This article originally appeared in Haaretz.
Attorney Blair Berk exits an elevator in one of the generic hotels on the Tel Aviv promenade and asks for a few minutes to send a text message.
With American politeness, she explains that during the night there was a development in the case of one of her clients, Sylvester Stallone, with regard to accusations of his having committed sexual harassment back in the 1960s.
She’s on vacation but there are things that need to be done.
You’d never guess from Berk’s smiling and friendly demeanor that she is the most popular criminal lawyer in Los Angeles. Here is a partial list of her clients: Mel Gibson, Leonardo DiCaprio, Cameron Diaz, Lindsey Lohan, Britney Spears, Caitlyn Jenner, Kiefer Sutherland, Halle Berry, Queen Latifah, Tracy Morgan.
We could go on dropping names for quite a while but these days we pause over one in particular: Harvey Weinstein, the Hollywood producer accused of rape whose depiction in a New York Times investigative report as a serial sexual harasser gave rise to the international #MeToo campaign.
And if over the years Berk has represented movie industry people mainly for relatively minor charges – drunk driving, tangles with paparazzi – ever since the Weinstein affair hit the headlines she has been dealing with many sexual harassment complaints.
Unlike many attorneys, who are eager for any media exposure and like to conduct legal battles in the press, Berk hardly every gives interviews, as a matter of strategy. Last week she arrived in Israel on a family vacation and agreed to meet. She stipulated in advance that she would not be able to relate to specific cases or discuss her clients.
Nevertheless, something is stopping her from keeping mum: the influence of the #MeToo campaign, which she sees as having reached a disturbing and dangerous point. She speaks thoughtful and cautiously, and avoids providing any real or theoretical examples almost entirely even if they would support her argument. She knows that everything she says is being followed and any statement could be subject to legal scrutiny. Yet despite her caution, it is clear that she is fired up.
“As a feminist,” she says, “in terms of sexual harassment, in terms of misconduct, even, that’s a conversation we should have. But these are very complicated conversations because human interactions - sexuality, sexual contact, is on a continuum. But while it’s unacceptable or not allowed of us - in a workplace for instance - someone with more power to abuse their power by being vulgar or boorish? Or putting their hand on a woman when it’s not wanted, it’s important not to conflate it with rape.
“Everyone of those acts is not rape. Every one of those acts is not a crime. It is definitely something we should be talking about, but it’s not necessarily something we should criminalize.”
I ask about how in most instances it’s not simply a matter of an inappropriate word or someone simply laying a hand on someone.
“One of those very uncomfortable truths is that there are women who engaged in sexual contact with a man in situations when they’re not necessarily attracted to that man but that more powerful man was offering them something they want, advancement, the Golden Globe, something they want, and they decided to have that sexual encounter in order to get that. Intentionally, consensually and later regret that they did that. We can decide that that is a fundamentally coercive act and should criminalize it, but right now it’s not a crime and I believe it shouldn’t be a crime,” Berk says.
“I believe one of the dangerous things about what’s happening here is we’re treating women as children. We are infantilizing women. It’s a thing that as feminists we don’t want to do, which is to claim that a woman doesn’t have the ability to choose.
“And while it’s uncomfortable and while it’s a difficult truth people getting something from someone more powerful whether if the currency of sex, or whether if of doing something outside of their work in order to curry favor that’s not okay that there’s expectation from a more powerful person, but it’s not a crime. Unfortunately, in this moment we’re doing things that blur those lines.”
Where do you see this happening?
“When the headline reads woman-actress-handsome accuses, nobody pays attention to what she said. Many of the allegations are not that they were raped or sexually assaulted. It’s that someone talked to them in a disrespectful way or touched their back in a way they felt uncomfortable with, or made a comment, all the things that we may decide are not okay but are not crimes.
“That’s a concern to me. It’s also a very real concern to me that due process has almost been taken as evidence of further predatory behavior because someone is asking to be allowed to show evidence in support of the allegations.
