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Column: Documentarian Barry Avrich Ponders Whether Harvey Weinstein Will Be Convicted

Will Harvey Weinstein go to jail? That’s perhaps the most debated topic in Hollywood.

It’s a question that makes me miss my friend Dominick Dunne, the controversial Vanity Fair columnist who would have already succeeded in interview-ing the chambermaids at Harvey’s sex-addiction clinic. Dunne once prophetically told me there would be a massive reckoning in Hollywood. He dropped a few names of sex-addicted producers, saying, “No matter how valuable you are to the studios, when you surround yourself with people that intensely hate you, when you do fall, your descent into hell will be Shakespearean.”

When I made my first film on Harvey, “Unauthorized: The Harvey Weinstein Project,” in 2011, many people, from well-known journalists to studio executives, whispered to me about Harvey’s aggressive behavior with women. One writer insisted off the record that he had pressured Harvey into admitting that he made various payoffs to women over the years, but not one of my subjects would dare tell their story on camera.

I knew Harvey was tracking my film, nervous that I would expose something salacious. He even instructed a reluctant former Miramax employee to show up for an interview with a tape recorder to gauge my questions. He told Quentin Tarantino and others to refuse my requests for interviews. I had to beg director James Ivory to show up when he called me from the subway threatening to cancel, claiming Harvey was the last resort to pitch his films to. He hilariously recounted nearly being decapitated after Harvey hurled a briefcase at him. When Martin Scorsese agreed to be interviewed, he seemed to be in a hypnotic state, comparing Harvey to Cecil B. DeMille. It was a near unusable interview, given his legendary battles with Harvey on “Gangs of New York.”

In a scene from “The Last Mogul,” my film on late Universal Studios chief Lew Wasserman, Johnny Carson, speaking at a gala, said, “The only reason we’re here tonight to honor Lew is fear.” The only reason many looked the other way and gave in to Harvey was fear. Bill Cosby used drugs; Harvey used fear. Ultimately, Harvey had IFC Films buy my first film and bury it. Had Harvey’s power not faded substantially and he still had access to political clout like the Clintons and sluggish district attorneys, he would still be practicing his dark art.

Now, Harvey Weinstein is preparing for the fight of his life, and yet fear still looms large in Hollywood. My new film, “The Reckoning: Hollywood’s Worst Kept Secret,” which captures this extraordinary scandal, premiered to emotionally moved audiences at the Hot Docs festival last month. Even in exile, Harvey is pressuring journalists to not cover the film, and a few studios have decided to avoid the topic altogether. Our industry has skeletons in our closets, but looking the other way only feeds the hysteria and mutes the conversation.

“The only reason many looked the other way and gave in to Harvey was fear. Bill Cosby used drugs; Harvey used fear.”

So, will Harvey go to jail? I fear not. If an avalanche of corroborating testimony is allowed in, similar to the Bill Cosby case, and maybe some unlikely DNA evidence surfaces, Harvey will be starring in a cellblock production of “Chicago” for the next 25 years. Maybe NBC will film it live, complete with the showstopping song “He Had It Coming!” But then you cut to his cocky perp-walk smile and his emphatic insistence that every allegation is consensually benign. And there is something that happens in a courtroom when you have the alchemy of a cunning defense attorney — Benjamin Brafman, former assistant district attorney — and Harvey’s resources to hire countless private detectives to produce embarrassing evidence designed to destroy incriminating testimony, and a few reputations, in its wake.

Harvey’s alleged guilt during this trial will be irrelevant. He’ll admit that his power was an attractant for those looking for a meeting with an Oscar-winning producer, but how do you quantify what is consensual when you are staring down a 280-pound Hollywood heavyweight  in a bathrobe begging for a massage in exchange for a shot at stardom? His hotel room was not Schwab’s drugstore. Undoubtedly, his defense team will introduce text messages, maybe a few recorded conversations and some humiliating discovery to persuade the jury that the complainants were willing participants or perhaps, have a history of opportunism or promiscuity. This trial could fade to black.

So far, the complainants in this case allege forced oral sex and rape. On the stand, these women will need to be so extraordinarily brave and well prepared when they feel like they are the ones on trial. Yes, the times have changed: Bill Cosby is going to jail, and choruses of unrelenting victim activists like Rose McGowan are trying to keep the story above the fold. But the People vs. Harvey Weinstein is a contest produced by a man with the power to avoid punishment in an industry with a history of blurring the lines between guilt and fame.

Barry Avrich is the director of “The Reckoning: Hollywood’s Worst Kept Secret,” which will be released in the fall.

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