Kevin Spacey trial wrongly put #MeToo on the stand

Daily News

The child sex abuse lawsuit brought by actor Anthony Rapp against Oscar winner Kevin Spacey — among the most prominent of early #MeToo claims in the entertainment industry — ended in victory for Spacey Thursday. But he was not the only one on trial. 

As the proceedings unfolded, it was clear that the #MeToo movement’s legitimate efforts to empower silent survivors of sexual abuses to disclose their suffering and end the scourge of sexual assault were being challenged, too. And it didn’t matter which of the two individuals in the suit prevailed: The damage was inflicted in the opening statements, persisted through the trial and was cemented during closing arguments. 

Both sides can cater to biases the jurors might possess. For the defense in this case, it was a good gamble to appeal to anti-#MeToo sentiment since surveys find that it’s rampant in some populations.

The focus of the testimony the jury heard concerned a decades-old allegation of sexual assault when Rapp, then 14, was a guest in Spacey’s apartment. Spacey, now 63, was 26 at the time. After Rapp made his allegations public in 2017, Spacey originally responded on Twitter by stating he did not remember the incident but would owe Rapp “the sincerest apology” for “deeply inappropriate drunken behavior” if he were guilty. From that, the jury had to decide whether his statement was a confession, what impact excessive alcohol use had, and who could remember it accurately.  

Despite saying on Twitter that he didn’t remember what happened, Spacey admitted at trial to having had social contact with Rapp at the time. He admitted Rapp was in his apartment. He told the jury he remembered having no interest in Rapp, who was “like a kid” the night he met him. Instead, he remembered flirting that night with another young actor, John Barrowman, then 19, who was “like a man.”  

Meanwhile, Spacey’s lawyers took Rapp to task for alleging abuse occurred in Spacey’s bedroom. They asserted that Spacey’s studio apartment did not have a separate bedroom.  

The jury had to sort through the contradictory evidence to find the truth. But in doing so, it was made to view this evidence through the lens of insinuations about the #MeToo movement and speculation about its impact on Rapp’s allegations. 

In her opening statement, Spacey attorney Jennifer Keller squarely targeted the #MeToo movement: “One of the cardinal rules of the so-called MeToo movement [is] that you have to believe the victim. You’ll see that Mr. Spacey said, ‘This didn’t happen, I don’t remember it’ … They told him to apologize. It was cleverly set up by Mr. Rapp.” 

And while testifying in trial, Spacey denied any wrongdoing and blamed his Twitter response for being the product of misguided “crisis” management against the backdrop of the #MeToo movement. He said that at the time of Rapp’s allegations, “The industry was very nervous. There was a lot of fear in the air about who was going to be next.” 

Daily News Actor Anthony Rapp, right, and his partner Ken Ithiphol, arrive at federal court in New York on Oct. 19, 2022.
Actor Anthony Rapp, right, and his partner Ken Ithiphol arrive at federal court in New York on Wednesday. Angela Weiss / AFP – Getty Images

Keller also used a familiar trope for dismissing allegations against powerful Hollywood men in the wake of #MeToo by attributing Rapp’s motivations to publicity-seeking. 

In her opening statement, Keller told the jury the case was about one actor being jealous of another: “While Anthony Rapp has made a living as an actor, a working actor, which is not an easy thing to do, he never became the international star that Kevin Spacey is, who could play almost any role.” In closing arguments, Keller again alluded to the claim: “So here we are today and Mr. Rapp is getting more attention from this trial than he has in his entire acting life.” 

Rapp played a role as well in placing #MeToo in the crosshairs. He reiterated his embrace of the #MeToo movement after losing the trial. He defiantly proclaimed that his lawsuit was “part of the larger movement to stand up against all forms of sexual violence.” 

It is a problem that the movement became a centerpiece of the case in the courtroom. The rules of evidence bar speculative testimony because it’s not evidence. The jury should be focused only on actual evidence as to whether Spacey abused a child. The jurors should not have been asked — as they effectively were — to put a movement on trial based on innuendo and speculation about its role in Rapp’s suit.

It’s not an accident the jury was put in that position, though. It is unethical for trial lawyers to engage in discrimination during jury selection based on gender, age and other such protected classes. But both sides can cater to biases the jurors might possess. For the defense in this case, it was a good gamble to appeal to anti-#MeToo sentiment since surveys find that it’s rampant in some populations. 

Public opinion polls show that only about half of Americans support the movement, and that there are deep divisions in how men and women view it. There are even deeper divisions along political party lines. When it comes to age, less than half of men over 30 support it.

The jurors should not have been asked — as they effectively were — to put a movement on trial based on innuendo and speculation about its role in Rapp’s suit.

 As a matter of principle, we should want anyone alleging a sex crime to have the evidence presented to a jury to determine what happened. And as a matter of principle, we should want anyone facing such charges to be fairly tried based on the evidence. When cases become freighted with divisive social issues external to the facts, we risk both principles. 

Many in the press have compounded this interlacing. In a typical example, Variety magazine called the Rapp-Spacey trial a #MeToo case raising issues of “power imbalances … the dynamics of sexual assault, the reliability of memories, and the nature of due process.” 

But that was a totally gratuitous framing. These dynamics are precisely what’s been at issue in every sex crime case before the movement existed. Sex criminals overpowered their victims. Survivors delayed reporting the crimes and their memories were then challenged for their reliability. The due-process rights of the accused were championed by defense lawyers. 

There was no reason to allow the trial to demonize a movement that encourages reporting sex crimes and discourages sexual abuse. There was no reason to distract the jury from facts about whether child sex abuse occurred by forcing it to view the evidence through a sociopolitical lens. 

How the trial was conducted matters to people other than Rapp and Spacey. Still-silent survivors of sex crimes watching the proceedings were asking themselves whether their claims would be judged solely on the merits of the evidence. Those silent survivors had their answer before the verdict was delivered.

Michael Dolce

Michael Dolce, a survivor of child sex abuse, is a litigation lawyer at Cohen Milstein Sellers & Toll PLLC. He leads the firm’s sexual abuse, sex trafficking and domestic violence team. 

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