So What Exactly are the Charges Against Harvey Weinstein in New York City and What do They Mean?

An explanation of the charges currently pending against Harvey Weinstein in New York City

Earlier today, May 25, 2018, Harvey Weinstein surrendered to the NYPD on three charges.  The charges are Rape in the First Degree, Criminal Sexual Act in the First Degree, and Rape in the Third Degree.

What sort of Punishment does he face if convicted of what he is charged with?

If Mr. Weinstein were to be convicted of exactly what he is charged with at the moment, he would face a mandatory minimum of five years.  Both Rape in the First Degree and Criminal Sexual Act in the First Degree are considered B violent felonies.  Violent felonies in New York carry a mandatory minimum sentence of five years.  That really and truly means what it says.  A judge at sentencing would not have the power to impose a sentence of one second less than five years on a conviction for a B violent felony.  And if you imagine that "good behavior" will allow him to be released quickly, that is not true.  You earn 1/7 off for "good behavior" which amounts to something, but is of little comfort to most people being sentenced to substantial prison sentences.

The maximum possible sentence for one B violent offense is 25 years in prison. 

Upon conviction, a judge would be permitted to pick a number between 5 and 25.

Note: This assessment assumes that Mr. Weinstein has no prior felony convictions within the last ten years.  If he were to have a prior felony conviction within the last ten years, he would face substantially increased sentences because he would be considered a "predicate felon".

Could conviction for all the charges result in consecutive sentences?

That depends.  The law generally requires concurrent sentences (sentences that run at the same time) for convictions for offenses that are part of the "same transaction or occurrence".  If the charges relate to different incidents, involving different victims, then they would likely NOT be considered the same transaction or occurrence.  This would mean that convictions for everything could result in sentences that would run consecutively, or one after the other.

Would Consecutive Sentences be Likely?

It is hard to say at this point.  If Mr. Weinstein were not famous, and were not the eyes of the world focused on this case, I would be tempted to say that consecutive sentences would be unlikely, even if technically permissible.  Part of the reason that consecutive sentences would be unlikely is that there is enormous scope in terms of the possible sentence for a single B felony case.  As stated above, the maximum penalty is 25 years on just one B felony.  For a non famous person in a non famous case, 25 years would likely be more than enough of a range of possible punishment for most judges, at least in terms of something that might be settled.

But just as an example, if the rape in the first degree charge involves a separate complaining witness from the criminal sexual act in the first degree charge, that represents the possibility of consecutive sentencing.  If Mr. Weinstein were convicted of both charges, and a judge imposed consecutive sentences, that would mean a minimum of 10 years and a maximum of 50 years.

At this point, however, based on comments from his lawyer, settlement doesn't appear to be something that they are exploring.  This could be because they believe, based on their own investigations that they have a powerful case and they believe that they are likely to prevail at a trial, or even perhaps in the Grand Jury. 

The risk here is that by going to trial, anything is possible if there is a conviction.  The thinking also is that you are likely to do better by way of a sentence in a negotiated settlement than relying on the judge after you "force" a trial.  It is the rare case indeed where the sentence after a conviction is equal to or better than what was offered to settle the case.

What is the difference between Rape in the First Degree and Criminal Sexual Act in the First Degree?

Criminal Sexual Act targets oral and anal sexual conduct by forcible compulsion or various versions of lack of consent.  

Could Other Charges Be Brought Later?

Yes.  Because the matters are felony charges, the Government must present the case to a Grand Jury.  As long as the Government provides Mr. Weinstein notice of additional matters they are presenting to the Grand Jury, and as long as he is offered the opportunity to testify himself as to those charges, the Grand Jury may in general hear evidence as to additional charges.

What is Rape in the Third Degree?

Rape in the third degree is an E non-violent felony (the lowest degree of seriousness of felony charges) and it is what most people think about when they do think about "statutory rape".  That is it is called rape because society deems, for example, that a person may not consent because of her age.

Will he be considered a sex offender and will he have to register as a sex offender?

If he is convicted of any of the three current charges, Mr. Weinstein would be required to register as a sex offender.  Prior to his release from prison (should there be a prison sentence), there would be a hearing to determine his sex offender level.  The outcome of this proceeding would decide issues such as registration with the police and notifications to the community where he lives and would influence where he could live.  For example, he might not be allowed to live near schools.

Will he be convicted?  What sort of Case does the Government Have?

Who knows?  Little reliable information is available about the Government's case, and likely that will remain the same even as the trial approaches.  New York State has among the worst discovery rules in criminal cases in the nation, so the Government is allowed to sit on critical information quite literally until the trial itself.  We defense lawyers describe discovery in criminal cases in New York as "discovery by trial".  

Needless to say, given the notoriety of the case, the Government will be bringing enormous resources to bear on the matter, and those resources are formidable indeed.  They will have an army of Detectives, an army of prosecutors, and an army of support staff able to pitch in on the case, along with experts and other services at their beck and call.  The Government will also have the media to drive its prosecution in the press as the court proceedings move forward.

Matched against this will be Mr. Weintsein's legendary attorney, Ben Brafman, who faces challenges not only possibly in the case itself, but also challenges arising out of the public demonization of his client.  But the defense will no doubt have some resources of its own, although still nothing close to comparable to the Government's.  Should the case make it to trial, and should Mr. Weinstein actually receive the benefit of the presumption of innocence that he deserves as much as anyone else charged with a crime, who knows what might develop as the actual evidence (as opposed to leaks and speculation) is revealed in Court?

By Don Murray, Esq.

Don Murray has been a criminal defense lawyer in New York City for more than 27 years.  He can be reached by phone or text at 718-268-2171.