Articles Posted in rape and sexual assault

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On October 24, The Law Office of Matthew Galluzzo PLLC successfully secured the full dismissal of misdemeanor Assault in the Third Degree, Forcible Touching, and Sexual Abuse in the Third Degree charges for a client in Manhattan criminal court. Our client, a holder of an H1B visa, allegedly groped a woman’s buttocks and punched a man in the face in a nightclub in Manhattan. The investigative team at the Law Office of Matthew Galluzzo PLLC performed its own investigation of the incident and presented its findings, which told a very different story. About three months after our client’s arrest, the Manhattan D.A.’s Office moved to dismiss all charges and our client’s arrest record was sealed. He can now move forward with his life – including his anticipated application for American citizenship – without having to worry about this unfortunate incident impeding his future.

If you or a loved one have been arrested and charged with misdemeanor assault or forcible touching in New York City, you should strongly consider contacting the experienced team at the Law Office of Matthew Galluzzo PLLC. Their lead counsel is a former Manhattan prosecutor with considerable experience representing foreign citizens, with a strong track record of success.

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In 2019, to combat the phenomenon known as “revenge porn,” the state of New York added Penal Law Section 245.15 to its list of criminal charges. Specifically, it is now a class A misdemeanor for a person to unlawfully disseminate or publish an intimate image without the consent of the person depicted in the image. This generally prevents an ex-boyfriend from humiliating an ex-girlfriend by using intimate photos taken during the relationship and sharing them with friends or posting them to the internet. So, even though the images might have been freely given during the relationship, a person is not necessarily free to distribute or dispose of those images however they want. Of course, a person could be subject to a civil lawsuit for engaging in “revenge porn” behavior as well. Depending on the circumstances, other charges might also be brought against an alleged “revenge porn” offender, including extortion, aggravated harassment, stalking, or unlawful surveillance.

The criminal charge states:

1. A person is guilty of unlawful dissemination or publication of an intimate image when: (a) with intent to cause harm to the emotional, financial or physical welfare of another person, he or she intentionally disseminates or publishes a still or video image of such other person, who is identifiable from the still or video image itself or from information displayed in connection with the still or video image, without such other person’s consent, which depicts: (i) an unclothed or exposed intimate part of such other person; or (ii) such other person engaging in sexual conduct as defined in subdivision ten of section 130.00 of this chapter with another person; and (b) such still or video image was taken under circumstances when the person depicted had a reasonable expectation that the image would remain private and the actor knew or reasonably should have known the person depicted intended for the still or video image to remain private, regardless of whether the actor was present when the still or video image was taken.

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Following her conviction at trial in the Southern District of New York for various federal charges relating to the sex trafficking of minors, disgraced Jeffrey Epstein associate Ghislaine Maxwell received a sentence of 20 years in prison. She will get credit towards that sentence for the time she has already spent in prison, and assuming she receives the maximum amount of good time credit for her behavior in custody, she will probably only serve about 85% of that sentence, or 17 years.

The question on everyone’s mind has been whether Ms. Maxwell will finally disclose the names of the other purportedly rich and powerful celebrities who engaged in illicit conduct with minors and Jeffrey Epstein. Ms. Maxwell has steadfastly refused to do that, even after Epstein’s death (to the surprise of some). Ms. Maxwell initially denied being knowingly involved in any criminal conduct, and her statement at sentencing was hardly an apology, either.

Ms. Maxwell may also have a legitimate ground for an appeal to the Second Circuit Court of Appeals. After the verdict, a juror disclosed that they had not told the Court during jury selection about having been a victim of a sexual assault. Judge Nathan (the trial judge) denied a motion for a new trial on that basis, and Maxwell will almost certainly pursue that argument on appeal.

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After a long trial followed by over forty hours of jury deliberations, Ghislaine Maxwell finally stands convicted of several federal charges relating to the sexual abuse of minors. Ms. Maxwell somewhat curiously chose not to testify in her own defense, and she now faces a sentence of up to 65 years in federal prison. Ms. Maxwell’s fight is far from over, but ultimately it will almost certainly lead to one final choice: cooperate with the government or die in prison.

After a federal conviction – by guilty plea or by jury verdict – the defendant is interviewed by a specialized officer from the U.S. Department of Probation. These officers typically have backgrounds in social work, and it is their responsibility to prepare a biography – or presentence report – for the court. The judge uses this presentence report at sentencing to understand the defendant’s life, background, and circumstances. (The Bureau of Prisons also uses this report in determining the defendant’s prison designation.) The preparation of a report can easily take two months or more, as the interview has to be scheduled, a draft report prepared, edits and objections made by both the defense and the prosecution, and a final draft with a sentencing recommendation submitted to the sentencing court.

