by assembly member Amy Paulin, a Democrat who represents parts of Westchester County and has openly shared her experience as a rape survivor.

State Sen. Mike Gianaris, a Democrat who represents parts of Queens, is sponsoring the measure in the Senate, and told CNN the bill is “very much” in response to the April 25 New York State Court of Appeals decision that overturned the 2020 conviction of first-degree criminal sexual act and third-degree rape against Hollywood producer Weinstein.

In last month’s 4-3 ruling, the state’s highest court found the Weinstein jury could have been prejudiced against Weinstein because the judge allowed women to testify about allegations that were not a part of the case. Paulin and Gianaris have said they want this type of evidence legally admissible in court.

Gianaris said the legislation will “clarify that previous sexual bad acts by someone who was charged with a sexual offense can in fact be admitted in their trial to show a propensity to commit that act.”

“That’s typically not done. We have obviously a court of appeals decisions that says it should not have been done here… As it relates to any offense, we typically we don’t allow that, but sexual offenses we believe are different,” Gianaris told reporters Thursday.

“Very often those cases rely on the testimony of two people with conflicting accounts. And therefore we think this justifies an exception to show a pattern of behavior or propensity.”

Tarale Wulff, a Weinstein accuser who testified at his trial in New York, said Thursday that sexual survivors who come forward are rarely the only victims of their abusers.

“Their assault isn’t an isolated one and their testimony should not be treated as though it is. When there are multiple victims of sexual assault their voices should be heard together and collectively,” said Wulff, a model and voice actor who spoke at a news conference with other sexual assault victims as well as Paulin and Gianaris.

“I kept my assault secret for 12 years. It wasn’t until 2017, when multiple allegations against my abuser surfaced in the news, that I was able to say out loud: That’s my story. The account of these women’s assaults so closely resembled mine and their bravery ignited my own. It was because of other survivors’ voices that I felt safe enough to share my voice and testify in support of seen and unseen survivors everywhere.”

Emily Tuttle, spokesperson for Manhattan District Attorney Alvin Bragg, said the office embraced the push for legislative change.

“Our mission to center survivors includes working to ensure our laws reflect the reality of sexual assault, while protecting the rights of the accused. We are working hand-in-hand with stakeholders to modernize and clarify New York’s laws pertaining to Molineux evidence so prosecutors around the state can better secure justice for survivors,” said Tuttle, referring to the admission of testimony about criminal acts the defendant has not been charged with committing.

Weinstein’s convictions and downfall – he also was convicted of rape and sexual assault in Los Angeles – remain a symbol of the #MeToo movement. Prosecutors in Manhattan have said they intend to re-try Weinstein in the New York case later this year. Weinstein has maintained his innocence and denied all allegations against him.

Weinstein, who recently was transferred to the Bellevue Hospital Prison Ward and later moved back to Rikers Island, is unlikely to be released while he awaits any retrial, because of his 2023 sentencing to 16 years in prison in the California case. That trial similarly used “prior bad acts” witnesses and has also been appealed.

In a brief court appearance Thursday, meanwhile, Weinstein did not waive his right to extradition to California, according to one of his attorneys.

“They are not in a position to extradite Mr. Weinstein because they have not done what they need to do,” attorney Diana Fabi Samson told reporters, adding that California has yet to produce a warrant signed by the governor. She said California has issued a fugitive warrant and “Mr. Weinstein is not a fugitive.”

Weinstein is scheduled to return to court on August 7.

Victim advocates and survivors, including some who testified at Weinstein’s trial, believe the allowance of evidence of prior bad acts in the case helped rightly establish a pattern of behavior.

Attorney Gloria Allred, who represented a woman whose testimony made up the first-degree criminal sexual act charge, told CNN last week she believes legislation is necessary to help clarify the current law.

“I think it’s important for the New York Legislature to pass a specific statute in New York, which more clearly defines the admission of ‘prior bad acts’ witnesses and their testimony in New York, and is more protective of victims’ rights in sex crimes criminal cases,” Allred said.

Pattern of behavior is a large part of what the bill looks to address.

“When you’re able to bring in evidence that there is a pattern of behavior, you can demonstrate much more clearly that the act was intentional and that the perpetrator was intending to commit the sexual assault,” Paulin said.

But the bill has critics.

While the bill’s introduction is unlikely to have any impact on any retrial for Weinstein, it would create a new set of rules for prosecuting sex crimes, raising serious questions of fairness in criminal proceedings and likely leading to the increased possibility of prejudiced juries, according to Amanda Jack, policy director for the criminal defense practice at The Legal Aid Society.

If the bill is signed into law, “it would create a definite risk of unfair prejudice to the person accused of a crime, create a confusion of the issues for the jury, promote the troubling assumption that defendants have an apparent propensity to commit the crime at trial if they have committed a similar crime in the past, and, in short, will move us so far away from any sense of fairness and due process that it must be rejected as a dangerous undoing of our system of criminal trials,” Jack said.

While New York does not have a statutory code of evidence on the books, most of the state’s evidence rules come from case law as well as a small number of rules in the criminal procedure code, the lawmakers said.

The bill language specifically mentions the Weinstein case, saying the legislation is “necessary to ensure that victims will be able to rely on this type of evidence in future cases.”

Paulin’s measure is being introduced slightly late in the legislative season, which wraps up in June, giving Paulin and her bill sponsors only about a month to get a critical mass of support and have the measure approved in both chambers before it would be sent to Gov. Kathy Hochul’s desk.

Paulin said she is confident the bill will garner the needed support.

Avi Small, a spokesperson for Hochul, told CNN the governor “will review the legislation if it passes both houses of the Legislature.”

CNN’s Ray Sanchez contributed to this report.

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