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Harvey Weinstein Faces Jail Time In New York For Sexual Assault


The former Hollywood producer declined to testify in front of a Manhattan grand jury. As expected, he was indicted for sex crimes offenses.

Initially, it appeared that Mr. Weinstein would talk to the body that is investigating both two sexual assault charges and allegations that Mr. Weinstein gave hush money to other alleged victims. But attorney Ben Brafman then announced that his client would not testify, because the defense had been “unfairly denied access to critical information about this case that was needed to defend him before the grand jury” and therefore “there was not sufficient time to properly prepare Mr. Weinstein.” Mr. Brafman also said he believed the prosecution was politically motivated.

In a criminal complaint released in May 2018, Manhattan DA Cyrus Vance charged Mr. Weinstein with two counts of sexual assault. One was in 2013 and the other was in 2004.

The Statute of Limitations in New York Criminal Cases

Under Section 30 of the New York Code of Criminal Procedure, there is no statute of limitations on prosecutions involving:

  • Any A felony,
  • First degree rape,
  • First degree aggravated sexual abuse, or
  • First degree sexual conduct against a child.

But just because prosecution is possible, it does not mean that it will be easy. Sexual contact offenses are a good example. In Mr. Weinstein’s case, there is almost certainly no physical evidence of the 2004 incident, like a rape kit or even hospital admission records. The prosecutor will most likely need to rely on the alleged victim’s testimony, and that historically has been a chancy proposition unless the court allows in similar act testimony like was done in the Cosby case.

Historically, it is very hard to meet the burden of proof (beyond a reasonable doubt) with little more than a he-said, she-said exchange.  That may be changing with the #MeToo movement. Still, the consent issue will loom large. Mr. Brafman has indicated that his client was in a long-term relationship with each woman. That does not necessarily mean that the women gave consent on these particular occasions. Yet such a relationship does make lack of consent more difficult to prove. The prosecution will seek to admit evidence of other sexual attacks- like the Bill Cosby prosecution- to show that the likelihood that this attack was consensual should not be believed.

Should I Testify Before a New York Grand Jury?

The answer is almost always “no.” Many people believe that if they can just tell their side of the story to the grand jury, the jury may return a no-bill. But that’s not the way things work, for the most part.

When people testify before grand juries, their attorneys are not present. And they do not simply “tell their stories.” They must answer the prosecutor’s questions, and these queries are calculated to indict you. Finally, grand juries almost never no-bill defendants. The battle is basically a losing one from the start.

Some New York lawyers believe that if the evidence is very weak, testifying before a grand jury may be a good idea. But the grand jury only hears one side of the story. The weakest case looks pretty strong if there is no one to oppose it. Besides, if the evidence is that weak, it’s usually better to file a motion to dismiss with the trial judge. At the very least, the prosecutor may agree to substantially reduce the charges.



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