Jeff Herman Inteviewed by ABC7 WJLA – Prosecutors may have few options for pursuing Weinstein charges

Jeff Herman Inteviewed by ABC7 WJLA – Prosecutors may have few options for pursuing Weinstein charges

by Stephen Loiaconi – Friday, October 13th 2017

*Photo Credit WJLA

Police in multiple jurisdictions are reviewing their files as sexual accusations against Hollywood producer Harvey Weinstein continue to pile up, but legal experts say opportunities to pursue criminal charges against him for claims that in some cases date back decades could be limited.

“There’s definitely the possibility of criminal charges,” said attorney and former ESPN legal analyst Adrienne Lawrence. “It really just depends on the statute of limitations and where the alleged events occurred.”

The New York Times revealed last week that Weinstein, co-founder of the Weinstein Company and producer of many Oscar-winning films, had reached settlements with at least eight women since 1990 over claims of sexual harassment or unwanted physical contact.

In most instances, young actresses said they were called in to meet with Weinstein, who greeted them with sexual advances, propositions of massages, or other forms of mistreatment.

In a statement to the Times, Weinstein apologized vaguely for behavior that “has caused a lot of pain.” However, his attorneys said he denies many of the specific allegations.

In the wake of the Times report, several prominent actresses, including Gwyneth Paltrow and Angelina Jolie, came forward to share similar experiences with the producer. Paltrow said she rejected Weinstein and then-boyfriend Brad Pitt confronted him about it, but she was warned not to tell anyone else.

Additional New York Times reporting and a lengthy New Yorker article published this week revealed an even more extensive pattern of alleged misconduct with 30 women, including at least three allegations of rape. Actress Rose McGowan has since leveled another rape accusation.

The Times had reported that Weinstein paid McGowan a $100,000 settlement in 1997 after an incident at a hotel during the Sundance Film Festival, but the initial report did not provide details.

In a statement to the New Yorker, Weinstein adamantly denied he raped anyone.

“Any allegations of non-consensual sex are unequivocally denied by Mr. Weinstein,” a representative said. “Mr. Weinstein has further confirmed that there were never any acts of retaliation against any women for refusing his advances. Mr. Weinstein obviously can’t speak to anonymous allegations, but with respect to any women who have made allegations on the record, Mr. Weinstein believes that all of these relationships were consensual.”

The New Yorker article describes Weinstein’s behavior as “an open secret to many in Hollywood and beyond.” Some actors claimed to have heard rumors about it, but many who worked closely with Weinstein denied having any clue. Other Weinstein associates and employees have said they were aware he was a lecherous womanizer, but they did not know he was allegedly harassing and assaulting women.

The accusations have recast several past public comments about Weinstein in a different light.

During a 1998 interview, Paltrow and David Letterman bantered about Weinstein coercing her to do things.

While announcing Oscar nominees in 2013, Seth MacFarlane joked that the five Best Actress nominees “no longer have to pretend to be attracted to Harvey Weinstein.” MacFarlane explained on Twitter Wednesday that actress Jessica Barth had confided in him about Weinstein’s treatment of her and “I couldn’t resist the opportunity to take a hard swing in his direction.”

Similar jokes surfaced in 2012 on the NBC sitcom “30 Rock,” where two lines referenced Weinstein making sexual advances on an actress.

“It kind of indicates that at least some people knew about it in the industry,” said former prosecutor Debbie Hines.

Weinstein has quickly lost his job and his reputation—he told photographers outside his house Wednesday that he is “not doing okay” and needs help—but it remains unknown whether he will face additional legal consequences for his alleged behavior.

In 2015, the NYPD investigated a claim by an Italian model that Weinstein had groped her. The case went as far as setting up a sting to record him cajoling her to go to a hotel room with her, but Manhattan District Attorney Cy Vance said prosecutors determined there was not enough evidence to file charges.

The statute of limitations for forcible touching in New York is two years so it is too late to revisit that case, but the state has no statute of limitations for first-degree sexual assaults committed since 2006. Most other states have similar laws that could leave the door open to criminal charges based on the severity of the offense and when it occurred.

The NYPD is now reviewing its files for any other reports of harassment or assault by Weinstein, and the Associated Press reported special victims unit detectives have been instructed to interview any potential victims.

Police in London are reportedly looking into an alleged sexual assault involving Weinstein in Merseyside in the 1980s. The incident was reported to local authorities there on Wednesday.

