Women's Issues

Grabbing Someone By the Privates and Getting Away With It (But Only If You're Rich And Powerful)

It’s time for men in positions of power to start getting worried about the cavalier attitude they have toward sexual assault.

By  
on

Harvey Weinstein (Photo by Drew Angerer/Getty Images)

Sexual assault cases are trickier than they first appear.  Usually there are only two witnesses — the alleged perpetrator and the person assaulted.  This kind of abuse doesn’t often happen in broad daylight or in plain view at a party. The toughest cases are when allegations are made between people who know each other, and one party — the perpetrator — is significantly more powerful than the other (in influence, not size).

It’s not only humiliating to report such an offense, but it can be risky for the person’s job, future, and potentially even her loved ones. These types of cases are also the least likely to be prosecuted. Why?  Because when the alleged assailant has money, influence, and a name to protect, even chief prosecutors think long and hard before arresting him — especially when the prosecutor and the alleged perp share mutual friends, some of whom had contributed to the prosecutor’s coffers.

This was what Manhattan District Attorney Cyrus Vance was pitted against last week when he came under fire for not prosecuting Harvey Weinstein on charges of sexual assault.

According to police sources, in 2015, Ambra Battilana Gutierrez, a young Italian actress and model, reported that Weinstein had groped her in his office without her consent.  Police were interested enough to wire her so that she could record her meeting with Weinstein the next day and see if he’d make any admissions.  He did.  According to reports, when Gutierrez confronted him about having touched her breasts the day before he said, “I’m used to that.  I won’t do it again,” and invited her back into the hotel room.  She refused.

Police went to Vance with the tape and the complainant, but Mr. Vance’s office decided there was insufficient evidence to go forward.

As a criminal defense attorney, I’m not one to criticize a district attorney for choosing not to prosecute someone, but in this case, his rationale for not prosecuting — insufficient evidence — is specious.

Sponsored

I’ve represented people charged with sex assault crimes based on much less evidence than what they had against Harvey Weinstein.  None of my clients, however, were rich or powerful. And none had contributed to Cy Vance’s election campaign.

One was a dance teacher accused of touching a student’s breast during class when he asked her to stand correctly.  No other student saw this, or ever made a similar complaint.  My client was so frightened that he could be found guilty at trial and sentenced to jail that he pleaded guilty to a lesser charge.  He has never taught a dance class since.  Another time, a masseuse was charged with sexual assault for brushing against a woman’s genitals while giving her a massage.  The case was weak, but the Manhattan D.A. charged him nonetheless. He went to trial and won.  Just recently, a colleague of mine defended a man alleged to have rubbed his penis against a fellow passenger in the subway. The case was brought against him even though there were no corroborating witnesses, videos, or any admission of guilt.  He had pleaded guilty to a similar crime in his past, so he got indicted for this one.  He lost.

The case against Harvey Weinstein seems far stronger than these. Weinstein’s “casting couch” was so well known in Hollywood circles that it was spoofed on an episode of 30 Rock. It’s not as though his reputation was unassailable, so when Gutierrez not only filed a formal complaint, but brought taped admissions to Vance’s office, they could have pursued it, or in the least, developed the investigation further. They chose not to.

The New York Post reported two potential conflicts of interest. First, Elkan Abamowitz, the lawyer who, as the Post said, “helped” Harvey Weinstein avoid criminal charges relating to Ms. Gutierrez’s claims, donated some $26,000 in cash to Vance’s campaign when he was running for district attorney.  In addition to this personal contribution, Abramowitz’s law firm, Morvillo, Abramowitz, Grand, Iason, Anello and Bohre, donated $11,500 to the campaign. This makes Vance look likes he’s got more in the game then just fear he’d lose the case.

In Vance’s defense, it should be acknowledged that Gutierrez was a compromised witness.  She’d made similar allegations against other men in the past and had been involved in former Italian Prime Minister Silvio Berlusconi’s bacchanal parties.  But NYPD believed her and wired her.  She brought back admissions by Weinstein in his own voice that could have pushed the investigation further, if not justified Weinstein’s immediate arrest.

Sponsored

Rich men (and sometimes even women) often buy their way out of bad situations by offering the complainant money in exchange for a non-disclosure agreement.  This has been happening since the proverbial “casting couch” existed.  But for Vance to claim he didn’t pursue the arrest because the case was weak doesn’t ring true.

According to the New York Times, NYPD as well as other enforcement agencies here and abroad will be investigating allegations against Weinstein in hopes of uncovering new information so prosecutors will be compelled to bring charges.  For his part, Cyrus Vance announced on Sunday that he’s launching an independent review of past campaign contributions to be conducted by the Center for Advancement of Public Integrity (CAPI).  He’s also instructed his campaign not to accept further donations until the CAPI investigation is completed.

In an age when a sitting president gloated about being able to “grab women’s pussies,” it’s time for men in positions of power to start getting worried about the cavalier attitude they have toward sexual assault.

I got an email last week from a woman in Texas who wondered if she should report an incident that happened back in December when a powerful doctor groped her at a fundraiser. (She’d read the article I wrote months ago about the potential for prosecuting Donald Trump for sexual assault.)  She questioned how a report by her would be received. Would she be believed?  Would action be taken? Could her husband (who worked with the doctor) be penalized if she went forward?  All good questions.

I asked her why she hadn’t gone forward sooner and she said she didn’t see the point.  With these recent revelations about Harvey Weinstein, she was moved to reconsider taking action.

I warned her there’s no guarantee that going to police with such complaints will bring criminal action against the perpetrator. Police bureaus are idiosyncratic.  They will judge how you come across as a complainant; how old the incident is; and whether you’ve brought similar complaints in the past. Another part of the equation includes the reputation, power, and notoriety of the person being accused.

I warned her that even if the local police were to write up a complaint, the prosecutor might not choose to act on it.

That said, I told her, if the mere fact of taking a step to vocalize her outrage helps her at least personally, in the long run, it’s worth it.  By putting on the record a complaint against someone, whether prosecutorial action is taken or not, it leaves a paper trail detailing a pattern of behavior — a story, if you will, about that person — so that when the next person has the courage to come forward, there’s that much more likelihood she’ll be believed and action might be taken.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

Topics

, , , , , , , , , ,