Crime, Sex Scandals

Prosecutorial Discretion Or Selective Prosecution

Why wasn’t Harvey Weinstein prosecuted for sexual abuse when it was in the public interest to do so?

By Christine A. Rodriguez  
on

Harvey Weinstein (Photo by Drew Angerer/Getty Images)

In New York State, it is a crime to touch someone on their intimate parts without their consent. The offense, codified in New York’s Penal Law Section 130.55 as Sexual Abuse in the Third Degree is a class B misdemeanor. This crime prohibits unwanted sexual contact, defined as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party.”

Anyone who regularly rides the subway in New York City has seen the ads proclaiming “unwanted sexual conduct shouldn’t be a part of anyone’s commute,” that urge straphangers to report instances of unwanted sexual contact on the subway. Any criminal defense attorney who gets cases assigned to them in the New York City Criminal Courts has undoubtedly been assigned a client accused of just such an offense, often based solely on the word of the crime victim with no other evidence. These cases are prosecuted in all five New York City boroughs.

So why wasn’t Harvey Weinstein prosecuted for the very same conduct in 2015?  Allegations of sexual abuse were made by a young Italian model, Ambra Battilana Gutierrez, who reported her experience to the NYPD. Weinstein admitted his actions to Ms. Gutierrez during a sting operation conducted by the NYPD the next day, which was caught on tape.

GUTIERREZ: It’s just that I don’t feel comfortable.

WEINSTEIN: Honey, don’t have a fight with me in the hallway.

GUTIERREZ: It’s not nothing, it’s—

WEINSTEIN: Please. I’m not gonna do anything. I swear on my children. Please come in. On everything. I’m a famous guy.

GUTIERREZ: I’m, I’m feeling very uncomfortable right now.

WEINSTEIN: Please come in. And one minute. And if you wanna leave when the guy comes with my jacket, you can go.

GUTIERREZ: Why yesterday you touch my breast?

WEINSTEIN: Oh, please. I’m sorry. Just come on in. I’m used to that.

GUTIERREZ: You’re used to that?

WEINSTEIN: Yes, come in.

GUTIERREZ: No, but I’m not used to that.

WEINSTEIN: I won’t do it again. Come on, sit here. Sit here for a minute, please?

GUTIERREZ: No, I don’t want to.

Even though the reported crime was corroborated by an admission from the accused caught on tape, the New York County District Attorney’s Office decided that there was not enough evidence to prove the case against Weinstein. Worse yet, that office released a statement by Chief Assistant DA Karen Freidman Agnifilo that essentially blamed the NYPD for botching the sting because they did not have the proper guidance to get the evidence needed to prove the crime. “The seasoned prosecutors in our Sex Crimes Unit were not afforded the opportunity before the meeting to counsel investigators on what was necessary to capture in order to prove a misdemeanor sex crime.” Huh?

What more did the DA’s office need to prove that Weinstein committed Sexual Abuse in the Third Degree?  Ms. Gutierrez told the police that Weinstein invited her to a purported “business meeting” at his Manhattan office, and that during that meeting he groped her breasts and tried to put his hand up her skirt even though she protested. Weinstein then admitted touching her breasts when she met with him again the next day (under NYPD observation), even after she clearly told him she did not welcome the contact, and this is recorded.

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Let’s play Devil’s Advocate for a moment and imagine that the prosecutors assigned to evaluate the case had some information that caused them to doubt Ms. Gutierrez’s credibility for some reason. Okay, that might cause them to pause, but they also had an admission, a pretty clear one, acknowledging that Weinstein grabbed this young woman’s breasts without her consent. Weinstein made that admission without hesitation as he was begging Ms. Gutierrez to stay with him while he showered and even as she is clearly distraught and repeatedly rejected his advances. If it is enough to prosecute a regular Joe on just the word of a crime victim in subway groper cases on a regular basis, it is a no-brainer to prosecute an admitted groper like Weinstein when all you have to do is play the tape.

