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Could Weinstein face trial? The mogul's legal woes

Catherine Triomphe

Agence France-Presse

New York, United States | Sat, October 21, 2017 | 12:34 pm
Could Weinstein face trial? The mogul's legal woes

This file photo taken on October 5, 2015 shows Harvey Weinstein, US film producer and executive producer of the TV series 'War and Peace', posing during a photocall at the MIPCOM audiovisual trade fair in Cannes, southeastern France. New York police said on October 12, 2017 they have reopened a investigation into allegations of a 2004 sexual assault by disgraced movie mogul Harvey Weinstein. An avalanche of claims of sexual harassment, assault and rape by the Hollywood heavyweight have surfaced since the publication last week of an explosive New York Times report alleging a history of abusive behavior dating back decades. (AFP/Valery Hache)

Could Harvey Weinstein go on trial for sexual assault, rape or harassment? Experts assess his mounting legal woes with around 40 actresses publicly accusing the disgraced Hollywood mogul.

New York police are pressing two sex crime investigations, London police are pursuing allegations from three women and Los Angeles detectives have interviewed an Italian actress alleging she was raped in 2013.

Legal eagles say the 65-year-old, twice married father of five could potentially go on trial in civil or criminal courts, and is likely to be hit by out-of-court settlements that could see the mogul declare bankruptcy.

- Could Weinstein be charged? -

The allegations against Weinstein range from harassment to sexual assault and rape. The producer insists that all sexual relations were consensual.

Many of the accusations date back 10 to 20 years, and as such could be subject to statute of limitation laws, which would prevent prosecution, although these vary in different US states.

In New York, there is no statute of limitations on rape in a criminal court, but lesser sexual assault offenses cannot be prosecuted after five years have elapsed.

Manhattan detectives are investigating alleged forcible oral sex in 2004, an offense serious enough to potentially still be prosecuted.

The Los Angeles investigation of the alleged rape of an Italian actress in a hotel room near Beverly Hills in 2013, is also recent enough to be prosecuted.

The trouble is finding enough evidence to bring charges and be reasonably confident of securing a conviction, says criminal lawyer and ex-prosecutor Michael Weinstein (no relation).

"You need a credible victim and you need evidence," he says. And preferably from the day, or the day after. "Either a first-hand account of what happened, or a text message, email message which describes the inappropriate behavior."

Read also: Two more Weinstein accusers go public with sex assault claims

- What are the obstacles to criminal prosecution? -

Manhattan's district attorney Cyrus Vance, whose sex assault case against IMF boss Dominique Strauss-Kahn collapsed in 2011 when his accuser changed her story, decided in 2015 against prosecuting Weinstein.

An Italian model wore a wire in which the producer admitted to harassment, but Vance decided the evidence was insufficient and the model not credible enough.

The difficulty of persuading a jury that sexual assault took place "beyond a reasonable doubt" was underscored this year at the trial of disgraced comedian Bill Cosby, which ended in a hung jury in Pennsylvania.

On the other hand, there is "a lot of public pressure in these cases," to bring charges, says Ann McGinley, law professor at the University of Nevada.

- Civil suits? -

The burden of proof is less onerous in civil suits, says New York sexual harassment lawyer Bryan Arce. O.J. Simpson was acquitted of double murder at his criminal trial in 1995, but was later ordered in civil court to pay $33.5 million in punitive damages over the double murder of his wife and her friend.

But even civil suits are subject to statutes of limitations. Even in rape cases, suits must be brought within five years in New York.

Victims can seek damages for loss of earnings, loss of career, emotional distress and punitive damages for malicious intent and egregious behavior. While amounts vary, they rack up into millions, McGinley said.

"I consider it highly likely that there will be civil lawsuits filed against him, I also consider likely that they will be settled," she told AFP.

Fox News paid out millions to settle allegations against its late former boss Roger Ailes and star presenter Bill O'Reilly.

- How might Weinstein pay up? -

According to The New York Times, Weinstein has already reached eight private settlements with women. The amounts involved were not disclosed.

But if civil suits snowball, Arce warns Weinstein could protect himself by claiming "some sort of bankruptcy."

"The floodgates have now opened," he said. "There is only so much money to go around... at that point that's when you claim bankruptcy."

Whatever the outcome, none of it is good for the former Hollywood boss.

"The story is not going to end well for him," concluded Weinstein, the lawyer.

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