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

“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.