The NYPD, whose “investigators,” the New York County District Attorney claims, did not know what evidence to gather to prove the case against Weinstein, shot back at the explanation and District Attorney Cy Vance’s defense of the decision not to prosecute Weinstein. “The case was carried out by experienced detectives and supervisors from NYPD’s Special Victims Unit. The detectives used well established investigative techniques. The recorded conversation with the subject corroborates the acts that were the basis for the victim’s complaint to the police a day earlier. This follow-up recorded conversation was just one aspect of the case against the subject. This evidence, along with other statements and timeline information was presented to the office of the Manhattan District Attorney.”

In other words, trained Special Victims Unit detectives thought it was important to gather more evidence than simply the word of the victim before they charged Weinstein, to be absolutely certain they could charge him. They had much more than just the accuser’s word when they brought the case to the District Attorney. The regular subway groper does not generally get the benefit of such a thorough investigation. Yet, despite all the evidence to support a misdemeanor charge that only requires evidence of unwanted “sexual contact,” including an admission by the accused, the New York County District Attorney’s office decided to pass. Detective Oliva Benson would be mortified. All joking aside, this is cause for serious concern.

The District Attorney’s Office in any county of New York State prosecutes cases on behalf of the People of the State. Prosecutions are meant to hold the offender accountable and to protect the public at large, not just individual crime victims, from future offenses. A District Attorney has broad discretion to bring charges, or chose not to do so, and an ethical obligation to use that discretion to impartially enforce the laws of State. When there is clear evidence that a crime was committed by an accused, and the District Attorney exercises their discretion not to charge that offender, there should be a very good reason that serves the public interest to do so. In the Weinstein case, the only excuse offered by DA Vance in defense of his office’s actions (or lack thereof) was that there was insufficient evidence to prove a case against Weinstein. However, that excuse simply does not hold up. Unfortunately, it appears that this is yet another case of a wealthy celebrity who got a free pass. Vance has been widely criticized for this before, most recently concerning the investigation of the Trump children on fraud charges that did not result in a prosecution.

This is especially troubling in Weinstein’s case where this week has been filled with a flood of stories about decades of his repeated sexual misconduct, including more than one report of forcible rape. While this may have been an open secret in Hollywood for years, so many of Weinstein’s victims likely did not come forward because they feared the consequences to their careers, their reputations, or were simply too ashamed of what they experienced, though none should be ashamed. If Weinstein had been prosecuted in 2015, as he should have been, then perhaps the breadth of his conduct would have come to light then and just one more victim could have been spared. Instead, Vance, who had what he needed handed to him on a silver platter by the NYPD, chose to forego this opportunity to protect the public from who we now know without a doubt to be a vile sexual predator, for fear that the case could not be proven.

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Every case that is prosecuted carries the risk that it will result in an acquittal, that a jury will simply refuse to convict and that the accused will not answer for their crime (assuming they are actually guilty of the charges). I know this well, since I have represented many defendants, and won my fair share of acquittals. While I will maintain my clients’ innocence, the reality is that this is not always the case. However, I started my career as a prosecutor, and I convicted many defendants as an Assistant District Attorney, so I also know the risk from the other side. Despite the risk that any case could end up in an acquittal, I was obligated to prosecute any case where I had credible evidence to prove the elements of the crime charged unless I was sure that evidence was not sufficient to prove the case beyond a reasonable doubt or I had information that proved the innocence of the accused.

The tape in Weinstein’s case was enough to overcome any reasonable doubt and Vance had an obligation to see the case through. He dropped the ball here, perhaps for fear of another embarrassing loss, political considerations, or some other unacceptable reason. Whatever that reason, he failed the People of New York and all of Weinstein’s victims. This was not the exercise of appropriate prosecutorial discretion. This was selective prosecution of the worst kind where a young woman’s account of abuse was discounted in favor of a media mogul. Ms. Gutierrez might have gotten justice if some nobody grabbed her breasts on the subway, but she was unlucky enough to be sexually assaulted by a man with enough money to influence the New York County District Attorney, so her word, and his admission, was not enough. At least the New York County District Attorney’s Office did not lose another case. This should not be acceptable.

Christine A. Rodriguez is of counsel to the firm Balestriere Fariello and successfully represents individuals and small businesses in all manner of employment discrimination, civil rights, criminal defense, civil litigation and commercial litigation matters. She also advises small businesses on all aspects of legal matters from contract to employee issues. You can reach her by email at christine. a. rodriguez@balestrierefariello. com.

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