Criminal Justice New York State

After Weinstein Decision, Democrats Push Sexual Assault Measure Biden and Schumer Once Fought

After New York’s top court overturned Harvey Weinstein’s conviction, state lawmakers want to let prosecutors bring evidence from past uncharged sexual assaults.

Julia Rock · May 18, 2024

Joe Biden talking with reporters in 1994

Senator Joe Biden talks with reporters about the crime bill, July 19, 1994. | Kathleen Beall, Library of Congress

Staying Focused

“I am not ‘Mr. Soft on Crime,’” protested Joe Biden on the floor of the US Senate. “But this is crazy.”

It was 1994. Republicans had proposed an amendment to then-Senator Biden’s landmark crime bill to allow prosecutors to present evidence from prior uncharged sex offenses in sexual assault cases. To Biden, it was patently unjust.

“It is absolutely, positively the wrong thing to do,” he said. “It would stand on its head, as they say, 800 years of English jurisprudential thinking on admissible evidence. … It absolutely violates every basic tenet of our system.”

Now, in response to New York’s highest court overturning the conviction of Harvey Weinstein, state lawmakers are trying to bring that amendment, which was included in the crime bill over Biden’s objections and applies to federal courts, into state law.

Proponents of the New York bill, sponsored by Assemblymember Amy Paulin and Senate Deputy Majority Leader Michael Gianaris, say Weinstein’s case shows why it’s needed: The state Court of Appeals overturned his conviction in part because survivors of uncharged alleged assaults had improperly been allowed to testify against Weinstein.

“It’s important for survivors of sexual offenses to have the opportunity to be heard, and the types of cases that we are talking about, more often than for other charges, involve one person’s word against another,” Gianaris told New York Focus. “Therefore, I believe the context of previous allegations is particularly relevant to help a jury determine who they believe in that situation.”

Criminal defense attorneys are strongly opposed, warning, as Biden did in 1994, that the proposal would upend fundamental due process protections.

“Our system of justice is innocent before proven guilty,” Amanda Jack, policy director and defense attorney with the Legal Aid Society, told New York Focus. “So, to guard that, you can’t let in evidence that would essentially say, ‘This person did it in the past, so they’ve done it again.’”

In New York, the rules governing what type of evidence can be introduced during a trial is largely a matter of case law, not statute.

Judges employ the so-called Molineux Rule to determine whether to admit evidence from past uncharged crimes. The rule comes from a 1901 court case involving a chemist accused of poisoning someone. The state Court of Appeals overturned his murder conviction, ruling that the lower court had improperly allowed evidence from a past alleged murder to prove that Molineux had a propensity to commit crimes.

The decision established a standard that past allegations can be introduced in cases when it helps prove factors like motive and intent, but not simply to establish a defendant’s criminal propensity.

“This is one of the most inadvisable things that we could do if we believe in the criminal law.”

—Then-Rep. Chuck Schumer, 1994

Paulin and Gianaris’s bill would allow courts to accept relevant evidence of past uncharged allegations in sexual assault cases, including to prove a pattern or the defendant’s propensity to commit crimes. (Judges could exclude such evidence if they determined its value to the case was outweighed by the chance it would “create undue prejudice to the defendant.”)

It would adopt the 1994 federal amendment — known as Rule 413 of the Federal Rules of Evidence — into New York state law.

Only nine states have adopted the full rule, according to research from the Legal Aid Society. (The Senate and Assembly bill memos both misstated the number of states that have adopted the rule, citing the figures 47 and 16, respectively. Forty-seven states have adopted the general Federal Rules of Evidence but not Rule 413, and seven states have adopted a version of the rule with stronger protections for defendants, by the Legal Aid Society’s count.)

Nationally, it isn’t just liberals who are queasy with the idea. Earlier this year, the Republican-controlled legislature in South Dakota rejected a similar proposal to adopt Rule 413 into law.

South Dakota Representative Mary Fitzgerald, the bill’s sponsor, told New York Focus the bill failed because her fellow legislators — 90 percent of whom, like Fitzgerald, are Republicans — “felt that in order for the defendant to get a fair trial, these prior acts should not be used in the trial. I agree with the opposite of that.”

It was “a hard political vote to take,” said South Dakota Senator David Wheeler, a Republican who voted against the measure. “We were picking out crimes we thought were particularly heinous and changing the rules for that type of crime so we can make it easier to convict. I don’t think that’s how the rules of a trial should be structured.”

Back in 1994, Biden wasn’t the only prominent Democrat to oppose the amendment.

“This is one of the most inadvisable things that we could do if we believe in the criminal law,” then-Representative Chuck Schumer said on the floor. The measure would represent “turning our system of due process on its head,” he argued, noting that the National Organization of Women’s legal defense fund shared his position.

“As a sexual assault victim, I figured they would blame me. So I never went forward. And I think that’s very common.”

—Assemblymember Amy Paulin

Neither Schumer nor Biden responded to press inquiries. The National Organization of Women NYC hosted a press conference announcing Paulin and Gianaris’s bill, but did not respond to a request for comment.

The New York City Alliance Against Sexual Assault, which advocates for survivors and measures to prevent sexual violence, is backing the bill.

“When the system repeatedly fails to hold perpetrators of sexual assault accountable, especially perpetrators with more economic power, it sends a loud and clear message to survivors: it’s not worth it to come forward,” the group’s executive director, Emily Miles, said in a statement.

Governor Kathy Hochul has said she expects the bill to pass. She has not said whether she would sign it, but she told the New York Post that she wants survivors to “have all the evidence that is necessary to be successful to make sure that we stop people who abuse women.”

Defense attorneys say the legislation will mostly impact those without money and influence.

New York ranks third in the nation for wrongful convictions, notes a joint opposition memo by a dozen criminal defense groups — and sexual assault cases have among the highest rates of exonerations, generally used to measure rates of wrongful convictions. Nationally, Black people are almost eight times as likely as white people to be wrongly convicted of rape.

“This is a knee-jerk reaction to the Harvey Weinstein case,” Jack of the Legal Aid Society said. “They are legislating to that one case. We find that to be really dangerous.”

Asked about defenders’ criticisms, Paulin, the Assembly sponsor, downplayed the bill’s impact, telling New York Focus that prosecutors will only be able to find past accusers in “very, very, very few cases.”

Paulin pointed to her own experience to explain the importance of considering past allegations, even if they were never charged.

“As a sexual assault victim, I figured they would blame me,” Paulin told New York Focus. “So I never went forward. And I think that’s very common.”