Could Harvey Weinstein go to jail?
Harvey Weinstein could face five to 25 years in prison on sexual assault charges if the latest abuse allegations are tried in criminal court, legal experts said.
The embattled Hollywood producer – who has been accused of sexual harassment and rape by women across the globe over the last week – could be charged in New York state for a 2004 assault allegation detailed in a New Yorker investigation published Tuesday.
Legal experts and law enforcement sources said that the claims described by Lucia Evans, a former aspiring actor, rise to the level of a felony charge under New York laws. However, because a criminal conviction could be difficult to achieve, prosecutors may be reluctant to bring a case in the first place.
Questions about the potential legal consequences facing the 65year-old film producer have swirled since the New York Times published a piece last Thursday alleging that Weinstein sexually harassed women and made unwanted advances for nearly three decades. The scandal dramatically ex-
panded this week when the reporter Ronan Farrow published detailed allegations of rape and assault and released an undercover police recording of Weinstein appearing to confess to assault.
Weinstein and his lawyers said he denied many of the allegations in the New York Times and have threatened to sue the newspaper. His spokesperson said he “unequivocally denied” claims of nonconsensual sex in the New Yorker piece, and Weinstein has apologized for causing “pain”, saying he is now in counseling.
The fallout has already been extraordinary. Weinstein was fired from his company and high-profile actors and directors who have worked closely with the producer have strongly condemned him and expressed support for his growing list of accusers, which includes Angelina Jolie, Gwyneth Paltrow and Cara Delevingne. The actors Léa Seydoux and Romola Garai and the model Zoë Brock have since detailed to the Guardian their own accounts of alleged sexual harassment, and Weinstein’s wife announced Tuesday that she was leaving him.
Weinstein – who paid settlements to at least eight women over the years, according to the New York Times – could be charged with a firstdegree felony for a “criminal sexual act” for allegedly forcing Evans to perform oral sex on him in 2004 in a New York City office.
“As she objected, Weinstein took his penis out of his pants and pulled her head down onto it,” according to the New Yorker. Evans, in college at the time, told the magazine that she was there for a work meeting. “I said, over and over, ‘I don’t want to do this, stop, don’t.’ I tried to get away,” she recounted. “He’s a big guy. He overpowered me.”
“When you read her account, it’s heartbreaking and it sounds like a very straightforward description of a forcible encounter and a crime,” said Anne Coughlin, a University of Virginia law professor.
Prosecutors could argue “use of physical force”, which would allow for the sexual act felony charge, the most serious offense available for non-consensual oral sex. While the statute of limitations in many states prevents old rape and assault cases from going forward in criminal court – as was the case with most allegations against the disgraced comedian Bill Cosby – in New York, there is no time limit on bringing a criminal sexual act charge in the Evans case, according to multiple experts.
The odds, however, are still low that the prosecutor with jurisdiction, the Manhattan district attorney Cyrus Vance Jr, will move forward.
“I don’t think he’s going to bend to political pressure,” said Lowell Sidney, a former New York City prosecutor. “As much as what [Weinstein] did is deplorable, I don’t think they are going to charge a crime that is unlikely to result in a conviction.”
Vance has faced significant scrutiny this week for declining to prosecute Weinstein in an alleged groping case, despite audio of the producer in effect admitting it while talking to the model who accused him. When she asked him why he touched her breasts, he responded: “I’m sorry” and “I’m used to it.”
New York police said this week that the recording “corroborates the acts that were the basis for the victim’s complaint”. Vance has repeatedly defended his decision to drop the case, saying he did not have enough evidence and claiming a $10,000 donation from a Weinstein attorney had no influence on his office’s decisions.
In the Evans case, it would be an uphill battle to bring a case 13 years after the incident. But even without forensic evidence or other physical evidence, prosecutors could argue the case based on Evans’ testimony and by seeking to establish that Weinstein had a “pattern” of similar behavior, said Corey Rayburn Yung, a University of Kansas law professor.
“There have certainly been cases brought to trial with less,” he said, but added: “These are often hard cases to win.”
If there were a criminal trial, Weinstein’s defense lawyers would probably try to aggressively attack his accuser’s credibility and seek to argue that the incident was consensual.
“The misogyny in the law and in the culture has made it exceedingly difficult to win convictions,” said Coughlin.
A plea deal could be possible in this kind of case, but a conviction after trial would be punishable by a sentence of five to 25 years behind bars in New York.
“He should be prosecuted and held accountable to the fullest extent of the law,” said Shaunna Thomas, co-founder of UltraViolet, a women’s advocacy group that flew a banner over the Hollywood sign this week, which read: “Hollywood: Stop Enabling Abuse.” “He needs to be stopped and a message needs to be sent to everyone, not just people in Hollywood, that this is unacceptable ... and illegal.”
If you have stories to share about Weinstein or sexual misconduct in Hollywood, contact sam.levin@theguardian.com