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LEGAL ANALYSIS: There is More Than Enough to Charge Harvey Weinstein With a Crime

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New and even more horrific allegations have emerged accusing Harvey Weinstein of forcibly raping several women. The bombshell New Yorker piece written by Ronan Farrow has an equally troubling detail: It appears that the New York Police Department and the Manhattan District Attorney’s Office majorly dropped the ball by failing to press charges against Weinstein. Multiple legal analysts, including several former New York prosecutors, told LawNewz that prosecutors had more than sufficient evidence to charge movie mogul Weinstein back in 2015.

What’s the evidence/allegations? A beauty finalist, Ambra Battilana Guiterrez, met Weinstein at a reception, and after an in-house meeting she told investigators with the New York Police Department Special Victims Unit that he “lunged at her, groping her breasts and attempting to put a hand up her skirt while she protested.”  The police set up Guiterrez with a wire, and Weinstein proceeded to admit that he sexually abused her. Here’s how the conversation went (all caught on the wire!):

In an increasingly tense exchange, he presses her to enter. Gutierrez says, “I don’t want to,” “I want to leave,” and “I want to go downstairs.” She asks him directly why he groped her breasts the day before.

“Oh, please, I’m sorry, just come on in,” Weinstein says. “I’m used to that. Come on. Please.”

“You’re used to that?” Gutierrez asks, sounding incredulous.

“Yes,” Weinstein says. He later adds, “I won’t do it again.”

After almost two minutes of back-and-forth in the hallway, Weinstein finally agrees to let her leave.

By stating that he “won’t do it again,” of course, Mr. Weinstein appears to be admitting to the crime. What crime?

“Even without the wire tap, the complainant’s statements alone as to the actions of Weinstein provided enough evidence to go forward with at least two separate offenses:  forcible touching and sexual abuse in the third degree,” criminal defense attorney Julie Rendelman said in an interview with LawNewz. Rendelman spent 20 years as a New York prosecutor at the Kings County District’s Attorney’s office. “Both are A misdemeanors punishable by up to a year in jail.  The fact that she made an immediate outcry, followed by an admission by Weinstein on the tapes, only strengthens the prosecutor’s potential case. “

Under New York law, sexual abuse in the third degree is:

A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter’s consent; except that in any prosecution under this section, it is an affirmative defense that (a) such other person’s lack of consent was due solely to incapacity to consent by reason of being less than seventeen years old, and (b) such other person was more than fourteen years old, and (c) the defendant was less than five years older than such other person

“I’ve had cases where victims or witnesses didn’t seem credible, and we made decisions accordingly, but that’s not what happened here. Law enforcement officials had a recording where Weinstein basically admits to the assault, but they walked away from the case anyway,” LawNewz legal analyst Ronn Blitzer, a former New York prosecutor said. “It looks like Weinstein paid her off to walk away and go on the record taking back her allegations, but that didn’t happen until after the case was dropped.”

Two sources told The New Yorker that they had “no reason to doubt Gutierrez’s account” of what happened. The Manhattan District Attorney’s office declined to press charges.  They released a statement:

“This case was taken seriously from the outset, with a thorough investigation conducted by our Sex Crimes Unit. After analyzing the available evidence, including multiple interviews with both parties, a criminal charge is not supported.”

The New Yorker reported that Gutierrez signed a “highly restrictive” nondisclosure agreement in return for some kind of monetary settlement. What’s more, she was apparently made to sign an affidavit stating that “the acts Weinstein admits to in the recording never happened.” Weinstein has denied the most recent allegations.

The bottom line is that even if the complainant (Gutierrez) had credibility problems,  there was more than enough to move forward with at the very least a misdemeanor case against Weinstein.

“My guess is that the DA could have followed through on misdemeanor charges but chose not to.  This is likely because it was such a high profile case and the DA could really only ultimately see success on misdemeanor charges at the end of the day. They may have not wanted to open that can of worms,” LawNewz legal analyst and criminal defense attorney Misty Marris said.

So ask yourself, is not wanting to “open a can of worms” a good reason not to prosecute? I don’t think so, especially given the reality that more victims may have fallen prey to Weinstein’s alleged harassment. Sadly, the statute of limitations for misdemeanors likely ran out for this crime, this time.

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