“The idea of someone going on Instagram or Twitter and making accusations, all of a sudden, that’s enough to destroy a life. … I don’t think any of us want to accept that and we shouldn’t, because when they come to our son or our father or our husband we would want someone to care about the process.”
“It’s also really danerous because with that comes this horrible slogan ‘believe women’ as if some gender, by definition, only speaks the truth. There are women at this moment who are making false allegations just as there are women who are making truthful allegations. Just as there are women who are exaggerating contact that they had and conflating contact that they had.
“And what was possibly an unpleasant experience now is being alleged as a crime. We need to be so careful, especially in a moment like this, because there’s such willingness to erase someone from history in a very short amount of time, just based on accusations alone and that’s disturbing.”
“I have clients whose obituaries are now being written with unproven allegations, which will be the last statement about their life and that’s making me very uncomfortable.”
Berk describes an atmosphere of fear among men in Hollywood and hush-money deals for vast sums being cut far from the eyes of the media. What she really finds disturbing, though, isn‘t the panic certain men are experiencing but rather the sense that the public pressure is seeping into the justice system and influencing decision-making processes.
“I think men are terrified. I specialize in these kinds of prosecutions. It has increasingly been difficult, particularly where we are willing to be sexist in the way we apply the law. For instance, you go out with a woman to a bar. You each have five cocktails. You, leaving the bar, look at each other and you both agree you shouldn’t drive.
“You both wake up the next morning in the same bed without clothes, clearly having sex. If that woman will go to the police station and say I think I’ve been raped because I was too drunk to offer my consent and clearly had sex - arrest that person. In California right now they’ll arrest him. If you (i.e, a man) had the same experience and you’d go to the police station and say I think I’ve been raped they’ll laugh you out. And the only difference is, excuse me, that you have a penis.
“Do we really want to have criminal prosecutions based on the feeling that the women had no control if she was impaired by alcohol she could not by definition give consent, yet the man is criminally responsible for that act? That’s a long way from a stranger committing a violent sex crime but they’re prosecuting as if they’re the same crime. That’s disturbing.
“I had a client who got a lot of attention because he was accused by three women of rape. He had a $2 million bail, I’ve been defending him for a year. From the start I said to the prosecutor: ‘This man has been falsely accused.’ It took me a year to convince them to dismiss all the charges. I was able to show that each of the accusers didn’t tell the truth.”
There are also a lot of women who do tell the truth, I press.
Berk replies: “It doesn’t mean that there are not crimes that are committed, but it does mean that not every unpleasant contact you have is a crime. And that’s important. Particularly a lot of these cases that are brought up right now are historical, meaning, for the first time after 15 years a woman claims she was raped. No forensic evidence, typically, delayed reporting means that witness memories fade. Those cases are so much more difficult for both prosecutors and defenders.
“And the political pressure making prosecutors and legislators do away with, you know, one of the fundamental protections we all have was the statute of limitations, right? If you were a victim of a crime you need to report it and there are reasons for it, beacuse the freshness of it allows it to be reflection of evidence. If you wait 20 years just because you didn’t feel like it, that creates a problem.”
But there are a lot of reasons for this. It isn’t easy to complain and 15 years ago the atmosphere was different, I say.
“That creates a problem. All of a sudden we have this ‘expertise’ which I think fairly is ‘junk science,’ something called rape accommodation syndrome experts, if a woman has taken 20 years to report the claim the expert will get on the stand to tell the jury that it’s very common for women to delay their report, and they hear it and think: Okay, that doesn’t have to be an explanation, we agree, it’s common. If the woman reports it immediately the same expert says: ‘Reporting immediately? That means it happened.’
“If she’s inconsistent with her facts, if she tells the story one time this way and one time another way, the expert says: ‘Oh, very common for a woman who has been raped to be inconsistent. In reverse, if she consistent that’s mean it happened. It’s almost Alice in Wonderland. It explains any problem in the case through the mouth of an expert, that the jurors are very influenced. I’m very concerned about that and I’m very concerned that it’s not based on science.“
The atmosphere has changed, but has that made it harder to defend people?
