Is This the Real Reason Cy Vance Didn’t Prosecute Harvey Weinstein?

Manhattan District Attorney Cyrus Vance’s statement Wednesday explaining why his office did not prosecute Harvey Weinstein for sexual abuse in 2015 is troubling.

According to Vance, as reported in The New York Times, his office did not have enough evidence to prosecute Weinstein because there was insufficient proof to support the two charges of forcible touching and sexual abuse in the third degree. “To prove either crime,” as reported in the Times, “the state must show the accused person touched someone to degrade them or for sexual gratification, not some other purpose.” There is nothing in the criminal statute defining sexual abuse (or the court decisions interpreting that statute) that even requires the perpetrator to engage in sexual contact in order to “degrade” a person. The perpetrator must engage in sexual contact for sexual gratification.

Vance appears to have focused exclusively on the crime of forcible touching, a Class A misdemeanor, which does require the defendant to touch someone for the purpose of abusing or degrading that person or to gratify the defendant’s sexual desire. Given the prompt report to the police by the complaining victim, Ambra Battilana, that Weinstein grabbed her breasts and put his hand up her skirt, and the investigation by the police department’s special victims unit culminating in her recorded conversation with Weinstein in which he admits he grabbed her breasts—a recording Vance described as “sickening”—the prosecution had a very strong case of forcible touching.

But the elements of the forcible-touching statute are different from the crime of sexual abuse in the third degree, a Class B misdemeanor. Whether intentionally or not, Vance in his public explanation conflated the definitions of the two crimes to suggest, misleadingly, that they both contained the same elements and that both require the same proof. But that is wrong.

Under the sexual-abuse statute—as every New York court has concluded—the elements that a prosecutor needs to prove to convict a defendant are: first, that the defendant made sexual contact with the complaining witness (and touching another’s breasts, buttocks, or even kissing that person constitutes sexual contact); second, that the person who was sexually touched did not consent; and third, that the perpetrator did it for sexual gratification. The reasons that Vance offered to explain his office’s inability to prosecute Weinstein are baseless.

Whether Vance intended to conflate the two charges, or was simply confused, is not and cannot be known. We cannot X-ray his mind to see whether he based his explanation from advice from his staff, from his office’s meeting with Weinstein’s high-powered criminal-defense lawyers (one of whom, Elkan Abramowitz, was Vance’s former law partner), or if a $10,000 campaign donation from David Boies, a Weinstein lawyer on unrelated matters, in the months after the Battilana report was a factor. (Boies’ representatives denied the superlawyer ever discussed Weinstein with Vance.)

If Vance allowed the sexual-abuse case against Harvey Weinstein to go forward, a jury would have convicted Weinstein in a New York minute. If that jury heard the victim’s narrative of how Weinstein degraded and abused her, and then heard the “sickening” tape of the movie mogul admitting he grabbed her breasts and demanding she come into his room, it is inconceivable that Weinstein would really try to argue that he really didn’t seek sexual gratification, that he didn’t mean to touch her breasts, claim it was an accident, or protest that he was just trying to make sure her breasts were real and not fake. And it is even more inconceivable that a jury would accept those preposterous arguments. There is nothing on the tape to remotely support any of these contrivances.

But the real takeaway from this case is the uneasy feeling that power, celebrity, money, and lawyers are critical factors in how prosecutors make charging decisions.

Correction: In New York state, the criminal charge of sexual abuse in the third degree requires that prosecutors prove there was sexual contact of a complaining witness, that no consent was given, and that the contact was made for the sexual gratification of the perpetrator. The original version of this report did not include the statute’s element of the perpetrator receiving sexual gratification from the contact.