Harvey Weinstein Arraigned on Rape Charges By Michael Joseph on June 01, 2018

On May 25, 2018, disgraced Hollywood producer Harvey Weinstein was arraigned in Manhattan criminal court on charges of rape in the first and third degrees, as well as criminal sexual act in the first degree.  The after the fact accusations of sexual assaults which occurred decades earlier is a hot topic in criminal law and whether New York's statute of limitations applies, is a question of how serious the incident actually was.  For example, most felony cases cannot be prosecuted after five years, but certain crimes, such as Rape in the first degree, which are the most egregious, have no statute of limitations and can be prosecuted at any time.

Rape in the First Degree, which is the most serious of New York's Rape Laws occurs when one engages in sexual intercourse with another person, either by (i) forcible compulsion; or (ii) the other person is incapable of consent by reason of being physically helpless (unconscious or paralyzed by a drug such as rufees) ; or (iii) is less than eleven years old; or is less than thirteen years old and the actor is eighteen years old or more. If convicted, Weinstein could face up to 25 years in prison.

In addition to criminal liability, present suits are seeking to hold certain companies  financially accountability  in civil court, where attorneys are going after Miramax, Disney and the Weinstein Co., the latter of which is now in bankruptcy. While the usual rule in New York is that companies cannot be held vicariously liable for sexual assualt because it is outside the scope of employment, companies can be held liable for negligent hiring and supervision of employees or the employer ratified (approved of) the activity. In the Weinstein case,  Weinstein’s predation was ignored or even facilitated because he was good for the bottom line. It is significant that the Weinstein Co. board of directors approved an employment agreement that required him to reimburse the company for sexual misconduct settlements and the company hired  lawyers who participated in negotiating the confidentiality of settlement agreements. There are others who were aware and helped create an environment that helped him conduct himself the way he did.

In Los Angeles, the district attorney’s office has established a Hollywood sex crimes task force to handle the influx. Yet many of the cases that have been presented to prosecutors are beyond the statute of limitations The L.A. County Sheriff’s Dept. submitted a case against Spacey that is believed to be too old to file charges. The office also declined to prosecute five cases against director James Toback, finding that all were too old, and too low-level, to bring charges now. The NYPD is investigating Toback as well.

Weinstein is also under investigation by Scotland Yard, and the L.A. District Attorney’s office is looking at five cases involving the disgraced mogul. The most likely to lead to prosecution may be an allegation that he raped an Italian model at Mr. C Beverly Hills in 2013, which does fall within the statute of limitations.

But now that New York prosecutors have made their move, L.A. District Attorney Jackie Lacey may be content to wait her turn.

Weinstein posted $1 million cash bail on May 25 and has been fitted with an ankle monitor. For now, he is not allowed to leave New York or Connecticut without the court’s permission — though he may seek approval to return to Arizona, where he has been receiving expensive therapy. He was required to surrender his passport.

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