Harvey Weinstein seeking dismissal of top rape charge against him

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Jefferson Siegel/Pool/Getty Images(NEW YORK) -- Harvey Weinstein’s attorneys plan to ask a Manhattan judge this week to dismiss the most serious sex assault charge filed against him, according to a new court filing.

The lawyers are going to argue that the embattled movie mogul had an ongoing romantic relationship with the unnamed accuser whose account prompted Weinstein's indictment on rape charges.

Weinstein’s lawyers intend to argue that the first-degree rape charge is invalid because his relationship with an unnamed accuser continued after the date of the alleged attack.

In order to demonstrate that the relationship was consensual, the lawyers want to submit to the judge in his criminal case a cache of several dozen emails Weinstein allegedly traded with the accuser.

Weinstein’s criminal attorney, Ben Brafman, faces a Friday deadline to file the pre-trial motion in New York seeking the dismissal of the rape charge.

Defense attorneys intend to urge the criminal court judge to dismiss the top charge on the basis that Manhattan District Attorney Cyrus Vance Jr. did not follow rules requiring prosecutors to bring potentially exculpatory information to the grand jury before an indictment is voted on.

A spokesperson for D.A. Vance declined comment.

The new documents were filed Wednesday in a bankruptcy court in Delaware.

The emails in question were allegedly sent and received through Weinstein’s official company email account.

After he was fired, his lawyers gained access to the emails, but a bankruptcy judge overseeing the dissolution of The Weinstein Co. issued a protective order banning the attorneys from disseminating them.

Weinstein was indicted in May and July by a Manhattan grand jury on charges that he sexually assaulted three women.

Among the charges is one count of first-degree rape and another for third-degree rape, both in connection with one alleged encounter on March 18, 2013, at a hotel on Manhattan's East Side.

Weinstein is also facing additional sex assault charges, but those are not addressed in Wednesday's court filing.

“The emails are to be attached as exhibits to pre-trial motions -- which must be filed in the Supreme Court of New York County no later than August 3, 2018, seeking a dismissal of the indictment for, among other reasons, the failure of the prosecutor to advise the grand jury of the substance of exculpatory communications made by the one of three complaining witnesses underlying the counts of the indictment and contained in the emails,” Weinstein’s attorneys wrote in the bankruptcy court filing.

“It is Mr. Weinstein’s belief that these emails are material and exculpatory, and the failure of the district attorney to provide this evidence to the grand jury warrants a dismissal of the indictment.”

Weinstein has pleaded not guilty and has said through his attorneys that any sexual encounters he had with women over the years were consensual.

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