“It’s much more challenging. Because it’s not popular, the easy thing will be to say ‘go after him, all men are guilty.’
“Remember the Stanford case when the athlete who was accused of rape and the judge sentenced him to only six months? Last week, after a campaign, he was fired. Voters voted him out. My colleague Alan Dershowitz wrote an op-ed in The Washington Post about how dangerous it is. By doing that you’re telling judges that unless you’re the most punitive, unless you’re aggressive one way against the defendant, you’ll lose your job.“
Are you ever contacted by people fear the possibility that there will be accusations made against them?
“Another sad fact, there are civil lawyers who like to have press conferences. There are lawyers in the U.S. right now making $5 million a week from gathering clients and threatening to make allegations against famous people, going to these famous people quietly and saying you have 24 hours to pay $10 million dollars, we an file this lawsuit or go to the police and publicly accuse you or you can come to a private mediation and solve it this way. What would you like to do?”
“Be extorted - you know what the climate is right now. The climate is unforgiving, the climate is horrific, people’s lives and reputation are lost in less than 3 hours. If you have the luxury and having the resources to pay, you pay, no matter whether you’re innocent or guilty. And that’s awful and people are doing it every week right now. For every client I have who has been accused, I have 10 who are not in public right now and it’s one of the ugliest things I’ve ever seen.”
Rescuing Mel Gibson
Berk, 54, was born in North Carolina. Both her parents are lawyers. She is Jewish and visits Israel often (“I have a lot of friends here”). She is married to director and producer Daniel Berk and has a 17-year-old daughter. She came to Los Angeles by chance.
As she graduated from Harvard Law School an LA law firm offered her and a friend a job.
“They put us in the Four Seasons by the pool, in the middle of the winter, and said see how you like it. And we liked it.”
Berk stayed, and was put in charge of the firm’s entertainment business field. In her first case, 30 years ago, she represented heavy metal rocker Ozzy Osbourne after parents charged that his song “Suicide Solution” had encouraged their children to commit suicide. He was found not guilty after her arguments in his defense that were based on freedom of speech and the First Amendment to the Constitution.
Since then her client list has grown, as has her reputation. For example, she represented Kanye West and Reese Witherspoon after conflicts with paparazzi, Caitlyn Jenner in a famous car accident and Johnny Depp in the divorce trial in which he was accused of abusing his wife, actress Amber Heard.
She rescued Mel Gibson from charges of verbal abuse by successfully depicting the prosecutors’ case as attempted extortion. When her mentor retired from the New York firm and offered her a partnership in the new firm he founded, she joined him.
She says that when you are in Los Angeles, a lot of people from the film industry come to you but they are not her only clients. For example, she has two murder cases now, in one of which the suspect is a woman. “I think one of the reasons I have trust with my clients is that I don’t treat them different. I don’t accept that I’ll be talking to an agent or a manager or a publicist. They come to my office, they sit in the chair.
“When your liberty is at stake you very quickly understand what’s important. Often it’s really hard to know who to trust, who will tell them the truth, that becomes a very valuable commodity. Fortunately I don’t have any investment in having a future relation with my client. If I do my job properly not only that we never have contact again but they’ll never be associated with me in any way. That helps to build trust because there’s no investment.
“I’m not looking to have another movie with them, I’m not looking to represent them in the future because I’m truly doing my job I’ll get through the problem and they won’t know me again. I’ve really succeeded if they don’t even remember my name.”
Her first client was in fact a man, and as it happens she recently met Osbourne again after many years. Even today, she says, despite the criticism and the kangaroo courts in the social media, she doesn’t call to restrict these sites and directs her complaints mainly at the mainstream media.
