Weinstein lawyer and accuser clash over her memory of alleged assault

Harvey Weinstein has pleaded not guilty and denied engaging in any non-consensual sex.

A lawyer for Harvey Weinstein has suggested that the shifts in a massage therapist’s account of an alleged sexual assault by the former film mogul meant she had fabricated details, while she insisted that working through the trauma had drawn out more accurate memories.

Weinstein lawyer Mark Werksman pointed out differences over time in stories she told to police and prosecutors in 2019 and 2020, in her evidence to a grand jury last year, and in her words in the witness box on Wednesday, when she said Weinstein had trapped her in a bathroom, masturbated in front of her and groped her breasts after hiring her for a massage in his Beverly Hills hotel room in 2010.

“Do you think your memory is better now than it was three years ago?” Mr Werksman asked.

“Yes,” she answered.

Lawyer Mark Werksman, representing Harvey Weinstein
Lawyer Mark Werksman, representing Harvey Weinstein (Marcio Jose Sanchez/AP)

At another point she said: “My memory was foggy then, but I remember everything now.”

The woman said discussions about the alleged assault with friends, authorities, a therapist and others had brought clarity and made her face difficult details that she had buried in her memory.

Mr Werksman asked if the conversations represented an effort “to build consensus”.

The woman insisted they did not.

“The more I spoke about it, the more I recalled the trauma that happened to me,” she said.

“I was blocking it out for so long.”

The woman is going by Jane Doe in court. The Associated Press does not typically name people who say they have been sexually abused.

Weinstein is charged with sexual battery by restraint for the incident, one of 11 sexual assault counts involving five women he is charged with at his Los Angeles trial.

He has pleaded not guilty and denied engaging in any non-consensual sex.

Former film producer Harvey Weinstein
Former film producer Harvey Weinstein (Etienne Laurent/Pool Photo via AP)

Weinstein is already serving a 23-year sentence for a conviction in New York.

Mr Werksman especially dwelt on whether Weinstein touched the woman over or under her clothes, suggesting her story suspiciously shifted over time to include the skin-on-skin contact required by California law for sexual battery.

“You didn’t change your story from ‘it didn’t happen at all’, to ‘I’m 95% sure’ to ‘I’m 100% sure’ so that they could criminally prosecute Mr Weinstein?” Mr Werksman asked.

“No,” she said.

“Your story is like the US economy, 8% inflation, isn’t it?” Mr Werksman said, though the judge rejected the question after an objection.

The complainant gave evidence on Wednesday that she had been embarrassed and humiliated that she had allowed herself to be alone with Weinstein several times more, including two more massages where she said he engaged in similar unwanted sexual behaviour.

The defence raised the matter during cross-examination.

“He calls for another massage, and you say ‘buzz off creep’ and hang up, right?” Mr Werksman asked.

“No,” the woman said.

“No,” Mr Werksman replied, “you schedule another massage.”

During the first massage, Weinstein and the woman discussed her writing a book about her techniques for the publishing arm of his film company Miramax.

Mr Werksman suggested that the woman had done a consensual sexual favour for Weinstein to better her chances of being published.

“You pursued a book deal because that was your end of a bargain for having sexual relations with Mr Weinstein, correct?” he asked.

“Incorrect,” she said.

The woman said the book had been Weinstein’s idea, and while she was intrigued and took part in several months of emails with his employees, the decision to drop it was mutual.