“The casting couch is not a crime scene.”

These words, uttered last month in court by defense attorney Arthur L. Aidala during Harvey Weinstein’s retrial in New York, should make any thinking person in, and outside, Hollywood scream out loud. I know I did. For so many reasons.

First, and most obvious, is Aidala’s argument that the sexual crimes with which Weinstein has been charged (again in two instances and for the first time in one) were in fact consensual acts, no matter how sketchy the circumstances.

In 2020, Weinstein was found guilty of third-degree rape and criminal sexual assault and sentenced to 23 years in prison; he continually protested his innocence, claiming that the encounters were consensual. Last year, the conviction was overturned by the New York State Court of Appeals, which ruled that he had not received a fair trial due, in part, to the inclusion of testimony from women whose allegations were not part of the case.

Three years later, Weinstein was also found guilty of forcible rape, forcible oral copulation and sexual penetration by a foreign object in Los Angeles and sentenced to 16 years. Weinstein has also maintained his innocence of these charges, and his lawyers almost immediately filed an appeal.

As the retrial enters its second month, Weinstein’s defense team is relying on the “she knew exactly what she was doing” defense that has been leveled against victims of sexual assault for centuries. “She got in the car with him,” “she went to his hotel room/apartment,” “she let him buy her a drink/close the door/kiss her/touch her breasts,” therefore she was consenting to whatever sexual activity he might have in mind. Any subsequent testimony of her refusing consent is merely delayed regret or a malicious ploy for revenge, attention and/or money.

The same defense, it must be noted, is being mounted in another Manhattan courtroom, where Sean “Diddy” Combs faces federal sex trafficking charges. They revolve around a series of events he called “freak-offs,” which, despite allegations of physical and sexual abuse, he claims were strictly consensual.

In any case, it assumes that the alleged assailant’s public interpretation of events is of legal priority.

But here it is even more insidious. Weinstein’s attorney is once again openly acknowledging that his client believed that expecting sex in return for potential career advancement was a perfectly legitimate way of doing business. This argument implies that Weinstein had something these women wanted and he was well within his rights to expect sex in return.

After all, “the casting couch is not a crime scene.”

Is it not? “The casting couch” is a term that has been used to denigrate successful women in Hollywood for a century — how could any woman rise to the top without “offering” favors to the men who invariably ran the industry? Even assuming that those favors were “offered” rather than demanded or forced, it is an image of coercion disguised as quid pro quo. Quid pro quo assumes equality, and equality does not factor into the casting couch, which belongs to the “caster” who controls its use and whatever job opportunity might arise from it.

As Aidala himself said, the women Weinstein allegedly assaulted viewed him as holding the key to their futures. And Weinstein, by his counselor’s own admission, expected to be given access to their bodies in exchange for proximity to that key.

But these particular women have testified, and continue to testify, that on specific occasions, they were unwilling participants in such a transaction. “Offering” had nothing to do with it, they say, neither did consent; they were forced into acts they did not want. According to testimony, some struggled and said no quite directly as he forced himself on them, while others simply froze, as victims of sexual assault often do.

The cynicism of Aidala’s remark, and the defense that rests upon it, should be condemned by every person in a position of power. The #MeToo movement, which arose from the public exposure of Weinstein’s years-long pattern of sexual coercion and crimes, exposed not just a widespread exploitation of power but also the culture of silence and codependency that sustained it, including the myth of the casting couch.

No doubt there are women (and men) who consent to, and even curry, sexual relationships they would not otherwise have in order to further their careers. But the women who came forward during the height of #MeToo, including the Weinstein accusers, made it clear that many encounters were the result of force, coercion and an enforced feeling of powerlessness.

Far too many people, who also depended on the accused for their livelihoods, ignored complaints and obvious signs of distress or simply looked the other way, rationalizing the incidents as the cost of doing business.

Because the casting couch is not a crime scene.

Given the alarming imbalance of power in Hollywood — the fortunes of many rely on a relative few — it is not surprising that those with great success are inevitably surrounded by people seeking opportunity or hoping that some of the magic dust rubs off. Individuals who make a lot of money for other people, whether through their art or their financial acumen, are often forgiven for behavior that, if exhibited by someone more ordinary, would be censured or punished.

The public accusations made against Weinstein, and many others, attempted to revoke that immunity. When Weinstein went to prison, it symbolized a rejection not just of his actions but of the culture that protected them for so long.

The myth of the casting couch as a sexual shortcut for women willing to do whatever it took to get a break was torn to pieces, revealing an instrument of oppression, an assault one was expected to endure in order to work in one’s chosen profession.

Now Weinstein, through his lawyer, is attempting to restore the old, hateful narrative. The women testifying in his retrial are facing (two of them for the second time) deep probing and public excoriation of their private lives as the defense tries to prove they willingly had sex with Weinstein to get work and then accused him to get money.

That Weinstein is, in fact, the victim here.

In October 2017, after the New York Times ran an exposé in which many women accused Weinstein of sexual harassment and assault, Weinstein said, in a statement: “I came of age in the 60’s and 70’s, when all the rules about behavior and workplaces were different. That was the culture then.

I have since learned it’s not an excuse, in the office or out of it. … I appreciate the way I’ve behaved with colleagues in the past has caused a lot of pain, and I sincerely apologize for it. Though I’m trying to do better, I know I have a long way to go. ... I so respect all women and regret what happened.”

After almost eight years in prison, he no longer cares who he hurts, it seems. Not the women testifying as the defense paws through their personal journals and former marriages, not the countless others whose experiences are diminished by his “casting couch” defense and not the industry that has been trying to figure out a way to move forward from an exploitative culture that even Weinstein has publicly condemned.

And now, apparently, believes worked just fine.

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(Mary McNamara is a culture columnist and critic for the Los Angeles Times.)

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