In a bombshell report early this October, the New York Times released an article exposing over three decades of sexual misconduct by Hollywood mega-producer, Harvey Weinstein. As a result, I am taking a brief detour from our usual “product safety” blog posts, and in light of the many sexual conduct cases I have handled over the years (both civilly and criminally as a former prosecutor myself), and in response to a number of people who have asked me, what kind of civil and criminal remedies, if any, may be available to the Weinstein victims, I have attempted to provide my best “quick” analysis of same here.
Weinstein’s acts include sexual battery, sexual harassment, and even rape. Allegations from dozens of different women subordinates in his company accused Weinstein of lude behavior at their offices and in various hotels across the United States and Europe. Many of the allegations followed the same pattern: Weinstein, using his status as their boss, would leverage career opportunities for sexual favors. If and when the women refused, he would persist and in some cases become violent. The companies would pay off the women to keep quiet after the encounter. Women who accepted these further agreed to abide by a confidentially clause written into their employment contracts. These stated that they could not harm the “business reputation” of the company or its employees.
Civilly, it is unlikely that Weinstein can be charged. This is because the states he has been accused of misconduct in, California and New York, have a very narrow statute of limitations for one to bring such an accusation to trial, one to two years. Most of the assaults happened in the 1990s, so there will not be a remedy for those victims in a civil court of law.
This is not to say, however, that Weinstein cannot face justice. Actress Lucia Evans claims Weinstein forced her to perform oral sex in his New York City office in 2004. This would be classified as felony sexual assault under state law. There is no statute of limitations for this crime in New York, meaning that Weinstein could potentially go to court over the accusation.
Prosecutors face two major obstacles in getting this case on the docket. First, due to the fact that the crime happened 13 years ago, there is little to no forensic evidence. Attorneys for Evans would have to rely on Weinstein’s pattern of abuse and confession, in which he appears to admit to abusing multiple women. Secondly, the Manhattan District Attorney, Cyrus Vance Jr, must agree to prosecute the case. He has already refused to move forward with sexual battery charges against Weinstein, making the future of Evans’s case look increasingly bleak. Former New York City prosecutor told The Guardian: “I don’t think he’s going to bend to political pressure. As much as what [Weinstein] did is deplorable, I don’t think they are going to charge a crime that is unlikely to result in a conviction.”
The Weinstein Company could also be charged with facilitating an environment where sexual misconduct was allowed to happen. Weinstein’s behavior was well-known within the company according to the NYT. The Board for Directors fired Weinstein after the assertions were made public as a way to express that they do not condone his behavior. It will be up a jury if that action is enough when weighing if the company owes the victims damages.
Weinstein has been fired from his own company and is regarded as a social pariah in Hollywood. These informal sanctions do not come anywhere near providing justice for the women deserve whom he hurt.