An Analysis of the Harvey Weinstein rape investigation

The viability of the Paz de la Huerta rape case against Harvey Weinstein

Recently, numerous media outlets have published stories suggesting that the NYPD has built a “viable case” of rape against Harvey Weinstein based upon a complaint made by actress Paz de la Huerta. (Specifically, according to a recent Vanity Fair article, the actress claims that Harvey Weinstein raped her in her apartment on two occasions in 2010). Given that dozens of women – mostly Hollywood actresses – have now publicly complained of sexual misconduct by Harvey Weinstein, the public’s desire to see Weinstein punished is incredibly high. The Manhattan District Attorney, Cy Vance, is deservedly under considerable pressure to bring Weinstein to justice. After all, his office made a basically indefensible decision to dismiss a strong sexual assault case against Weinstein based upon a timely and straightforward complaint by a victim which was corroborated by an audiotaped confession and a prompt outcry to a friend. This decision is especially ripe for criticism since Weinstein’s defense attorneys donated money to Vance’s re-election campaign.

However, bringing this new rape case against Weinstein may actually be far more difficult and problematic than this prior sexual assault case against Weinstein that the D.A.’s office chose not to prosecute. What follows is the objective and detached opinion of Matthew Galluzzo, a criminal defense attorney and former prosecutor in the Sex Crimes Unit of the Manhattan District Attorney’s Office.

The average layperson would normally and reasonably describe a rape as a nonconsensual sexual act of penetration. However, New York criminal law is slightly more specific than that. First, the New York Penal Law only defines rape as involving the non-consensual penetration of the penis into the vagina (see Penal Law Section 130.00[1]); nonconsensual oral sexual contact and nonconsensual anal sexual contact are defined as “criminal sexual acts,” though the penalties are just as serious (see e.g. Penal Law Sections 130.40, 130.45 and 130.50).

The issue of consent under New York criminal law is much more complicated, however. People who are unconscious (i.e. asleep or in a coma, for example), extremely intoxicated, or underage are legally incapable of consenting to sexual contact of any sort (see Penal Law Section 130.05[2]). However, there are basically only two ways for a perpetrator to commit the crime of rape (or any other non-consensual sexual act of penetration) of a conscious and sober adult: by physical force (implied or actual) (see Penal Law Sections 130.05(2)(a) and 130.00(8)), or by refusing to acknowledge a clear refusal to have sexual contact (see Penal Law Section 130.05(2)(d)).

In the case of Paz de la Huerta, her descriptions of the alleged rapes do not clearly indicate the use of physical force. To be sure, in New York, a rapist does not have to use physical force to commit the crime of rape – the threat of force can be enough to make the act non-consensual (see Penal Law Section 130.00(8)(b)). However, Paz de la Huerta’s recitation of the first incident to her therapist (as detailed in the Vanity Fair article mentioned above) suggests that it was not physical force that caused her to be unable to resist, but her fear of his power and influence. Her therapist wrote her these words in a letter intended to memorialize this conversation: “I recall you telling me that it felt coercive to you and that you didn’t want to have sex with him, but felt that you had to as he was a man of power and rank and you couldn’t say no to his sexual advances.” This admission is going to make this case very difficult for Manhattan prosecutors, unfortunately. Prosecutors may conclude that Weinstein’s act of pushing her onto the bed and suddenly penetrating her without warning could qualify as physical force used by Weinstein to overcome her consent… but Ms. de la Huerta’s explanation to her therapist for the reason for her inability to resist seems to undercut that contention. Without having had the benefit of speaking directly with Ms. de la Huerta, it is impossible to know for sure precisely how she has described the encounter in detail. At first blush, though, it appears at best to be a very questionable “forcible rape” as that term is described by the Penal Law.

