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The New Predatory Sexual Assault Charges Against Weinstein Are Shrewdly Tactical

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.

Weinstein’s defense attorneys currently face the obvious problem that the trial jury is going to hear from multiple complainants describing similar crimes by their client.  Of course, any uncertainty that the jury might have about one complainant’s testimony could be erased by the testimony of two other complainants with similar accounts. This is the prosecution’s huge advantage at trial, and the prosecutors have so far been smart to join the three complainants on the same indictment for this purpose of overwhelming Mr. Weinstein at trial. (Note: the charges relating to the three complainants can legally be brought on the same indictment – the legal principle is called “joinder,” and the basis for joinder is the fact that the charges from the separate crimes allegedly committed by Mr. Weinstein are similar or identical).

However, the defense would have had a strong argument for severance in this case, meaning that the evidence relating to each of the three incidents would have had to be heard by different juries. Basically, prior to the addition of these new Predatory Sexual Assault charges, a judge could have ordered severance such that there would be three trials in front of three juries instead of one trial in front of one jury. (To be fair, the severance request by the defense would not have been uncontested by the prosecution, and there is no guarantee that the court would have granted such a request).  Under this scenario, the defense would have to undergo three trials, unfortunately. But, the defense could at least force the prosecution to prove each crime without presenting to the jury the evidence of the other crimes involving the other complainants. Because of the compounding effect of a jury hearing from multiple complainants, one might reasonably say that defending against a case involving three rape complainants would be ten times more difficult than defending against a case involving one complainant. Thus, it would have been tactically sound in this case for the defense to split the cases up and take the complainants on one-at-a-time.  (As a defense attorney, it is analogous to fighting three winnable one-on-one fights instead of fighting three people at once. Generally, one would think that an individual would have better odds of winning three one-on-one fights than defeating three people at once. After all, the latter scenario is a fight you would almost assuredly lose.)

However, by charging Weinstein with Predatory Sexual Assault, severance may be legally impossible. Indeed, the prosecution is now obligated to prove to a jury that Weinstein assaulted two or more women in order to get the convictions on the Predatory Sexual Assault charges. To do that, a single jury will have to hear the evidence relating to all three complainants. In a very shrewd tactical move, the prosecutors have thus basically made it impossible for the defense to get trial severance for their client.

Prior to today, I thought that a guilty plea would never happen. Now, however, I think there is a distinct possibility that Weinstein will eventually plead guilty. I would bet some money that there will be plea deal involving a five to ten year jail sentence on several Class B felony charges. On the other hand, Mr. Weinstein may think that his life is already ruined and would not be worth living if he pleads guilty and goes to prison. In that case, we will have a trial. But, these new charges make his chances of winning at trial much slimmer.

The author of this post, Matthew Galluzzo, is a criminal defense attorney and former Manhattan sex crimes prosecutor. He has represented numerous criminal defendants accused of sexual assault, and has also represented victims of sex crimes in civil lawsuits. He has been interviewed countless times by television and news reporters in connection with various rape and sexual assault cases in the news, and the South African government hired him for a period in 2012 to train its law enforcement officers in sexual assault investigations.