Following the preparation of the presentence report, both the prosecution and defense prepare sentencing memoranda for the judge. Both sides make arguments about the proper application of the U.S. Sentencing Guidelines and the sentencing factors pursuant to 18 U.S.C. § 3553(a). Defense lawyers usually submit character letters from friends and family of the defendant, and sometimes the defendant also submits his/her own letter of remorse. Eventually, the sentencing court then holds a sentencing hearing at which both sides make oral arguments about the sentence and the court pronounces its decision. That sentencing hearing could be anywhere from 4 to 6 months after the conviction, though it could take even longer.

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Strictly speaking, the criminal justice system does not require that victims of crime have lawyers. Prosecutors are responsible for pursuing criminal cases against perpetrators and are generally expected to at least consider the victims’ expectations or hopes regarding the outcome. However, over the years, Matthew Galluzzo (a former Manhattan prosecutor) has represented, advised, advocated on behalf of, and assisted dozens of crime victims in a wide variety of matters – most commonly sexual assault, domestic violence, and fraud. If you or a loved one have been a victim of a crime, you might benefit from a consultation with Mr. Galluzzo for the reasons set forth in more detail below.

  1. Understanding the Process

The criminal justice system can be intimidating for a victim, so much so that many crime victims decline to even make a report or complaint. As a longtime former Manhattan prosecutor, Matthew Galluzzo can answer questions a crime victim might have about the process, including: 1) whether, and how the perpetrator will be arrested, 2) what the perpetrator might be charged with and what penalties he/she would face, 3) whether the crime victim will have to testify, and/or when and how often, 4) whether the crime victim will ever have to confront the perpetrator in court, 5) whether the crime victim’s identity will ever be known to the perpetrator, and 6) what sort of outcome the crime victim might reasonably expect. Many crime victims have found these sorts of consultations with Mr. Galluzzo to be invaluable, in that it relieves some of the stress in the process and helps them decide what course of action to take.

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The Department of Education recently released new policies and procedures for American colleges and universities to follow in investigating allegations of sexual assault and sexual harassment involving its students. Generally speaking, the new policies afford more protections for accused students than were required under the Obama-era Title IX policies, and victims’ rights advocates are already decrying the changes.

The biggest changes in the policy involve 1) granting accused students the right to cross-examine and confront their accusers (though not personally), 2) establishing that the standard of proof for a finding of guilt may be either “clear and convincing” or a “preponderance of the evidence,” (matching civil law standards, generally) , and 3) and redefining the meaning of “sexual harassment” to align with the U.S. Supreme Court’s definition: “sexual harassment” is unwelcome conduct that is “so severe, pervasive and objectively offensive that it denies a person equal educational access.” (Under the Obama administration, sexual harassment was more broadly defined as “unwelcome conduct of a sexual nature.”)

These changes will have a huge impact on Title IX sexual harassment/assault proceedings on college campuses. Previously, in connection with complaints of sexual assault to school administrators, student/complainants would give their version of events (one way or another) during an investigation and/or hearing, and the accused would have the ability to give his/her version of events. However, there would be no confronting of the witnesses by the adverse parties. Moreover, the standard of proof was so low, the administrators so risk-averse and generally sympathetic to victims, and the elements of an actionable offense were so broad that successfully defending against these accusations was exceptionally difficult. As a practical matter, accused students generally lost and were disciplined or expelled. However, many students complained that the trials were akin to the Salem witch trials, with no due process and no real chance to win. Indeed, lawsuits were filed by accused students in federal courts across the country, and so many of them persuaded courts that they had been denied due process during Title IX investigations that these changes by the current administration may have been an inevitable response to the litigation.

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Harvey Weinstein was recently convicted by a jury of two of the five charges contained in a Manhattan indictment (Criminal Sexual Act in the First Degree and Rape in the Third Degree). He will be sentenced on March 11 by the presiding judge at trial, James Burke. Weinstein faces a minimum sentence of five years in prison and a possible maximum sentence of 29 years. One can reasonably expect Weinstein to receive a sentence in the 10-15 year range, though it could be higher. We doubt he will receive a single-digit sentence, though, even in light of his advanced age and ill health.

Weinstein has a right to a direct appeal to the appellate court, in this case called the Appellate Division, First Department, based upon issues that were raised “on the record” (i.e. issues which can be pointed to in the trial transcript). The deadlines for filing and responding to an appeal are typically somewhat flexible in actual practice, as both sides routinely ask for and are awarded extensions of time to file their appellate arguments and responses. Given the complexity of this case, a reasonable estimate is that the appellate court will arrive at a decision about a year after sentencing, though it could potentially be sooner if the defense team submits their arguments quickly.

