MANHATTAN (CN) – In a bid to throw out rape charges against Harvey Weinstein, attorneys for the disgraced producer pointed Friday to dozens of emails where Weinstein’s accuser uses smiley-face emoticons and the phrase “booty call.”
Dissecting the emails in a 26-page motion to dismiss, defense attorney Benjamin Brafman said such friendly language discredits claims that Weinstein raped the woman on March 18, 2013, in New York City.
“Although reflecting neither Mr. Weinstein’s words nor feelings, by using the term ‘booty call,’ the complaining witness appears to acknowledge the consensual, intimate nature of her relationship with Mr. Weinstein and perhaps, most importantly, signaled her desire for a fuller and more emotionally committed relationship,” Brafman wrote. “This evidence should not have been kept from the grand jury.”
The woman in question is identified in Weinstein’s indictment only as CW-1, but Weinstein, 66, also faces charges related to allegedly forcible sexual encounters involving Lucia Evans and Mimi Haleyi.
Evans is represented by Carrie Goldberg, and Haleyi is represented by Gloria Allred. Neither attorney immediately responded to request for comment Friday afternoon.
The Manhattan District Attorney’s Office filed a superseding indictment on July 2, 2018, that charges Weinstein with predatory sexual assault, criminal sexual act in the first degree, rape in the first degree and rape in the third degree.
The predatory sexual assault charges carry a maximum sentence of life imprisonment.
Weinstein has broadly denied that he had nonconsensual sex with any person, and has made denials with regard to the three specific accusers in the pending indictment as well.
On Thursday, a Delaware bankruptcy judge gave permission for Weinstein’s legal team to include 40 emails from an anonymous rape accuser in a motion to dismiss his criminal case.
Judge Mary Walrath allowed Weinstein’s lawyers to use the emails, provided that the alleged victim’s name and initials are not used in the motion.
Brafman argued that approximately 400 communications between Weinstein and the accuser show that Weinstein had a friendly, long-term relationship with the woman, continuing years after the alleged rape occurred in 2013.
One exchange that Brafman highlights shows the woman using the common internet abbreviation “LOL.”
“In this exchange, the alleged rape victim writes she is ‘laughing out loud’ because her alleged rapist was making her think about him,” Brafman wrote. “It was fundamentally unfair that the Grand Jury was prevented from making any inquiry of CW-1 as to her direct and seemingly solicitous and complimentary communications with her alleged rapist immediately after and consistently for years after the alleged rape.”
The accuser wrote the “booty call” message to Weinstein on Feb. 8, 2017: “I love you, always do. But I hate feeling like a booty call.”
Brafman argued that communications sent to Weinstein after the date of the alleged rape “could be understood by the grand jury as far more consistent with an ongoing warm, friendly, relationship (fundamentally inconsistent with any forcible rape having occurred) than communications between a rape victim and her alleged rapist.”
Other communications cited in Friday’s filing include an Aug. 27, 2013, email — “By the way I was so happy you saw me today! Very honored. Talk soon” — and this Oct. 22, 2013, email to Weinstein: “I got a new number. Just wanted you to have it. Hope you are well and call me anytime, always good to hear your voice.”
On Jan. 5, 2014, the accused sent Weinstein an email telling the producer: “Your [sic] the one who makes it look good with your smile and beautiful eyes!!”
Weinstein, who is out $1 million bail, is set to be back in New York Supreme Court Justice James Burke’s courtroom on Sept. 20.