“I am and always will be a very big advocate of free speech,” she says, but “the advance of the ability to accuse that way, just by putting it on Twitter without any accountability - that’s a concern. I think you should have the right to do it, but I think there maybe should be more accountability if you do it and it’s proven to be untrue.”
Have we reached a stage in which it is necessary to apply the same laws to social media as to mainstream media, so as not to permit just anything to be published without fact-checking?
“We should be very careful about restricting social media. It’s a complicated area, and maybe in some aspects we define them in certain instances as journalistic outlets, and that can be discussed, but I think we don’t want to silence.”
Berk says she’s concerned more about “the mainstream journalists who feel it gives them license to re-publish, where I get very upset, because I think it’s reckless and irresponsible for a journalist just to repeat on Twitter and to say it’s already on social media therefore we don’t have to do any further investigation. This is not journalism because they’re just putting in everything, and seeing what happens and that will destroy somebody.”
“Right now, journalism in the U.S. in this area, the way reporters are reporting these cases is very concerning. You have a willingness to report accusations without any sources, you have a willingness by many reporters to use terms in their reporting before there is any determination whether anything happened or not like survivor, the victim, the victim said, survivor said. Those are incredibly powerful terms that I think have no business in journalism where there hasn’t been a determination of whether the accuser is making a truthful claim.
“I can’t tell you how powerful that is and how concerning it is and you have people getting Pulitzer Prizes in the U.S. like Ronan Farrow, who were having dinner with the accusers, taking photos, being advocates. The lack of objectivity in this area at the moment is very concerning. It’s a moment I’ve never seen before. Any other offense, it this were a murder or a violent crime they were used words like alleged/accusations instead they’re using words like victim before anything was proven.
“Just because you’re a woman and make a claim on Instagram doesn’t make you a victim. “
“What should we do? Just go ahead and make the execution?” before verifying the facts, Berk says.
Would you say that even if you were representing the victims?
“I also represent victims, I like to think I treat everyone the same. The times I represent victims, people who claim to be victims, it’s important for me. Human experiences are a complicated thing.”
Do celebrity clients and high publicity affect the way you conduct a case?
“One of the things that a high-profile case does is that the glare of the spotlights makes time stop in a way, because there’s so much focus on every move and there’s so much transparency on every decision that is made.
It doesn’t change the way I approach a case but it makes me very cautious about doing my work publicly because to properly defend someone, you don’t do it by press conference. I see lawyers who do that and they make a real mistake, because you can’t always predict the life of a case and things change very rapidly and to try to do it publicly doesn’t work.”
But another equally important trial is conducted in social media. How is it possible to ignore this, I ask.
”That fight is lost because for instance there are lawyers who believe if they just say that their client is innocent it just goes away. Every time you create a news cycle in a high profile case, the only thing that happens is that they re-publish all the worst allegations against your client. So whatever you’re saying, the repeating of those allegations have more power.
“If you’re speaking about a specific situation they say: ‘Why didn’t you speak about the other accusations, those must be true because you didn’t address them. So you have to be careful. I don’t believe necessarily that you could ever win that contest on behalf of the accused in a climate like this.”
“We’re not talking right now at all because either we’re too afraid to talk about the reality that some of these accusers are making untrue allegations and they’re doing it from a number of different reasons including money and also including being included, #Me Too. So the reality is uncomfortable.
“We have women who are blaming an individual man for not having a career though, we see women who are for the first time, after making an accusation, are getting an agent when they couldn’t get an agent for 20 years because they were difficult to work with, getting media attention, being celebrated, for identifying themselves as a victim. That’s a very uncomfortable thing that no-one wants to talk about, but it’s happening.”
Because you will immediately be accused of misogyny?
“We have to be willing to talk about this. And I think in doing so it doesn’t let men off the hook, but it certainly makes us talk in reality and not in this fantasy … There are men who been accused that for 30 years they exercised their power in a very visible way including sexually and there was no mystery about it. Because we’ve decided now that we are going to do something about it doesn’t mean it was hidden, we just decided that now we are going to do something.”
