Mel Gibson can testify about what he learned from one of Harvey Weinstein’s accusers, a judge ruled Friday in the disgraced movie mogul’s rape and sexual assault trial.
The 66-year-old actor and director was one of many witnesses whose identities were revealed in Los Angeles Superior Court. The judge and attorneys had taken a break from jury selection for motions about what evidence will be allowed and who can testify. The witness list is sealed.
The judge, Lisa B Lench, ruled that Gibson can testify in support of his masseuse and friend, who will be known as Jane Doe No 3.
Weinstein, 70, is charged with sexual assault by restraint of a woman, one of 11 counts of rape and sexual assault in the trial.
Prosecutors say that after receiving a massage from the woman at a Beverly Hills hotel in May 2010, a naked Weinstein followed her into the bathroom and masturbated.
Weinstein has pleaded not guilty and has denied any non-consensual sexual activity. His attorneys argued against allowing Gibson to testify, saying what he learned from the woman while giving her a massage did not constitute a “new complaint” under the law for which Gibson would take the stand.
A “new report” under California law allows the introduction of evidence of a sexual assault or other crime if the victim reported it to another person voluntarily and relatively quickly.
Prosecutors said that when Gibson brought up Weinstein’s name, the woman had a traumatic response and Gibson understood that she had been sexually assaulted. Gibson did not remember the time of the exchange, but the prosecution will use another witness, Allison Weiner, who remembers speaking with Gibson and the woman in 2015.
Judge Lench said Gibson’s testimony will depend on how the accuser describes the exchange when she takes the stand, and she can rule against it at that time.
A lawyer for Weinstein, Mark Werksman, argued that the defense should be allowed to question Gibson about widely publicized anti-Semitic comments during an arrest in 2006 and about racist remarks made public in 2010.
Lench said the discussion of Gibson’s racism was not relevant to the trial, but she would allow him to question whether he had a personal bias and animosity toward Weinstein.
Werksman argued that Gibson had this bias both because Weinstein is Jewish and because Weinstein published a book criticizing the portrayal of Jews in Gibson’s 2004 film The Passion of the Christ.
“Any evidence of Mr. Gibson’s racism or anti-Semitism would result in bias against my client, who challenged him,” Werksman said.
The lawyer wrongly said the film won an Oscar for Best Picture. Weinstein, whose films dominated the Oscars, shook his head at the defense table.
“I’m sorry, my client would know better than I do,” Werksman said. “But it was an award-winning film.”
The defense also argued that Gibson was trying to whitewash her image by focusing on Weinstein and asserting herself as a champion of the #MeToo movement.
The prosecution argued that Gibson had not made such suggestions, and that at the time of the conversation with his masseuse he was discussing reaching a business deal with Weinstein, showing that there was no prejudice.
Marlene Martinez, an assistant district attorney, called Gibson’s earlier comments “petty” but said they had no relevance to why he would be called to the stand.
Gibson’s testimony raises the possibility that two men, once among Hollywood’s most powerful but who have suffered public fallouts, could face off in court.
An email seeking comment from a Gibson representative was not returned.
Lench also found that Melrose Place actor Daphne Zuniga could testify in a similar capacity for a woman known at trial as Jane Doe No. 4, whom Weinstein is accused of raping in 2004 or 2005.
Weinstein is serving a 23-year sentence for a 2020 rape and sexual assault conviction in New York. That state’s highest court has agreed to hear his appeal. He was brought to Los Angeles for the trial that began Monday, five years after women’s stories about him fueled the #MeToo movement.
Friday’s arguments came a day after the release of the film She Said, which tells the story of the two New York Times reporters whose stories brought down Weinstein. Weinstein’s lawyers tried to delay the Los Angeles trial because publicity for the film could taint the jury. The judge denied his motion.
The trial is expected to last eight weeks. The judge and attorneys will return to jury selection on Monday. Opening statements are scheduled for October 24.