I'm confused about the third charge of having sex without consent(with no date rape drug involved) - how is that different than having sex by force?
From the Court docket: (The material in brackets was added by me]:
- PL 130.35 01 TOP CHARGE
B Felony, 1 count,
Not an arrest charge, Arraignment charge
Description Rape-1st:forcible Compulsion
- PL 130.25 03 E Felony, 1 count,
Not an arrest charge, Arraignment charge
Description Rape: lack Of Consent Not Incap[acitated]
- PL 130.50 01 B Felony, 1 count,
Arrest charge, Arraignment charge
Description Crim Sex Act-1st[degree]:by Force
The next court date is July 30.
As for the elements of the crime:
PL 130.35 Rape in the first degree.
A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person by (1)forcible compulsion; ....
PL 130.25 Rape in the third degree.
A person is guilty of rape in the third degree when (3) he or she engages in sexual intercourse with another person without
such person`s consent where such lack of consent is by reason of some factor other than incapacity to consent.
PL 130.50 01 (Criminal Sex Act First Degree)
A person is guilty of criminal sexual act in the first degree when he or she engages in oral sexual conduct or a*nal sexual conduct with
another person: (1) By forcible compulsion;
If I had to guess, I'd say the second rape charge is a lesser included offense of the first degree rape charge and pertains to the same accuser/date -- meaning Weinstein is only really charged with two separate incidents -- one with an aspiring actress in 2004 and one with a former employee.
Contrary to some news reports, Weinstein has not yet entered a plea of not guilty. He's only charged via complaint, not Indictment for now. He will enter a plea when an Indictment is returned. (NY is one of those states that indicts almost everyone. I don't know why. In Colorado the state grand jury is principally used for organized crime or very high profile cases where the DA wants to show the charging decision was a shared responsibility.)
As to the possible penalties: The law is changing in 2019, but as of now, and I didn't study this closely, a class B felony is at least five years and not more than twenty-five years; A class E felony is at least 1.5 years and not more than 4 years. It appears the judge can sentence lower in class E felonies if he or she wants to.
Now for something you might not have read: His lawyers (Ben Brafman and Alan Dershowitz, who is advising the defense team) have each filed sworn declarations in the the federal bankruptcy case of The Weinstein Company (called TWC) in Delaware in an effort to obtain hundreds of thousands of Harvey Weinstein's emails, which the company has refused to turn over. From Brafman's declaration.
16. Not only will these materials allow Mr. Weinstein and his counsel to mount a serious and compelling defense to the many scurrilous, serious allegations, in doing so it may also cause the government to conserve vast resources by closing out many of the public accusations that we may be able to demonstrate to be entirely without merit.
17. As an example, through the personal courtesy and intervention of Counsel, we were able to obtain one important email that substantially undermined the credibility of one of the principal protagonists who has publicly claimed to have been forcibly raped by Mr. Weinstein on two separate occasions. The email in question, proved that within days after the alleged first forcible rape, the woman through her agent, reached out to Mr. Weinstein, begging to be invited to a high profile industry party, as Mr. Weinstein's personal VIP guest, hardly conduct consistent with a claim of forcible rape allegedly committed by the person who the "victim" is then demanding personal and very public access to.
Therefore, the declaration continues:
18. Based on our investigation, counsel has a good-faith basis to believe that comparable emails and other correspondence was exchanged between Mr. Weinstein and many if not all of the women who now accuse him of abusive behavior. These personal email exchanges of a very friendly and often intimate character will substantially undermine claims of an abusive relationship between Mr. Weinstein and these women who now portray themselves to be his "victims".
In conclusion, it says:
20. Finally, it is imperative for Mr. Weinstein to preserve e-mails that are the subject of the various criminal and civil litigations in order to avoid being forced to assert his rights under the Fifth Amendment to the United States Constitution, thereby risking sanctions and an automatic adverse inference.
The bankruptcy is incredibly complicated - I spent hours and a few hundred dollars yesterday downloading a ton of pleadings from PACER (only to later learn they are available for free here). The list of unexpired contracts with actors, producers, authors, etc is literally 2,000 pages. Among the names: Jennifer Aniston and her production company; Brad Pitt and his production company; Jennifer Lawrence, and even Trayvon Martin's parents. Anyone who is willing to invest the time can read much about the women accusing him and their specific allegations.
I'm out of time, off to dinner. Let's keep this thread to Weinstein but please, no name calling of him or anyone else, no proclaiming him guilty and please use asterisks for explicit terms. Comments that include any of those will be deleted. Thanks.
