Articles Posted in rape victims

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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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After an incredibly long period of deliberation – 52 hours – a Pennsylvania jury recently announced that it could not reach a unanimous decision regarding any of the criminal charges against Bill Cosby involving his alleged sexual assault of Andrea Constand. The judge was forced to declare a mistrial and the prosecutor has already declared that their office intends to retry the case with a new jury. Of course, this now begs the questions: 1) what went wrong for the prosecution, and 2) what could they do differently to get a conviction? Matthew Galluzzo, a criminal defense attorney and former Manhattan sex crimes prosecutor, offers a few thoughts on the subject.

First and foremost, sex crimes cases involving acquaintances are among the most difficult cases in which to secure convictions. Some talking heads in the media seem to think that this case should have been an easy conviction but that presumption simply belies the reality of what happens in criminal court. These types of cases are inherently challenging for prosecutors for several reasons that were at issue here.

To begin, these “he said/she said” sexual assault cases depend enormously on the credibility of the accuser, and the defense attorneys did everything that they should have done as advocates for their client to raise doubts about Ms. Constand. First, they highlighted her inconsistent statements to law enforcement about the incident. Nothing torpedoes a sex crimes case faster than inconsistent reports from the accuser. After all, inconsistent statements also tend to be made more often by liars than by those telling the truth. Inconsistent statements by the complainant suggest that the complainant has little respect for the truth and thus cannot be trusted to tell it at trial under oath. They also tend to suggest that the complainant has a nefarious agenda that causes him or her to “tailor” her testimony to her audience be perceived more favorably or to increase his/her chances of success. Understandably, defense attorneys always pounce on evidence that suggests those things and they did in this case. Specifically, they argued (as they should have) that the complainant was an attention-seeking, money-grubbing liar who had attempted to minimize her prior contacts and relationship with Cosby when initially making her report to law enforcement in an obvious effort to be perceived more favorably by them. They further argued that she had had a consensual romantic relationship with Cosby and only made a report to police when she did not profit from the relationship in the way that she had hoped.

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On June 15, after over thirty hours of deliberations and several requests for read back of testimony, the Cosby jury indicated that it was deadlocked. Matthew Galluzzo, a criminal defense attorney and former Manhattan sex crimes prosecutor, tweeted the night before that he expected the jury to hang (meaning, to be deadlocked). The judge told the jury to continue deliberating (this is called "giving an Allen charge") and denied a defense motion for a mistrial as being premature. However, Mr. Galluzzo expects the jury to be unable to reach a verdict.

In an American criminal case, the jury's decision as to a particular charge must be unanimous, meaning that all twelve jurors must agree as to the verdict (guilty or not guilty) for a specific charge. A jury can convict unanimously on some charges and acquit unanimously on other charges in the same trial (and that happens quite frequently). A jury indicates to the court and judge that it has reached a verdict by sending out a written note that they have reached a verdict, and the jury emerges to announce the verdict in the courtroom.

Sometimes, as is the case in Cosby's trial, a jury sends out a note indicating that the jury cannot agree as to a particular charge (or any charges). Typically, a judge will then tell the jury that they should continue to deliberate. There is a very specific text that judges are usually required to read back to their deadlocked juries, and this text is typically referred to as an "Allen charge" (based upon a Supreme Court case with that name). An Allen charge is meant to encourage the jury to continue to try to reach a unanimous verdict, and reminds the jurors of the importance of arriving at a conclusion in light of the interests of the parties and the time and resources already spent trying the case.

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The attorneys and former Manhattan prosecutors at Galluzzo & Arnone have defended countless individuals arrested and accused of sexual assault crimes, from Class B felonies like Rape in the First Degree to Class B misdemeanors like Sexual Abuse in the Third Degree. Of course, our primary concern has always been to exonerate our clients or negotiate the best outcome under the circumstances. However, we are also careful to counsel our clients on the fact that, just because a criminal case has been resolved favorably, the battle may still not be over. Civil lawsuits for sexual assault and rape can arise and pose significant problems for those arrested for assault even after the criminal case has been put to rest. This is especially true where the accused are wealthy and/or famous, as the complaining witnesses (or “victims”) often see an opportunity for a payday. Indeed, many of the people who are sued for rape and sexual assault in New York are high net worth individuals (very successful professionals and investors) or celebrities (such as athletes or entertainers).

In New York civil law, rape, sexual assault and battery are intentional torts (or cause of action) which have one-year statute of limitations, meaning that any such lawsuits must be brought within one year from the date of the alleged violent act. (Note that there is no such thing as battery in New York criminal law – that word has only meaning in the New York civil law context). It should be noted that this statutory period is extended to 5 years, or one year from the termination of the criminal action, in civil cases arising out of various sexual criminal acts.

A guilty plea to a sexual assault case in criminal court can make it especially easy for a victim to pursue a lawsuit against the defendant. After all, a guilty plea is an admission under oath that the assault occurred which can be used against that criminal defendant in a civil lawsuit. After a guilty plea, it is effectively impossible for a criminal defendant to deny that he is liable for a sexual assault against the victim in a civil lawsuit without committing the crime of perjury. In these situations, the only issue to be determined in a civil lawsuit is the amount of money due to the victim, since liability is effectively admitted to.

