Was Harvey Weinstein 'Casting Couch' Defense Wise? Experts Weigh In

Harvey Weinstein's attorney sparked outrage during the disgraced movie mogul's latest rape trial, when he said the charges are the result of actresses rebranding the "transactional sex" they had with him in light of the #MeToo movement.

Weinstein, 70, is standing trial in Los Angeles, where he is charged with 11 counts of rape and sexual assault involving five women. He is serving a 23-year prison sentence for a sexual-assault conviction in New York. If convicted in Los Angeles, he faces up to 140 years in prison.

The film producer's attorney, Mark Werksman, on Monday told jurors that they should be prepared to listen to a "firehose of false and unprovable allegations" from women who had consensual sexual interactions with Weinstein, but were now embarrassed and lying about the truth years later.

Pointing to Weinstein, Werksman said, per Variety: "Look at my client. He's not Brad Pitt or George Clooney. Do you think these beautiful women had sex with him because he's hot? No, it's because he's powerful."

Werksman went on to say that while the culture in Hollywood today has changed, there was a time when "transactional sex" was the norm. Referring to the proverbial Hollywood "casting couch," Werksman added that "sex was a commodity" for "rich and powerful men, like my client."

"Transactional sex... it may have been unpleasant... and now embarrassing. [But] everyone did it. He did it. They did it," the attorney said.

While the statement has sparked a strong reaction online—with Weinstein accuser Rosanna Arquette condemning the remarks—Newsweek has spoken with two experts on whether they believe the "casting couch" defense will prove effective.

Defending the Defense

Forensic psychiatrist Carole Lieberman, M.D., who has served as an expert witness in a number of high-profile trials, told Newsweek that "the 'casting couch' phenomenon has been around as long as the Hollywood sign.

"It is absolutely true that many actresses—from the soon-forgotten ones to the big stars—have gotten their start on such a couch. But none of them wants to admit it.

"Some producers or directors, who hold the power to turn an unknown into a star, exert more manipulation than others," Lieberman said. "But there is no question that there have been as many starlets using men, like Harvey Weinstein, as there have been Harvey Weinsteins using them.

"Harvey was a cute kid, but it's unlikely he got by on his looks as he got older and wanted to date. He had to put his charm on overdrive.

"So, as he became more successful in Hollywood, it was only natural that he would use his power to attract women," Lieberman said. "But, surely some—if not most—of these women were trying to use him, too, to move up the ladder in their career.

"He wasn't a sex magnet like Brad Pitt or George Clooney. When most women had sex with Harvey, they weren't fantasizing about having kids with him. They were fantasizing about which starring role they were going to ask him for."

Echoing Werksman's statement, Lieberman said that "when #MeToo came around, it attracted some women like moths to a flame. They wanted to get into the act, literally. All of a sudden, they had an opportunity to rewrite history—their earlier trysts suddenly became 'rape' in their memories.

"Sometimes, it may have been rape. Other times, it's a way for them to pretend to themselves that they didn't want it, and didn't need it to climb the ladder—so they can keep up the illusion that they got there by their own talent," said Lieberman.

"Each woman's case needs to be evaluated on its own by plumbing their history, psyche and where they were in their career when they met Harvey. Many of these women are hypocrites and need to be exposed, so that others won't come forward with lies so easily.

"As a forensic psychiatrist/expert witness, I have testified at many similar cases, and the key to winning for the alleged rapist is by doing a deep dive into the story and psyche of each accuser."

Disagreeing With the Defense

Seattle-based attorney Kirk C. Davis offers a contrasting take, speaking out against the defense and describing the trial as resembling a "slow guilty plea."

"Mark Werksman is a very good attorney, but this defense is not going to work," Davis told Newsweek. "This is a twist on an old defense to assault. When someone is charged with assault, it is a defense that the other person consented to the fight.

"The problem for the defense is that it is clearly not an equal fight here. Suggesting the women were nothing better than common prostitutes is also a common and old defense to a charge of sexual assault," said Davis.

"It has not been working very well recently and is even less likely to work here. This trial is looking like a slow guilty plea."

Desperately Seeking Susan star Arquette, 63, on Tuesday responded to the "disgusting quotes from Weinstein's attorney," in a post shared on Twitter.

"Assault is not transactional sex. Rape is not transactional sex," tweeted Arquette, who starred in the Weinstein-produced movie Pulp Fiction. "And abuse of power is abuse of power. Yes, he's no Clooney. He's scarcely the same species.

"This monster—this 'beast,' as his own attorney calls him—belongs exactly where he is: in a place where he'll never see women again for the rest of his life, let alone have the opportunity to assault and rape them."

The New York Times published an article in October 2017 detailing allegations going back to the 1980s of Weinstein sexually harassing or assaulting actresses, former Weinstein Company employees, and other unnamed victims.

In Arquette's case, she said that she went to Weinstein's hotel room in the early 1990s to pick up a script. The movie producer allegedly opened the door wearing nothing but a bathrobe and asked her to give him a massage, before grabbing her hand and pulling it toward his penis.

Arquette, who has supported other Weinstein accusers but did not give evidence in his New York trial, said that she rebuffed his alleged advances, leading to him derailing her film career in purported retaliation.

"This is a man that is a real predator," she said in January 2020, per U.K. newspaper The Guardian. "He's destroyed many women's lives."

Accusations of Weinstein's sexual abuse became a leading trigger of the #MeToo and Time's Up movements, which sought to end sexual harassment not only in Hollywood but by all people in positions of power.

When contacted by Newsweek, Weinstein's attorney Werksman declined comment.

Specialists from the Rape, Abuse, and Incest National Network (RAINN) sexual assault hotline are available 24/7 via phone (1 (800) 656-4673) and online chat. Additional support from the group is also accessible via the mobile app.