Harvey Weinstein’s criminal trial has been delayed, but a separate sex trafficking lawsuit is moving forward against him in federal court. A federal judge has ruled promises made on a “casting couch” may turn a sexual encounter in a “commercial sex act” under the Trafficking Victims Protection Act.​

Allegations From an Aspiring Actress

Kadian Noble, an aspiring actress, alleges that Weinstein sexually assaulted her in a hotel room at the Cannes Film Festival in 2014.  The location of the alleged assault, however, is actually irrelevant to the sex trafficking aspect of the case.  The key allegation is that Weinstein used promises of a movie role and modeling career to entice Noble into engaging in a sex act.  U.S. District Judge Robert Sweet ruled that these promises from a movie producer turned what happened next into a commercial sex act.

Noble had met Weinstein a few months earlier and discussed a possible movie role. According to the complaint, when they met again in Cannes, Weinstein invited Noble to come to his hotel room “to discuss the film role he had in mind for her.”  Once in the room, Weinstein told Noble that he had all her details and that he would “take care of everything.”  Weinstein even called one of his company’s producers, who assured Noble that “they would work” with her if she was “a good girl.”

The complaint alleges that Weinstein then “forcibly pulled Noble into the bathroom, where he began rubbing her breasts and buttocks.”  He “blocked her exit” and “forced her to masturbate him.” All the while, Weinstein allegedly assured Noble that “everything will be taken care of for you if you relax.”

No movie role ever materialized, and no follow-up meetings were ever scheduled.

How Sexual Assault Turns into Sex Trafficking

How did this alleged sexual assault become a sex trafficking case?  The answer lies in the expansive language used by Congress in the Trafficking Victims Protection Act (TVPA).

When Congress passed the TVPA, it noted that “trafficking in persons is not limited to the sex industry.”  Traffickers often lure women and girls into their networks through false promises of decent working conditions at relatively good pay as nannies, maids, dancers, or models.  Many victims are defrauded or forced to engage in sex acts without actually being paid money in exchange for sex.

The TVPA, therefore, defines sex trafficking as the use of force or fraud to recruit or entice a person to engage in a commercial sex act.  It defines a commercial sex act as “any sex act on account of which anything of value is given to or received by any person.”

Judge Sweet had no problem finding that Noble alleged a fraud.  “The fraud consist[ed] of promises of a lucrative film role and a modeling meeting, which were knowingly false, and on which she reasonably relied.”  In this respect, the judge found that Weinstein’s alleged conduct was no different than in other cases where sleazy owners of “modeling agencies” enticed women with promises of a modeling career.

Judge Sweet also had no problem finding that force was used when Weinstein allegedly grabbed Noble, blocked her exit, and forced her to masturbate him.

Debating the Value of the Exchange

The more interesting issue was Weinstein’s argument that he did not engage in a commercial sex act because “nothing of value was exchanged.”

This is where the “casting couch” came in.  Judge Sweet found that the opportunity to meet with Weinstein, by itself, was valuable:  “For an aspiring actress, meeting a world-renowned film producer carries value, in and of itself.  The opportunity, moreover, for the actress to sit down with that producer in a private meeting to review her film reel and discuss a promised film role carries value that is career-making and life-changing.”  Judge Sweet also found that Noble could reasonably believe that Weinstein’s promise of a future movie role was something of value.

Weinstein’s attempt to appeal the decision was rejected.

So far, the court has only decided that Noble has alleged enough facts to allow the case to proceed to the next stage.  Ultimately, Noble will have to convince a jury to believe her version of events.  If they believe her, then Weinstein may be liable for compensatory and punitive damages, plus Noble’s attorneys’ fees and costs.  He also has to contend with accusations of sexual harassment, rape, and sex trafficking from more than 90 other women.

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