Los Angeles police told the AP they have no open investigations of Weinstein. The Summit County, Utah Sheriff’s Office said it had no reports of calls involving Weinstein or McGowan in Park City, where the 1997 rape is alleged to have occurred.

According to the Daily Mail, the FBI has opened its own investigation into Weinstein’s conduct. The site reported that authorities feared Weinstein would travel to Europe for rehab and never return, becoming a Roman Polanski-esque fugitive, but it appears he will be getting treatment in Arizona instead.

The Bill Cosby case, where dozens of women came forward with similar allegations but prosecution was only possible in one instance that resulted in a hung jury, provides a preview of the challenges investigators could face in pursuing charges.

“These cases are tough to prosecute anyway because they’re the classic he said-she said,” said Jeff Herman, an attorney who specializes in civil sexual abuse cases.

In some states, the allegations of misconduct with other women might be admissible, and that could help establish a persuasive pattern of behavior for the jury.

“If it’s a one-off case where you’ve got one person accusing another, it’s much tougher,” he said.

However, Hines noted one significant difference.

“There are potential former and perhaps current employees who could be used as witnesses,” she said.

If the allegations are true, there would be assistants and staffers involved in scheduling the meetings, making hotel reservations, and handling other logistics. Even if they did not witness a crime, they could corroborate or discredit elements of an accuser’s story.

Alternately, if they knew Weinstein was preying on these women, those employees could face charges themselves.

“If it’s shown that they knew what was going on…there’s always accomplice liability and that’s something that could be open here,” Lawrence said.

Similar issues could derail civil lawsuits, particularly over some of the older allegations. The burden of proof is lower, but sexual harassment suits typically have short statutes of limitations and most of the current claims may fall outside them.

“His risk is the criminal liability,” Hines said. “He’s somewhat protected under the law on the civil liability.”

Civil claims involving more recent incidents could also ensnare Weinstein’s colleagues. According to TMZ, his contract at the Weinstein Company included a clause allowing him to settle sexual harassment lawsuits with his own money, suggesting they may have known of his behavior.

“When you get these powerful men out there, there usually are enablers,” Herman said, though he added it is not yet clear what others knew about Weinstein.

Before deciding to file a lawsuit, Lawrence said the victims will need to measure their financial return against the emotional distress a trial would bring, and several of them are already pretty wealthy.

“A lot of these women, they don’t need the money necessarily,” she said.

Like Taylor Swift’s recent $1 judgment in a lawsuit against a radio host who groped her, the alleged victims could sue to make a point or they could conclude the point has already been made.

“Having this out in the media may be enough for them to feel vindicated to some extent,” Lawrence said.

The harsh spotlight shining on sexual harassment in Hollywood as a result of the Weinstein allegations has already spread to others.

After actor Ben Affleck, who worked with Weinstein on several films, issued a statement condemning the producer’s behavior, he was pressed to apologize for grabbing the breast of Hilarie Burton during a 2003 MTV interview. A makeup artist has also come forward accusing him of groping her at a party in 2014, but he has not responded to that charge.

Others, including Matt Damon, have been accused of trying to quash previous stories that would have exposed Weinstein’s actions. Damon disputes that characterization and insists he was unaware of what Weinstein allegedly did.

McGowan has also stated an Amazon executive dismissed her claims about Weinstein.

“I told the head of your studio that HW raped me,” she said in tweets directed at Jeff Bezos. “Over and Over I said it. He said it hadn’t been proven. I said I was the proof.”

An executive at Amazon Studios, which is producing two new series with the Weinstein Company, was placed on leave this week over his own alleged crude behavior. Isa Hackett, daughter of author Philip K. Dick and a producer of Amazon’s “Man in the High Castle,” claimed programming chief Roy Price made lewd remarks to her at a Comic-Con event in 2015.

Some see the allegations against Weinstein as the beginning of a change in a Hollywood culture that excuses and ignores sexual harassment, but others point to past high-profile cases including Cosby, Roger Ailes, and Bill O’Reilly that failed to instigate a sustained cultural shift.

While there are some similarities to the Cosby case, Lawrence noted one distinction that could mean the difference between a deadlocked jury and a conviction if Weinstein is ever charged. Cosby was a beloved father figure for a generation of TV viewers, but Weinstein is a producer who the public has little personal investment in.

“The way in which a jury or society sees these two men is very different,” she said.

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