Articles Posted in rape and sexual assault

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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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The New York District Attorney’s Office recently announced that a Manhattan grand jury has indicted Harvey Weinstein for additional sexual assault charges relating to a third complainant. Specifically, Mr. Weinstein is facing an additional charge of Criminal Sexual Act in the First Degree (Penal Law Section 130.50). Mr. Weinstein was already facing a charge of Criminal Sexual Act in the First Degree based upon the allegation that he had forced a different woman to perform oral sex upon him against her will, and a separate count of Rape in the First Degree for allegedly raping a second complainant. Interestingly, he is also now facing two counts of Predatory Sexual Assault (Penal Law Section 130.95). These new charges significantly alter the forecast for Mr. Weinstein and seriously hamper his defense for tactical reasons discussed below.

Predatory Sexual Assault charges are very serious Class A-II felonies. They carry mandatory minimum prison sentences of ten years in jail, and a conviction for this crime carries a mandatory maximum sentence of life in prison. (Thus, for example, a person sentenced to an indeterminate prison sentence of ten years to life would be eligible for parole after roughly ten years, and if granted parole would then be on parole for the rest of his life.) These charges can apply in a variety of circumstances, but here, they have been applied because he is accused of committing the crimes of Rape in the First Degree or Criminal Sexual Act in the First Degree against multiple people. See Penal Law Section 130.95(2). Basically, Mr. Weinstein would be convicted of this charge if it is proven that he in fact sexually assaulted more than one of the complainants. (There are two Predatory Sexual Assault counts that presumably apply to different combinations of complainants in this matter).

These charges have an important practical effect on the case (notwithstanding these potential penalties). Specifically, in order to get convictions on these charges, the prosecutor would now have to prove at trial that Weinstein assaulted more than one of the three current complainants in the case. It might at first seem that the prosecutors have made their jobs more difficult by adding these charges, but in actuality, this new evidentiary necessity thwarts an anticipated defense strategy for trial severance.

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18 USC Section 2423

Federal criminal law prohibits a wide range of activities relating to transporting people and/or traveling across state lines or internationally for the purpose of engaging in illegal sexual activity. Specifically, 18 U.S.C. § 2423 prohibits four types of activities and carries very severe penalties.

First, 18 U.S.C. § 2423 makes it a felony punishable by a minimum of 10 years in prison (and by as much as life in prison) to “knowingly transport[] an individual who has not attained the age of 18 years in interstate or foreign commerce… with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense.” This provision obviously applies to those engaging in the human trafficking of underage prostitutes, and also potentially applies to an adult who drives or attempts to drive a minor across state lines so that he or she can have sex with that minor in another state. It could also apply to people who purchase bus or plane tickets for minors to travel into the U.S. or across state lines for the purpose of engaging in illegal sex.

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Understanding the Weinstein indictment and the next steps

According to numerous reports, Harvey Weinstein has been indicted on charges of Rape in the First Degree, Rape in the Third Degree, and Criminal Sexual Act in the First and Third Degrees. The first-degree charges are Class B violent felonies, meaning that they are punishable by a minimum of 5 years and a maximum of 25 years in prison. Rape in the First Degree (Penal Law Section 130.35) applies to cases in which defendants allegedly use forcible compulsion (physical force or the threat of physical force or harm) to engage in non-consensual vaginal intercourse. Criminal Sexual Act in the First Degree (Penal Law Section 130.50) applies to cases in which the defendants have allegedly used forcible compulsion to non-consensually penetrate mouths or anuses with their penises. (Thus, the distinction between “Rape” and “Criminal Sexual Act” under New York criminal law is the orifice being penetrated.) The third-degree varieties of these charges most commonly are applied in situations where a person is “incapable of consent,” meaning physically helpless (i.e. asleep or intoxicated). These third-degree charges are Class E felonies without mandatory minimum prison sentences.

It should come as no surprise that Weinstein was indicted given that he was arrested and preliminarily charged with these same crimes. Indeed, an indictment by the grand jury was basically a sure thing once the decision to arrest Weinstein was made. Weinstein could have testified before the grand jury in his own defense but that would have been a tactical mistake. A grand jury presentation in a case like this normally involves a prosecutor simply calling the complainant to testify under oath before the grand jurors about the crime. A defendant being indicted (for any crime, not just rape and sexual assault) does not get to listen to the witnesses testifying against him in the grand jury, nor does his attorney have the right to cross-examine those witnesses or make arguments to the grand jury. However, by testifying before the grand jury, Weinstein would have subjected himself to being cross-examined by a prosecutor under oath. That decision would have locked him into a version of events that he could not later modify or correct for trial. Equally problematically, it would have given the prosecutor an opportunity to hear Weinstein’s trial testimony prior to trial. This would have afforded the prosecutor months (or maybe even years) to prepare a scathing cross-examination for trial after having a “practice round” with him in the grand jury. Given that the odds of prevailing at the grand jury are normally terrible for a defendant – and probably especially so for Weinstein given the publicity surrounding his situation – there was realistically very little for Weinstein to gain from testifying before the grand jury. Most defendants understandably decline to do so.

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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.

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