If Weinstein were to win his appeal, then he would earn a new trial on the two charges for which he was convicted. (He can never be convicted of or retried on the predatory sexual assault charges for which he was acquitted at trial.) If Weinstein loses his appeal, he could ask the Court of Appeals (the highest court in the New York State system) to hear his next appeal – this process is called “seeking leave” to appeal. Unlike the Appellate Division, the Court of Appeals is not required to hear his appeal. Typically, the Court of Appeals chooses to only consider cases with novel legal issues or cases of great importance, or cases involving issues about which lower courts in the state have disagreed. Theoretically, if the Court of Appeals denies leave, then Weinstein could seek the remedy called a writ of habeas corpus in state court, and then even pursue that type of appeal in federal court. This process of “exhausting” his appeals could potentially take several years.

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Today, Judge Steven O’Neill (who presided over Cosby’s recent sexual assault trial in Pennsylvania), sentenced Cosby to a sentence of 3-10 years in prison. The court had previously classified him as a sexually violent predator following a prior hearing. The court defended this decision by explaining that although the evidence of Cosby’s guilt had been “overwhelming,” including his own civil deposition, Cosby had refused to acknowledge his guilt or express any remorse for his actions. His attorneys had requested a sentence of house arrest, citing Cosby’s poor health and functional blindness, but the court did not agree. Cosby plans to appeal his conviction and sentence, and could conceivably stay free on bail until his appeals are resolved, though the court may deny the request that he be free pending his appeal.

This sentence is near the top end of the Pennsylvania sentencing guidelines for Cosby. Indeed, the guidelines recommended a sentence of between 22 and 36 months, and Cosby essentially got a sentence of 36 to 120 months. This case illustrates a few issues, probably, as it relates to sentencing. First, remaining defiant in the face of sentencing may feel good to a defendant, but judges hate it. The best way to get leniency is to show remorse and ask forgiveness, and the opposite is absolutely true as well. Cosby may think he is going to be vindicated on appeal, but frankly, I would bet a lot of money that he will not. So, copping an attitude like he did throughout the post-conviction and sentencing phase almost certainly did nothing but cost him a few of his precious remaining years of life in jail. Any smart defendant knows that even if he feels like he was wrongly convicted, the best thing to do at sentencing is say you’re sorry to the judge and victim. Cosby does not appear to be a smart defendant.

Second, judges are human, and this case might demonstrate that. Although he is not supposed to the evidence of Cosby’s prior alleged misdeeds and sexual assaults of other victims (some of whom testified at Cosby’s trial in support of Andrea Constand’s complaint), the judge probably factored those things into consideration in concluding that he was a sexually violent predator worthy of serious detention. It would have been understandably difficult for the judge to ignore those other purported complainants, not to mention the dozens of others who have publicly come forward.

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Last week, the criminal defense attorneys at the Law Office of Matthew Galluzzo persuaded the prosecutors at the Brooklyn DA.’s office to dismiss serious Rape in the First Degree charges levied against our client. Matthew Galluzzo, a former Manhattan sex crimes prosecutor, carefully presented to the prosecutors his client’s version of events along with evidence of the complainant’s repeated lies and motive to fabricate the allegation. The prosecutors were convinced of our client’s innocence and dismissed the charges. Our client, a foreign student earning a graduate degree in the U.S. with an F1 visa, was thus able to obtain his OPT extension after the dismissal of the charges. He is now elated to be finishing his studies and finding work in America.

If you or a loved one have been accused of rape or sexual assault, you should strongly consider contacting the experienced criminal defense attorneys at the Law Office of Matthew Galluzzo. Matthew Galluzzo, in particular, is a former Manhattan sex crimes prosecutor and nationally-recognized expert on sex crimes investigations whose opinion on pending cases has been solicited by radio, television, and print news sources around the world.

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Under New York state law, there are three degrees of rape, with Rape in the First Degree (Penal Law Section 130.35) being the most serious (a Class B violent felony). Rape in the Third Degree (Penal Law 130.25), however, may be the most common criminal charge, and it can be brought in three different ways.

Per the statute: “A person is guilty of Rape in the Third Degree when: 1. He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than seventeen years old; 2. Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old; or 3. He or she engages in sexual intercourse with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent.”

Subsection 2 is the most common charge, which involves a criminal charge being brought against an older person (21 years old or older) and a complainant younger than 17. Notably, this charge can be brought against the will of the younger party, meaning that it is not necessary for the complainant to “press charges” for the older person to be convicted. Sometimes these charges are proven without the testimony of the younger party by medical evidence or pregnancy, third party witnesses (who catch and observe the people in the act of sexual intercourse), or admissions by the older party.

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