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Matthew Galluzzo, a former Manhattan sex crimes prosecutor, recently appeared on MSNBC to talk about whether the women currently accusing Donald Trump of sexual assault should be discredited on account of the delay in their reporting. The link is available here:

http://www.msnbc.com/msnbc-news/watch/why-sex-assault-victims-sometimes-delay-reporting-787086915704

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Rape and sexual assaults involving doctors and mental health providers.

Under New York law, every sexual crime against another person involves the element of a lack of consent by the victim. A minor may be too young to legally consent to sexual contact, a person may be too intoxicated to consent to sexual contact, and a person may be too mentally incapacitated to offer consent. In addition, though, a patient of a health care provider or a mental health care professional cannot legally consent to certain types of sexual contact under certain circumstances, specifically, during clinical sessions or treatment. Thus, certain types of sexual contact (as described in Penal Law Sections 130.25, 130.40, 130.65-a, and 130.55) cannot happen between a patient and a health care or mental health care professional during a treatment session, lest they be charged as serious felony crimes.

Penal Law Section 130.05 outlines the different definitions of consent. Subsection (h) specifically applies to health care and mental health care providers, and states the following:

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Every year the FBI and federal law enforcement investigates a number of serious crimes that were alleged to have occurred onboard cruise ships. State police occasionally investigate these sorts of crimes, but generally speaking, crimes that occur on the high seas fall under federal jurisdiction (if pursued by American law enforcement at all).

The authority of the FBI to investigate criminal offenses and enforce laws of the United States on cruise ships on the high seas or territorial waters of the United States depends on several factors: The location of the vessel, the nationality of the perpetrator or victim, the ownership of the vessel, the points of embarkation and debarkation, and the country in which the vessel is flagged all play a role in determining whether there is federal authority to enforce the laws of the United States.

The principal law under which the U.S. exercises its Special Maritime and Territorial Jurisdiction is set forth in Section 7 of Title 18 of the U.S. Code. This statute provides, in relevant part, that the U.S. has jurisdiction over crimes committed on a ship if:

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News reports of high school teachers engaging in illicit acts with underage students are becoming almost routine and regular nowadays. The advent of modern smartphones, the prevalence of texting, Snapchat, and the rise of social media platforms have perhaps facilitated these problematic relationships. Regardless, a teacher accused of having engaged in such inappropriate relationships faces a potential litany of terrible consequences including permanent criminal convictions, sex offender registration, public humiliation and vilification, loss of career and professional licensure, and civil lawsuits for damages. It is thus absolutely critical that those educators accused of such crimes retain competent counsel to guide them through these minefields.

A typical serious charge in these scenarios is Rape in the Third Degree (Penal Law Section 130.25[2]). That charge makes it a Class E felony for a person over the age of twenty-one years to engage in sexual intercourse with another person less than seventeen years old. This is a strict liability crime and there is no need for the prosecutor to demonstrate any forcible compulsion on the part of the elder person. A conviction for this charge – sometimes referred to as "statutory rape" – carries serious potential jail sentences and mandatory registration as a sex offender. Similarly, Criminal Sexual Act in the Third Degree (Penal Law Section 130.40[2]) makes it a Class E felony for a person older than twenty-one to engage in oral or anal sexual contact with a person under the age of seventeen.

Rape in the Second Degree (Penal Law Section 130.30[1]) is a more serious Class D felony and applies to individuals over the age of eighteen that engage in sexual intercourse with people younger than fifteen years old, and Criminal Sexual Act in the Second Degree (Penal Law Section 130.45[1]) also makes it a Class D felony for a person older than eighteen to engage in oral or anal sexual contact with a person younger than fifteen.

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Recently, the federal government’s Department of Education announced that it was formally investigating 55 American institutions of higher education for possible violations of Title IX’s rules relating to the prevention and investigation of sexual assault complaints on campus.Some of those investigations were spurred by complaints made by students directly to the Department of Education, while others were initiated in response to press reports of improperly-handled sexual assault allegations. Four New York universities made the list (available in full here): CUNY Hunter College, Sarah Lawrence College, SUNY Binghamton, and Hobart and William Smith Colleges. Other notable schools include Harvard, Dartmouth, Princeton, and UC Berkeley. NYC’s Columbia University was also recently the subject of three separate but related complaints to the federal government signed on by 23 current and former students that claim they were victimized on campus and then systematically mistreated by the administration.

The Obama administration has recently taken notice of the epidemic of rape and sexual assault on American campuses; shockingly, it has been reported that 1 in 5 female college students are sexually assaulted during their time at university. This number is incredibly alarming and has attracted the attention of numerous legislators seeking additional funding to investigate and combat the problem. Other legislators have proposed legislation requiring college administrators to report all allegations of sexual assault on campus to local law enforcement, to prevent the problem of school administrators subtly and sometimes not-so-subtly discouraging students from making the reports themselves. In further response to the growing awareness of this massive problem on American campuses, a task force was convened in January 2014 that proposed a number of protocol suggestions for administrations to reform their policies for handling sexual assault complaints.

Title IX is federal legislation designed to prevent gender discrimination in schools and universities that receive federal funding. Most people familiar with Title IX have heard of it because of its widespread impact upon college athletics. However, the legislation is actually much broader than that, and most certainly creates a duty on the part of school administrations to protect female students from sexual assault on campus.