The Manhattan District Attorney’s office, which is under fire for its handling of a sex assault allegation against Harvey Weinstein in 2015, is now urging other Weinstein victims to come forward.
In a statement, Chief Assistant D.A. Karen Friedman Agnifilo blasted Weinstein’s “pattern of mistreating women,” saying it was “disgraceful and shocks the conscience.”
“Any individual who feels that she may have been the victim of a crime by this person in Manhattan is strongly encouraged to contact our Office’s Sex Crimes Hotline at (212) 335-9373,” Agnifilo said.
The office is taking criticism following a devastating story in the New Yorker, which detailed numerous incidents of sexual harassment and alleged rape. The story cited the case of Ambra Battilana Gutierrez, who told New York police in March 2015 that Weinstein groped her at his Tribeca office. Gutierrez agreed to wear a wire, and captured Weinstein saying “I’m used to that,” and urging her to join him in his hotel room.
Police sources cited in the story say the case could have been charged as sexual abuse in the third degree, a misdemeanor. One police source was livid that the D.A.’s office opted not to file a charge.
In the statement, Agnifilo defended the decision not to prosecute, saying police had failed to consult with prosecutors before the recorded conversation took place.
“While the recording is horrifying to listen to, what emerged from the audio was insufficient to prove a crime under New York law, which requires prosecutors to establish criminal intent,” Agnifilo said.
The statute of limitations on misdemeanors in New York is two years, meaning that even if the D.A.’s office changed its mind it would be too late to bring charges.
However, the New Yorker story also includes an allegation that Weinstein forced an actress, Lucia Stoller, to perform oral sex at his office in 2004. The story does not indicate that she went to the police. Conceivably, that could prosecuted as a criminal sexual act in the first degree, a Class B felony, which does not have a statute of limitations in New York state. The D.A.’s office declined to comment on that case.
“It could be prosecuted any time you get the evidence,” says Bennett Gershman, professor at the Pace University School of Law. “From a practical standpoint, you have all the obstacles in terms of faded memories, lack of forensic evidence… All those issues would be on the table. It’s just a question of what the facts prove and whether or not the prosecutor has enough evidence to go ahead, and whether the prosecutor wants to.”
Much of Weinstein’s alleged misconduct is said to have taken place at the Peninsula Hotel in Beverly Hills. However, no agency has submitted a complaint against Weinstein to the Los Angeles County District Attorney’s office, a spokesman said.
California recently amended the law to eliminate the statute of limitations for felony sex crimes. However, that change did not apply retroactively. The previous limit was 10 years.
Any confidential settlements with victims would not prevent prosecutors from bringing a charge, but it could make it difficult to win a conviction, says Laurie Levenson, a professor at Loyola Law School in Los Angeles. A jury might be less likely to accept the word of someone who took a payment, she says.
“We don’t know what we don’t know,” she says. “There could be other victims who come forward… Prosectors could very well be looking at the list of other actresses he worked with.”
Beyond statutory issues, the Weinstein Company reportedly had employees sign non-disclosure agreements about working for the indie film and television studio. Lawyers say that criminal prosecutors would likely be able to get around those agreements to compel witnesses to testify.
“An NDA is not going to trump law enforcement’s interest in obtaining the information that they’re looking for,” said Benjamin D. Andreozzi, the principal attorney at Andreozzi & Associates, P.C., and a lawyer who has worked on sexual abuse cases. “Any subpoena will trump any contractual agreement.”
Employment attorneys said that there are takeaways from the allegations against Weinstein, namely that safeguards that were put in place to prevent employees and contractors from having their rights trampled over failed.
“It’s unlikely that he was the only person who knew about what he was doing,” said Matt Oster, a partner at Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP. “How could all of this happen in a complete vacuum? More likely, there were a number of people who knew what was going on. He was a powerful man, they were intimidated, and they let it happen. It was a complete breakdown of the system.”
Brent Lang contributed to this report.