Does this atmosphere make you stop and think before you take on such cases?
”I never hesitate to get a client. That’s what I love, that’s what I do. The most important time for a criminal defense lawyer is when the mob is out. Right?
“It’s so critical that there be someone. Some important part of the system is where you demand before you string somebody up. Arthur Miller wrote a wonderful play call ‘The Crucible’. I went back and looked at it. You can read that word by word now and literally the hair will stand up on your arms for how many similarities there are. Accusations being enough to destroy a life and then you prove you are innocent and it’s after they’ve already burned and executed you.”
Nevertheless, as a woman don’t you have a problem representing people described as having done terrible things to women?
“I’m very proud of what I’m doing. As a woman, as a feminist, as a criminal defense lawyer. My first love is the Constitution and there’s no piece of it that I don’t, at the end of the day, care more about defending than about being popular. I think we all want if we were accused of something, we all want a champion, an advocate who could defend us properly.”
“We as women should not want injustice. At the very moment we’re taking about these important issues. It doesn’t mean that there are not crimes that are committed but it does mean that not every unpleasant contact you have is a crime,” Berkin said.
“Sometimes clients make mistakes. I would like the luxury of only representing innocent people, but the human condition is fluid. I’m very proud of what I do, I think if I had less confidence in how important my work is or questioned my own feminism or questioned how consistent my feminism is with my love of the Constitution, I might be less secure, but I’m not because I so believe in the importance of my work, my criminal defense and of due process. And I’ve seen so many instances where it was the difference in preventing a real injustice.”
And how do you when you succeed in getting someone declared not guilty when you know that nevertheless he has done something?
“I believe very strongly that the criminal justice system usually works. I’ve had very few instances where I got somebody out of something he did. Most of our cases have a result that is just. The criminal justice system usually works.”
Is it possible to emerge from accusations of this sort and rehabilitate one’s image?
“The rapidity with which such accusations spread is alarming, she says. She cited a case of a client “accused by three different women. He was into kinky sex, and the women who accused him, brought the cases. The police portrayed them as a young sweet college students who were afraid to tell their parents. In realty they were advertising with straps and bondage for torture and humiliation. That men was destroyed.
“The police had press conferences saying he’s a monster, saying he’s a serial rapist. So yes, I got his case dismissed but where would he go to get his reputation back?
“Where does he possibly go for his private sexual interest that he had no intention of making public and he was destroyed publicly. And the answer is probably nowhere, and that’s the problem.”
Are there some cases of success where a reputation is actually redeemed?
Oddly, she says, even though everyone has cameras these days, “there are very few cases that I have that are very well documented. I had a really extraordinary example, I had a filmmaker he had been arrested for rape in a club.
“Earlier in the evening he met a girl at the first club with a bunch of friends and they had made their way to the last club where he was arrested. She claimed she had been raped. Within 24 hours of the arrest I was able to get all of the surveillance videos and smartphones of friends who fortunately caught that woman with my client. And we were able to reconstruct the entire evening, including at the last club when she takes him by the hand and pulls him to the bathroom.
“Not only that, we were able to show her entire statement to the police, ‘he was pushy on men, I didn’t want to be with him,’ we had her at one point in the second club lifting her top, and the camera caught it, so it was an extraordinary situation when in a very short amount of time we could prove he’s innocent and it never went public, but that’s a rare case now. Now everyone goes immediately to TMZ. Another unflattering side of media journalism is that outlets make a lot of money from clickbait from sensational stories. It’s ugly.”
Can you also see the positive sides of #MeToo? The campaign has changed the atmosphere and I assume it has been causing men to think twice before they do anything.
“There is great potential for good which would come from the #MeToo movement, particularly if it focuses a spotlight on sexual harassment and abuse of power which too often exists in the workplace, especially for women in low-wage jobs who have far fewer choices.”