Pros­e­cu­tors may be re­luc­tant to bring cases to court

The Guardian - - NEWS | WEINSTEIN ALLEGATIONS - Sam Levin 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 Hol­ly­wood pro­ducer – who has been ac­cused of sex­ual ha­rass­ment and rape by women across the globe – could be charged in New York state for a 2004 as­sault al­le­ga­tion de­tailed in a New Yorker in­ves­ti­ga­tion pub­lished on 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.

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 apol­o­gised for caus­ing “pain”, say­ing he is now in coun­sel­ing.

We­in­stein – who has paid set­tle­ments to at least eight women over the years, ac­cord­ing to the New York Times – could be charged with a first-de­gree 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 on to 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.”

Anne Cough­lin, a Uni­ver­sity of Vir­ginia law pro­fes­sor, said: “When you read her ac­count, it’s heart­break­ing and it sounds like a very straight­for­ward de­scrip­tion of a forcible en­counter and a crime.”

Pros­e­cu­tors could ar­gue “use of phys­i­cal force”, which would al­low for the sex­ual act felony charge, the most se­ri­ous of­fence 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 co­me­dian Bill Cosby – in New York, there would be 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.”

Vance has re­peat­edly de­fended his de­ci­sion to drop the case .

For those al­le­ga­tions cen­tring on Bri­tain, We­in­stein could face crim­i­nal pro­ceed­ings un­der the Sex­ual Of­fences Act, ac­cord­ing to one ex­pert.

Ben Jones, a bar­ris­ter who is a spe­cial­ist in the pros­e­cu­tion of sex­ual of­fences at St John’s Build­ings, said that could ap­ply to the cases in­volv­ing Ro­mola Garai, Liza Camp­bell, and Laura Mad­den, where it is al­leged they “man­aged to es­cape an ad­vance be­fore ac­tu­ally be­ing touched”.

He said: “On an in­di­vid­ual ba­sis, these cases could carry a 26-week sen­tence, longer if there were more vic­tims, and longer if there was a pro­found ef­fect on the vic­tim.”

Many claims lev­elled at Bill Cosby fell out­side the statute of lim­i­ta­tions, but New York rules dif­fer

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