Bill Cosby’s conviction was reversed. More recently, Harvey Weinstein’s conviction was reversed. The takeaway in both cases, reversed for different reasons, is that the prosecution overstepped the law in order to make sure that these high profile defendants charged in the throes of #MeToo went down. You see, these were bad dudes. Everybody said so. And that’s reason enough to make sure they’re convicted.

And then their convictions were reversed. In New York, this was unacceptable to Democratic legislators, so a bill has been introduced to change the law.

§ 60.77 Rules of evidence; admissibility of defendant committing another sexual offense in a sexual offense case.

1. In a criminal proceeding in which a defendant is accused of a sexual offense, the court may admit evidence that the defendant committed any other sexual offense. Such evidence may be considered on any matter to which it is relevant, including to prove that the defendant acted in conformity therewith or had a propensity to engage in similar wrongful acts.

The bill goes on to permit the judge to exclude propensity evidence if, like FRE 413, the probative value is outweighed by prejudice.

2. The court, in its discretion, may exclude such evidence if its probative value is outweighed by the probability that its admission will create undue prejudice to the defendant.

Had the legislators merely adopted FRE 413 as an evidentiary rule, given that New York does not have statutory rules of evidence, that would be one thing. Had legislators done this for all crimes in New York, that would be another thing. But what this does is tip the scales by establishing that propensity evidence, the very evil the Molineux Rule exists to exclude, is statutorily established as probative to show “defendant acted in conformity therewith or had a propensity to engage in similar wrongful acts.”

Had this been limited to prior convictions, it would still be bad law, but this includes “prior bad acts,” which means that at a trial for the commission of Act 1, random accusers can testify about uncharged, untested, unconvicted prior acts, without limit as to number or evidentiary proof beyond the witnesses’ accusation. The purpose is clear, to taint the defendant as a sexual predator who is disgusting, has gotten away with it many times before, and deserves to be convicted now, if not for the crime with which he’s charged, then for the crimes for which he was never charged.

As for the defendant, he’s now placed in the position of not merely defending against the crime on trial, but against any and all accusations by third parties. This means trials within trials. Except that there is no due process with regard to any of the propensity evidence, no discovery, no notice, no opportunity to defend that doesn’t place even greater emphasis on the uncharged and unconvicted accusations which only serve to taint the defendant as a bad dude who deserves to be convicted for something.

Over the years, it has become clear that the same nice folks who would reform the criminal legal system for some would make it more difficult, and harsh, for others. The others are men accused of sex offenses. Murder and assorted mayhem is one thing. Rape is another. Blackstone’s ratio applies to the former. Lhamon’s ratio applies to the latter. Let no one accused of rape walk free.

We’ve seen this happen before. Many times. It was drugs. It was civil asset forfeiture. It was corporate malfeasance. Now it’s sex offense. To be fair, it’s been sex offense for quite a while. Each time, we’ve come to learn after bad law is established and shrugged off because of the peculiar evil and its related panic that we made a mistake. A grievous mistake. And yet we keep making the same mistake over and over, because this time it’s special.

If New York changes the law to make propensity evidence admissible to serve the very purposes for which it’s excluded, it will be another grievous mistake. And yet the Democratic legislators supporting the bill feel all righteous because it would have meant Harvey Weinstein’s conviction might not have been reversed.