The unfortunate truth about Harvey Weinstein's likelihood of jail time

The unfortunate truth about Harvey Weinstein's likelihood of jail time

Unless you've been living at the bottom of an incredibly deep, dark hole for the past few months, you'll be aware of the Harvey Weinstein scandal and subsequent #MeToo campaign. Despite denying all allegations, the disgraced film producer stands accused of rape, sexual assault, and harassment by more than 90 women. If police find any truth in the stories, theoretically, news of his imprisonment should be nigh.

However, as much as millions of people would love to see Weinstein marched into a jail cell, that doesn't necessarily mean that this scenario will be the one to play out. In fact, despite investigations taking place in New York, London and Los Angeles, a criminal conviction seems unlikely. Here's why.

Harvey Weinstein Credit: Getty

Little physical or scientific evidence

As stated, police in at least three cities are currently gathering evidence against Weinstein. However, rape, sexual assault and harassment are some of the most difficult crimes to prove and the standard of proving guilt beyond a reasonable doubt in court is extremely high, as prosecutors don't want to take a case to trial if the proof doesn't meet the legal standard.

Take Paz de la Huerta, for example. In November, an NYPD officer claimed that the actress — who is suing Weinstein, claiming that he raped her twice in 2010 at her Tribeca apartment — had given them enough evidence to move forward with an investigation. In addition, Chief Boyce said that de la Huerta “put forth a credible and detailed narrative” to his detectives and that those detectives found “corroboration along the way," adding that she was able “to articulate each and every movement of the crime: where she was, where they met, where this happened and what he did.”

However, no arrest has been made, and in December it was claimed that Weinstein was "highly unlikely" to face charges. According to a TMZ source, the fact that the case is more than seven years old creates problems, primarily in regards to remembering the incident. The case is also reportedly complicated by the fact that the actress interacted with Weinstein between the alleged assaults.

On the positive side of things, the increasing number of people speaking to Weinstein’s history as an abuser could help the case because it forms a pattern of behaviour as a predator. When over 90 people have spoken out about one man, there has to be something behind it, right?

The statute of limitations on rape

In America, the statute of limitation law makes things difficult, giving sexual assault victims a limited period of time in which they can reveal their story and try to bring it to court. The state in which a person is attacked determines how long a prosecutor has to press charges.

In 2006, New York removed its statute of limitations for criminal sexual assault, so the NYPD could very well indict Weinstein for alleged acts in that state. Before that, unless charges of rape were brought within five years, there could be no prosecution. Nonetheless, it's unlikely that a prosecutor would go forward with a case that is particularly old, due to the lack of DNA, as well as the fact that the accuser will have to explain why it took them so long to reveal their story. Additionally, New York's statute of limitations for most misdemeanours is just two years, meaning that accusation of things like groping can only be brought forward if they took place within that time period.

In California, things are different. Until recently, the statute of limitations for felony sexual assault, including rape, was 10 years. The state has now eliminated any statute of limitations for rape, however, the new law applies only to crimes committed after January 1, 2017. So any felony sex offences committed by Weinstein in California before January 1, 2017, are still subject to the 10-year statute of limitations, making it impossible to prosecute him for many felonies he is accused of.

In the UK, on the other hand, there is no strict statute of limitation on sex crimes, nor on less serious offences like groping, meaning that this is the place where Weinstein is most likely to be prosecuted, if sufficient evidence is found. Police are currently looking into nine women's allegations of sexual assault. The alleged offences, reported to police in October and November, took place in the Republic of Ireland in 1991, Westminster in 2011 and abroad in 2010, the Metropolitan Police said.

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Victim blaming

Traditionally, society is not kind to those who claim to be victims of sexual assault, and it's a well-known fact that questions like "how much did you have to drink?" and "what were you wearing?" intimidate women who are already nervous about stepping foot near the courtroom. If Weinstein did go to court, his defence lawyers would most likely try to aggressively attack any accuser’s credibility and seek to argue that the incident was consensual.

Each case is different, but in every one, Weinstein's legal team are likely to subject the victim to a humiliating cross-examination that may doom the case and deter other victims from coming forward. For instance, take Paz de la Huerta's case again; in her account, she was drinking and in no condition to consent to sex, yet there's a chance this could be used against her in court. In fact, Weinstein has already attacked Uma Thurman's account of being sexually assaulted, saying that he is "saddened and puzzled" as to why his "colleague and friend" waited 25 years to make these allegations.

How many women will press charges? 

Close to one hundred women have accused Weinstein of some form of sexual assault. However, the question is: how many of these women will press charges? British police confirmed in February that its "Operation Kaguyak" was investigating 14 separate claims brought by nine women, but claimed that it would not formally identify a suspect unless they have been charged. In addition, police in LA and New York are investigating numerous claims of assault.

Furthermore, it is a question of how many the dozens of women who claim to have been assaulted will want to press charges. Court cases like these are lengthy and emotionally scarring, and it's fair to assume many women will not want to be a part of a high profile case.

In addition, many women are likely to believe that they will not win and to question what they will achieve by taking the director to court. Rape conviction rates are low in the US; anti-sexual violence organisation RAINN claims that in the US, out of every 1,000 rapes, 994 perpetrators will walk free. In the UK, it's a similarly sad situation, with Rape Crisis reporting that conviction rates for rape are far lower than other crimes, with only 5.7 per cent of reported rape cases ending in the conviction of the perpetrator.

Furthermore, of course, it's a case of how many can press charges; in the Bill Cosby sexual assault trial, only one woman of 50, former Temple University employee Andrea Constand, was allowed to testify.

Weinstein and three actresses Credit: Getty

The rich and famous don't often do time

When Donald Trump was recorded crudely boasting to Billy Bush about grabbing women "by the pussy", he claimed that "when you’re a star, they let you do it. You can do anything." As sad as it is, in a lot of ways his insight was spot on. The rich and famous have a history of avoiding jail, and even when they do go to prison, many of them don't receive the full sentence that a normal criminal would get.  There are many reasons behind this; better lawyers, powerful friends and allies, and the damage the case has already done to the celebrity's reputation. But another reason for this is money, something that is already rumoured to be a player in the Weinstein case.

In 2015, when the producer was caught on tape admitting that he had groped Italian model Ambra Battilana, many people believed that it would be enough evidence to go ahead with a prosecution. However, it was later announced that this was not going forward, due to insufficient evidence. Manhattan district attorney, Cyrus R. Vance Jr., was later accused of accepting a $10,000 donation from a Weinstein attorney in order to convince him to drop the charges; he fully denied these allegations. In addition, Weinstein was later sued for allegedly hiring New York attorney Michael F. Rubin to spy on de la Huerta last Autumn, while also discouraging her from pursuing criminal charges against him.

The film producer - who has paid settlements to at least eight women over the years, according to the New York Times - is likely to be taken to both a criminal and civil court; if found guilty in the criminal court then no amount of money will be able to solve his dilemma, and there's a strong chance he will go to jail. However, if found guilty in the civil courts, he will be asked to pay a sum of money to his accusers. All of these incidents, rumoured or true, demonstrate that celebrities can launch a powerful counter-strike against sex crime investigations, using the weapons only available to the powerful.

Ultimately, there are endless reasons why Harvey Weinstein may never be brought to justice for his alleged crimes. We must bear in mind that the details of the case have not been made public however, Police investigations are underway, and we live in hope that Weinstein - if proved to be a sexual predator - pays the price for what he has done.