Articles Posted in Sex Crimes

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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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A significant percentage of police reports and lawsuits alleging sexual abuse involve people accusing co-workers of having committed the offense. However, unlike complaints involving sexual abuse allegedly committed by strangers or acqutainances, these sorts of matters tend to take a more circuitous route through the court system (if they even arrive there at all). Individuals accused of sexually assault or harassing co-workers face a host of complicated issues, and need experienced attorneys wholly devoted to defending their interests and future.

Thorough investigation of these cases is the key to success. Individuals that allege that they have been assaulted or harassed by co-workers frequently (perhaps, typically) report the incident to management before they contact the police or plaintiffs' attorneys. One of the keys to defeating these allegations is by highlighting the inconsistencies in the reports. Accordingly, determining what exactly the accuser said to management – as well as to other co-workers – about the alleged incident can be crucial to undercutting the allegations later brought in a police complaint or lawsuit. Significant inconsistencies can be devastating to the complaining witness' credibility and must be uncovered as soon as possible.

Plaintiffs also oftentimes threaten to file police reports unless their civil settlement demands are met by the accused individuals or their employers. A skillful and trusted advocate may be able to pre-emptively undermine the credibility of such a plaintiff by communicating with the prosecutor after the criminal complaint has been made but before an arrest has been authorized. Matthew Galluzzo is a former Manhattan sex crimes prosecutor and understands some of the concerns and reservations that prosecutors sometimes have about civil plaintiffs in this arena, and has the respect of many prosecutors specializing in this area of investigation.

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Sexual assault charges and medical doctors/therapists

The attorneys at Galluzzo & Arnone LLP have significant experience defending a wide variety of professionals against criminal and civil accusations of rape and sexual abuse (Matthew Galluzzo, in particular, is a former sex crimes prosecutor in Manhattan with a long track record of success in defending against sex crimes cases). These sorts of allegations are devastating for anyone to endure, but they can be particularly consequential for medical doctors and mental health practitioners.

First, accusations of sexual abuse involving medical doctors can be press-worthy affairs. Recently, an emergency room doctor in New York City was sentenced to two years in prison for sexually abusing patients at his hospital, and his case received considerable media coverage. Needless to say, the media coverage has permanently destroyed his reputation.

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G&A defense attorney Matthew Galluzzo recently earned a stunning trial acquittal in a federal sexual abuse case that had been extensively covered in the press. The client, charged with one count each of sexual abuse on an airplane (18 U.S.C. 2244(b)) and assault on an airplane (18 U.S.C. 113(a)(5)), went to trial in Brooklyn federal court (the Eastern District of New York) before Judge Pamela Chen. The jury deliberated about a day and acquitted the client of all charges, accepting his defense that his touching of the complainant had been an involuntary act committed while asleep. Five eyewitnesses testified for the prosecution.

If you or a loved one have been accused of a sex crime, you should strongly consider contacting the experienced criminal defense attorneys at Galluzzo & Arnone. In particular, Matthew Galluzzo is a former Manhattan sex crimes prosecutor and widely recognized expert on the investigation, prosecution, and defense of rape and sexual assault charges.

Some articles about the case from the press:

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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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One of the great things about living in (and visiting) New York City is the amazing nightlife. The city is home to some of the best nightclubs and bars in the world, including places in the Meatpacking District like Tenjune, 1Oak, The Griffin, Gaslight, Beaumarchais, the Standard (The Top of the Standard and Le Bain), as well as other clubs throughout Manhattan, such as Lavo, Santos Party House, Provocateur, Output, the Jane Hotel, Mehanata, Verboten, Cielo, Webster Hall, the Pyramid Club, the 40/40 Club, and the Marquee, among countless others. Unfortunately, arrests for theft, assault, sexual assault, and drugs are common at these sorts of establishments, and some unfortunate people are saddled with more than just a hangover after a night partying at these places.

The attorneys at Galluzzo & Arnone LLP have represented dozens of people arrested at nightclubs and bars throughout the city, and our experience as prosecutors and defense attorneys has taught us that certain types of cases are quite common. Through our experience on both sides we have also learned that these types of cases present unique challenges and opportunities for defense attorneys, and have learned how to best take advantage of the unique circumstances that these cases often present.

Flirtation and sexual contact is obviously common at NYC nightclubs; indeed, for many people, it is sort of the point of going to a club. Alcohol and drugs, however, can cause people to misunderstand communications or make poor decisions that result in criminal arrests for sexual assault or rape. Misdemeanor arrests for Forcible Touching (Penal Law 130.52) or Sexual Abuse in the Third Degree (Penal Law 130.55) are often applied in cases of unwanted sexual touching or grabbing or grinding, and can have serious permanent consequences like sex offender registration or prison. The more serious charge of Rape in the First Degree (Penal Law 130.35) obviously carries serious jail penalties and applies in cases in which the sexual intercourse is accomplished “by forcible compulsion” or with someone that was “incapable of consent” by virtue of intoxication, for example.

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Bill Cosby was arrested and arraigned on December 30, 2015 for allegedly sexually assaulting a woman in his home in Montgomery County, Pennsylvania in 2004. The arrest comes just days before the 12-year statute of limitation was set to expire for the crime. This case represents probably the only criminal prosecution that Bill Cosby is likely to ever face, despite the dozens of women that have come forward in the past fourteen months to claim that they were sexually assaulted by the famous actor/comedian.

The complainant, Andrea Constand (she has chosen to public identify herself), is a Canadian and former Temple University basketball player. In 2004, she was a Temple University employee that had sought out Bill Cosby’s mentorship. He allegedly made a couple of sexual advance on Ms. Constand that were rejected; indeed, it has been asserted that Ms. Constant is gay and was in a relationship with a woman at that time. Eventually, Ms. Constand went to Mr. Cosby’s home in Montgomery County, PA, and there, it is alleged that he gave her what he claimed were “herbal pills” that caused her to become incapacitated. Then, he allegedly sexually assaulted her.

Ms. Constand complained to a prosecutor in the ensuing year, but the prosecutor declined to press charges against Mr. Cosby, citing, among other things, that her accounts of the incident were allegedly inconsistent. Ms. Constand subsequently sued Mr. Cosby in civil court, and the matter eventually settled for an undisclosed amount.

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Recently, we have encountered several people wrongfully arrested by the police for allegedly groping or grinding people in the Times Square area. Typical charges for these types of arrests include the Class A misdemeanor Forcible Touching (PL 130.52) and Class B misdemeanor Sexual Abuse in the Third Degree (PL 130.55). Sometimes individuals arrested for these charges receive Desk Appearance Tickets and are told to come back to court on a later date, and sometimes they spend a night in jail before seeing a judge for their arraignment.

Times Square is obviously very crowded with pedestrian traffic, and individuals often bump into each other accidentally. This is especially so near the “kiss-cams” and associated video screens in Times Square, as people often clamor and jockey for position so that they can see themselves on the giant screens up above. Police officers monitor these areas in view of the cameras and have seemingly made several wrongful arrests of individuals who were simply trying to see themselves on the screen and inadvertently brushed into someone else. Fortunately, these cases can be defended at trial, as there is frequently no videotape to corroborate police officer observations, and the crowds make clear viewing angles almost impossible.

These charges can be extremely serious, however. As much as one year of jail time is a possible result, as is potential registration as a sex offender. Moreover, these charges can have very serious negative consequences or non-citizens, such as deportation.