I say “unfortunately,” because certainly we can all agree that it is abusive and morally abhorrent to take advantage of one’s position and power and influence to have sex as Weinstein is alleged to have done with Ms. De la Huerta. However, abusing one’s position to have sex with somebody is not, technically, a crime in New York (with some exceptions, for example, corrections officers cannot have sex with inmates, nor doctors with patients during treatment sessions, see e.g. Penal Law Sections 130.05(3)(e)-(h)). For example, if a man in New York were to demand that his secretary have sex with him or else be fired and she agreed because she felt compelled to do so for the sake of her job, this would be civilly actionable but not criminally prosecutable. One might describe this situation as “coercive rape,” or an “abuse of power,” but it is not a crime in New York. The author is aware of the existence of “coercive rape” statutes in the criminal codes of other countries (South Africa, for example, where the author worked briefly as a consultant on rape prosecutions). Perhaps the New York criminal code should make it illegal to use one’s power and influence to “force” a man or woman to have sex, but, for now, it does not outlaw that behavior. In sum, Paz de la Huerta may have genuinely, sincerely, and correctly feared that Harvey Weinstein would somehow ostracize her, blackball her, or ruin her chances as a movie star in Hollywood if she refused his advances. However, his taking advantage of this situation would not be criminal, either (unfortunately). The argument, if made at trial, would be more technical than many defense attorneys prefer and might infuriate some jurors, but it would be correct, too.

In the case of the second alleged rape, Ms. de la Huerta explains that she told Weinstein “no” but he continued to have sex with her nonetheless. Though it is unclear from this account whether Weinstein used actual or implied physical force to overcome her consent (it does not appear that he did according to this account), Mr. Weinstein could theoretically have been prosecuted for the crime of Rape in the Third Degree, a class E felony (Penal Law Section 130.25). That charge applies where “the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood such person’s words and acts as an expression of lack of consent to such act under all the circumstances.” (see Penal Law Section 130.05(2)(d)). A conviction for that charge does not carry a mandatory minimum jail sentence though a state prison punishment greater than one year is possible.

However, there is an insurmountable problem with this charge in this case. Unlike Rape in the First Degree (forcible rape), which has no statute of limitation, the Class E felony only has a five-year statute of limitation (see New York Criminal Procedure Law Section 30.10(2)(a) and (2)(b)). As a result, if the most serious crime alleged by Paz de la Huerta in her complaint is only a Class E felony, then this entire complaint would by now be too old to prosecute.

If the Manhattan D.A.’s Office decides to pursue rape charges against Harvey Weinstein, the defense will also have considerable ammunition. To begin, Paz de la Huerta has had her own run-ins with the criminal justice system in Manhattan. She was arrested in 2012 for allegedly assaulting another model during a drunken dispute, and the encounter does not reflect well upon either her temperament or her sobriety during that period. Additionally, the defense could credibly argue that this entire complaint was conveniently manufactured to help the actress gain publicity for herself while her career flounders. Perhaps they might even argue that Paz de la Huerta willingly had sex with Weinstein to gain an advantage in terms of landing film roles, and when those roles didn’t materialize, she decided to exact revenge by accusing him of sexual misconduct after other women had already done so. Defense attorneys will also argue that the fact that she voluntarily allowed Mr. Weinstein to come back to her apartment a second time (the second alleged rape) demonstrates that the first incident was not a rape; after all, they will argue, who would allow their rapist back into their apartment so they could to do it again? Ms. de la Huerta may in fact be a rape victim, but these are the sorts of arguments that the defense will use, and the prosecutors have probably already acknowledged that these arguments may be difficult to deal with.

The Manhattan D.A. shouldn’t be too afraid of Weinstein’s defense at trial either, though. Unlike Bill Cosby – who continues to enjoy some residual popularity among former fans despite the myriad horrifying allegations and revelations about him – nobody in America likes Harvey Weinstein. As a universally unpopular person, he will not benefit from any jury forgiveness as Bill Cosby may have in his recent trial for sexual assault in Pennsylvania (or as R. Kelly or Michael Jackson may have benefitted in the past). The negative publicity surrounding Weinstein would be an absolute nightmare for his defense attorneys. Other women could conceivably be called to testify at trial as to Harvey Weinstein’s modus operandus in committing sexual misconduct. In short, Weinstein should be deeply concerned about this investigation and it would not be impossible for this case to result in him going to state prison.

It is difficult to predict what the Manhattan D.A.’s Office will do because they are facing considerable political pressure to bring a case against Weinstein, from across the country and even from its own local police department. However, based upon the account described in the Vanity Fair article, it appears that they probably cannot in fact bring a viable case against him. Or perhaps, as a strict matter of law in its current unfortunate state, perhaps they should not.

The author, Matthew Galluzzo, is a criminal defense attorney and former Manhattan sex crimes prosecutor. He also represents victims of rape and sexual abuse and is a frequent television and news commentator on the subject of sexual assault investigations.