Harvey Weinstein Arrest and Surrender to Manhattan DA: Possible Crimes of Sex Abuse, Criminal Sexual Act and Forcible Touching

According to multiple reports, initially broken by courtroom sleuth and NY Daily News reporter, Shayna Jacobs,  Harvey Weinstein is set to turn himself in on Friday to the Manhattan District Attorney’s Office for arrest and prosecution. Although it is not clear at the time of this writing whether the infamous movie mogul is being charged by way of a felony complaint or indictment, the latter being worse than the former, the notoriety surrounding Weinstein’s alleged sexual predation and his personification of #Metoo have come back to bite him the proverbial ass. Regardless of what ultimately happens, and I remind everyone that as ugly as the allegations have been he is entitled to the same presumption of innocence as any one of us, if Lucia Evans is the complainant for forced oral sex, there are numerous sex crime related felonies and misdemeanors that the disgraced filmmaker may or will likely face. Again, I have no direct knowledge of who the victims might be, what information, if any, prosecutors presented to a Grand Jury or drafted on a felony complaint, or what the evidence the District Attorney possesses. As such, the potential crimes address in this blog may be completely or partially accurate and are, at this time, based on various historical and current news reports.

From “really bad” to “horrendously, really, really bad,” the first two potential crimes Weinstein may find himself confronted with are “merely” class “A” misdemeanors with the maximum potential sentence upon conviction of one year in residency at Rikers Island. These offenses are New York Penal Law 130.52(1), Forcible Touching, and New York Penal Law 130.20(2), Sexual Misconduct. Forcible Touching is exactly what it sounds like. You are guilty of this crime if you intentionally forcibly touch another person’s intimate body parts and you do so for no legitimate purpose. Instead you do so to sexually gratify yourself. Here, beyond receiving oral sex, Weinstein would have to had touch Ms. Evans’ “intimate parts.” Whether he did or not, Weinstein will also face Sexual Misconduct. This crime mandates that you, the victimizer, engage in oral sexual conduct without the other party’s consent.

The more serious crimes, and by “more serious” I mean significantly so, are the two felonies of First Degree Sexual Abuse, New York Penal Law 130.65(1), and First Degree Criminal Sexual Act, New York Penal Law 130.50(1). Both life altering legally identified “Violent Felony Offenses,” these indelible convictions are punishable by as long as seven and twenty five years in Shawshank respectively. While internal redemption is always a possibility, each crime has a mandatory minimum penalty as well. A conviction for First Degree Sexual Abuse is two years while First Degree Criminal Sexual Act is half a decade. Simply, if you subject your unwilling partner to “sexual contact” by “forcible compulsion,” then you have run afoul of the law. According to the New York Penal Law, “sexual contact” is any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor (not in the theatrical sense) by the victim, as well as the touching of the victim by the actor. This is accomplished directly or through clothing as well as the same through ejaculation. Also defined by law, “forcible compulsion” actually speaks for itself and does not require overwhelming brute strength or threat of death (although it can), but only some physical force.

Putting all of these crimes aside, the biggest hurdle facing the former iconic silver screen producer is First Degree Criminal Sexual Act when one party forcibly compels the other person to engage in oral sexual conduct.

Again, whatever crimes a Grand Jury has already considered, will potentially vote on or choose not to indict, we soon will know. Fortunately, District Attorney Cyrus Vance and prosecutors will set aside public speculation and disgust over Weinstein’s alleged conduct to objectively (and subjectively) examine the evidence and ensure the integrity of the legal process – the same one we all enjoy – is not cast aside for the tabloids. Make no mistake, however. If and when a jury convicts Mr. Weinstein or he pleads guilty,  his regret will likely outweigh the claimed sexual appetite he satiated at the expense of a vulnerable woman.

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