Sources: Statute hampers NYC efforts to prosecute Harvey Weinstein

Some complaints received by the NYPD about disgraced Hollywood producer Harvey Weinstein can’t be pursued locally because they either relate to noncriminal sexual harassment allegations or events that occurred outside New York City, according to law enforcement sources.

In addition, some of the reports have been anonymous, with the complainants not wanting to reveal their identities, said the sources, none of whom wanted to be identified.

Officials have said detectives are investigating allegations made by actress Lucia Evans in a New Yorker story published Oct. 10 on the magazine’s website.

Evans alleged in the story that in 2004, Weinstein, co-founder of The Weinstein Company, forced her to perform oral sex on him when she was a college student.

At first glance, the Evans allegations, though from 2004, appear to be covered by a 2006 change in state law that made the crime of a forcible criminal sex act not subject to a five-year statute of limitation. Some legal experts raised the possibility that if detectives determine the allegations have merit, the removal of the statute of limitations might prevent a prosecutor from charging Weinstein because the statute change could be considered an impermissible retroactive change in the law, barred by the Constitution.

In essence, the so-called “ex post facto” rules bar the government from making conduct once legal suddenly retroactively illegal, said attorney Gary Muldoon of Rochester, who has written about the subject for legal publications.

A 2003 U.S. Supreme Court ruling on the subject enumerated four main areas where criminal law couldn’t be legally be changed, including changes that may extend the statute of limitations, Muldoon said in an email interview.

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Representatives for Weinstein have continuously denied he had any nonconsensual sexual contact with any of the women who have made allegations against him.

That denial appears to cover the 2015 case of Italian model Ambra Battilana Gutierrez who told the NYPD that Weinstein improperly touched her breasts and attempted to put his hand up her skirt when she met him at his lower Manhattan office.

In the Gutierrez case, detectives equipped the model with a recording device that captured Weinstein apologizing after admitting he touched her breasts. Sex crimes prosecutors in the office of Manhattan District Attorney Cyrus Vance Jr. determined that, even with the recording, there was not enough evidence to charge Weinstein with the crime of third-degree sex abuse, a misdemeanor offense.

Legal sources familiar with the Gutierrez case said Vance and his staff faced two major problems: There was no evidence that the act of touching Battaglia’s breast, as opposed to a groping, was for Weinstein’s sexual gratification, and Gutierrez had had credibility problems when she made past allegations in Europe, the sources said.

One NYPD official who didn’t want to be identified said while investigators agreed that Vance’s office believed there was not enough evidence to win a conviction in the Gutierrez case, prosecutors should have made the arrest and waited to see if it was dismissed.

While Vance has been heavily criticized by some women’s groups for not prosecuting Weinstein, state records show that a large number of the arrests in such a misdemeanor case are often dismissed or lead to no prosecution.

Data compiled by the state Division of Criminal Justice Services showed that in the last five years city prosecutors declined to prosecute just over nine percent of arrests for third-degree sex abuse and saw nearly 30 percent dismissed by the courts. Vance’s percentages were a few points less, the data showed.

By Anthony M. DeStefano

tony.destefano@newsday.comtonynewsday

Anthony M. DeStefano has been a reporter for Newsday since 1986 and covers law enforcement, criminal justice and legal affairs from its New York City offices.