Why Using the Trafficking Act of 2015 Against Harvey Weinstein is a Terrible Idea

Weinstein is a scumbag even if one only takes into account the things he has admitted to — but not only is using the Justice for Victims of Trafficking Act of 2015 against him a bit of a reach, it may have disastrous consequences.

Viewing the casting couch as a “commercial transaction” along the lines of prostitution may lead to perverse outcomes.

You may have read the news that a federal judge in New York ruled Monday that a sex trafficking lawsuit, brought under the Victims of Trafficking Act of 2015 against disgraced media mogul Harvey Weinstein, could proceed.

Aspiring British actress Kadian Noble sued Weinstein in 2017, claiming that he sexually assaulted her.

She alleges Weinstein molested her and forced her into a bathroom to watch him masturbate after encouraging her to meet him in a Cannes, France, hotel room in 2014 to watch her acting demo reel.

This alleged event is now being cast as Weinstein having lured the woman to a certain location in order to engage in a “commercial sex act” — the quid pro quo not being cash in exchange for sexual activity but instead a more nebulous and intangible benefit, namely a career boost of some sort.

This construction would make the “casting couch” into a commercial act akin to prostitution.

Obviously, this is not what rational people think of when they hear the term “sex trafficking”, but perhaps more importantly, the potential ramifications of this construction are vast and far-reaching.

These days, the term “sex trafficking” is regularly used to embrace all kinds of activities that were never considered trafficking in years past, such as consensual sex work. But if the casting couch is now to be viewed as a commercial sex act — an act consciously engaged in for a tangible or intangible benefit — then het ready for some perverse legal outcomes.

Consider this: what argument could be used to distinguish a casting couch from a date? Your date buys you dinner, or promises to take you to a concert, and then you have sex with him/her — is this now a commercial sex act? And not only a commercial sex act, but one that could give rise to sex trafficking charges?!?

Interlocutory appeal

Weinstein had been attempting to get a federal appeals court to quickly rule on whether sex trafficking claims can legally be brought against him.

U.S. District Judge Alison Nathan rejected the request to immediately go to the 2nd U.S. Circuit Court of Appeals, saying the analysis by a fellow judge who died earlier this year was “careful and convincing.”

Weinstein’s lawyers had sought to take the unusual step of immediately appealing Judge Robert W. Sweet’s ruling last August that the proverbial Hollywood “casting couch” — in which aspiring actors and actresses are promised valuable professional opportunities in exchange for sexual favors — could be considered a “commercial sex act.”

They argued, correctly, I would say, that the Justice for Victims of Trafficking Act of 2015 was written to criminalize and prevent slavery, servitude and human trafficking for commercial gain and was being misused against Weinstein.

But Judge Alison Nathan refused to freeze a related civil case while Weinstein appealed the decision to a higher court in an attempt to get the rest of the suit dismissed.

“Weinstein has failed to show that this case falls into the category of truly exceptional cases for which interlocutory appeal was designed,” she wrote.

Nathan found that Weinstein’s request for an emergency appeal was over an issue that was “insufficiently exceptional” to allow it to slow the progression of the case.

“The validity of Judge Sweet’s conclusion that ‘commercial sex act’ is broad enough to include intangible benefits is not subject to substantial doubt,” Nathan wrote.

“Consistently with this expansive language, courts have interpreted ‘thing of value’ to include even intangible benefits that are of subjective value to the recipient. At least two courts have subsequently adopted Judge Sweet’s analysis in similar cases, finding that ‘thing of value’ can include career advancement or even just the promise of career advancement,” she added.

Now imagine you are a woman who is suing a producer, director or mogul for sexual misconduct. That defendant’s lawyers can now say that the sexual encounter was merely a commercial exchange.

She knew what she was doing, they’ll say. She walked into that room and struck a bargain. She’s not a victim of sexual extortion or misconduct, they can argue; she chose to engage in that activity to derive an intangible benefit from being in the good graces of that defendant.