Legal Analysis

Following Harvey Weinstein’s arrest and charges of rape and criminal sexual acts in New York Friday, his high-powered attorney Benjamin Brafman has already offered a glimpse into his possible defense strategy.

"Mr. Weinstein did not invent the casting couch in Hollywood," Brafman told reporters after his client’s arraignment. He added that “bad behavior is not on trial in this case.”

Brafman also told the Times of London that the “casting couch” is not a crime, but rather a “choice.”

“If a woman decides that she needs to have sex a Hollywood producer in order to advance her career and actually does it and finds the whole things offensive, that’s not rape,” he told the newspaper in March.

In the modern digital era, a high-profile defendant is often disadvantaged by negative pretrial publicity long before he gets to offer his version of the story at trial. The traditional, general rule for criminal defense attorneys used to be simple: Don’t talk to the media. Ever.

An unofficial exception to this rule has evolved. Sometimes, with a celebrity or infamous client, a defense attorney can counter a harmful narrative in the media by publicly offering his own narrative.

For defense attorneys, speaking to the media is a calculated decision: Countering the bad publicity with the defense narrative also reveals the defense’s strategy. In the Weinstein case, Brafman may have already offered an early preview of the defense’s battle plan.

Stating that Weinstein “did not invent the casting couch in Hollywood” suggests that the defense strategy might be akin to “everyone else was doing it.” This is usually not a viable defense to a crime, especially when the “it” is an alleged sexually violent offense.

Suggesting the existence of a “casting couch” culture of consensual sexual transactions in far-off Hollywood also might not play with jurors in New York. Many East Coasters already stereotype Los Angeles as the land of entitled movie moguls, sharing few ethical values with the hardworking strap-hangers of the Big Apple.

On the other hand, Manhattan is one of a handful of venues in the country outside of Los Angeles that might also include some folks familiar with the entertainment industry. Even then, that doesn’t mean they won’t reject the “Weinstein didn’t invent it, but he practiced it” defense.

Either way, any attempt to normalize the “casting couch” as a standard, quid pro quo business practice in the film industry could backfire.

Calling the “casting couch” a “choice,” and not a crime, is similarly risky, particularly in the #MeToo era. The “casting couch” trope has never been perceived as a sexual encounter between two people with mutual affection for each other. It’s not an “office romance.” The “casting couch” has always been about an imbalance of power, where some poor ingenue is presented with a Hobson’s Choice: She must have sex with this powerful man if she’s going to make it in this town.

“Bad behavior is not on trial in this case”

This is a tactic by defense attorneys in jury trials. They concede that their client is not perfect, maybe even concede that the client is not a likable guy. But they point out to the jury that just because the client has character flaws does not mean that he committed the serious crime for which he is on trial. This approach banks on the hope that the jury can separate their dislike of the defendant from their duty to mechanically apply the law to the facts in their verdict.

The challenge with a statement like this is that it essentially admits that there was some kind of sexual contact, or “bad behavior.” In any rape or sexual assault case, there are two major defenses: First, it never happened. Second, it happened, but it was consensual.

Conceding that there was “bad behavior” negates the first defense and establishes something the prosecution would otherwise have to prove: sexual contact occurred. Weinstein’s remaining option would be establishing consent in these cases.

In addition, the statement may be perceived as minimizing the alleged rape and forced oral sex as mere “bad behavior.” This might turn off jurors.

Brafman may be just testing the waters with these statements and his strategy may change drastically before trial. Plus, like many defense attorneys, he has some overwhelmingly bad facts to work with, and a client who is perceived by many as a monster and a predator.

Ultimately, Brafman knows that this case, like many sex crimes cases, depends largely on the testimony of the victim at trial, and whether she can withstand the crucible of cross examination. No pretrial statement to the media can change that. That’s where a case like this is won or lost.

Danny Cevallos is an MSNBC legal analyst. Follow @CevallosLaw on Twitter.