Could Har­vey We­in­stein go to jail?

The Guardian Australia - - News / World News - Sam Levin in San Fran­cisco

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@the­

Pho­to­graph: Yann Coat­saliou/AFP/Getty Im­ages

Har­vey We­in­stein has been ac­cused of sex­ual ha­rass­ment and rape.

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