Now that Harvey Weinstein has been convicted in his rape trial, many are wondering how much time he'll actually serve behind bars. The 67-year-old disgraced producer was remanded to jail ahead of sentencing on March 11, and legal experts say it's very likely he'll spend significant time in prison.
"The fact that the judge remanded Weinstein immediately following the guilty verdicts seems to indicate that Weinstein is going to have a tough time convincing the judge to sentence him to anything other than state prison for these crimes," Lisa Houle, a former Los Angeles County prosecutor specializing in sex crimes, tells Yahoo Entertainment.
Weinstein was found guilty on two of five possible counts: criminal sexual act in the first degree and rape in the third degree. The first-degree charge stems from Miriam Haleyi who testified the Shakespeare in Love producer forcibly performed oral sex on her at his apartment in 2006. For that, he faces a minimum punishment of five years and a maximum of 25 years in prison. The jury found Weinstein guilty of raping Jessica Mann in the third-degree, not first-degree, which is punishable from probation to up to four years in prison. So, he faces a possible sentence of 29 years.
"If the judge decides that this is the type of case and the type of defendant that deserves, in the interests of justice, to be granted probation, as opposed to being sentenced to prison, he could do that," Houle explains. "However, given the strength of the evidence and the fact that there was more than one victim, I think that is highly unlikely."
Houle adds, "The judge will most likely deny Weinstein probation on the count involving Mann, and sentence Weinstein to prison for both counts."
Heidi Reavis, managing partner of Reavis Page Jump LLP whose firm deals regularly with allegations of sexual harassment in the workplace, thinks the maximum sentence is on the table.
"It’s hard to imagine Judge Burke not levying the maximum sentence against Weinstein based on the court of public opinion," she says, noting Judge Burke "has latitude." Weinstein’s criminal history will also factor in.
"The existence or absence of a criminal record plays a role here, along with any attenuating circumstances or personal qualities," Reavis continues. "The sentence may also include a period of probation, which for a sex-related felony would be 10 years. Further, registration as a sex offender under the New York Sex Offender Registration Act is required with a conviction of third-degree rape."
Reavis has followed the case and trial closely. Her firm represented Lauren O'Connor, a former literary scout at the Weinstein Company whose internal memo about the former mogul's abuse was published in the New York Times October 2017 article that broke the Weinstein story open. She thinks Judge Burke's remand is telling.
"Today’s remand of Weinstein right to jail may signal Judge Burke’s intention to ensure Weinstein serves jail time, which would be anticipated at least concerning his conviction based on count 2: criminal sexual act in the first-degree concerning Mimi Haleyi," Reavis tells Yahoo.
Victim impact statements will also likely come into play during sentencing.
"Given the length of the trial and depth of the oral testimony already in the record, the victim impact statements should be a powerful tool for Judge Burke," she adds. "One aspect of the victim impact statements may be to blunt the negative impact of the Weinstein defense team on conceptions of damage and memory."
During the trial, Weinstein's defense team called a human memory expert as a witness to testify about the unreliability of memories.
"The public may not generally appreciate how victims of rape and sexual assault experience those crimes with all five senses: sight, sound, smell, taste and touch. So rape and sexual assault victims' memories are not simply a matter of mental recollection – human sensing organs are associated with each particular sense," Reavis explains. "So the scars from rape or sexual assault are deep and lasting. It’s not like having your wallet stolen out of your bag. So the approach of the 'memory experts' in Weinstein's defense team have been particularly demeaning of the witnesses and misleading of the public, about the profound and permanent damage often experienced by victims. Hopefully the victims’ direct impact statements of the profound and permanent harm done to them, will be given full credence by the judge at sentencing."
Prosecutors will likely seek the maximum sentence. Manhattan District Attorney Cyrus R. Vance, Jr. said in a statement Monday, "Weinstein is a vicious, serial sexual predator, who used his power to threaten, rape, assault, trick, humiliate, and silence his victims."
"This is the new landscape for survivors of sexual assault in America. This is a new day," he declared. "It’s a new day because Harvey Weinstein has finally been held accountable for crimes he committed. The women who came forward courageously, and at great risk, made that happen."
Weinstein has also been charged with sex crimes in Los Angeles, and Monday's guilty verdict directly impacts his pending trial across the country.
"These guilty verdicts are a huge step for the prosecutors in L.A," Lisa Houle notes. "These women can not only be called as witnesses in the L.A case, but now they have the strength of the guilty verdicts to back their claims."
Los Angeles employment attorney Angela Reddock-Wright, who specializes in sexual harassment cases, calls Monday's verdict a "monumental win" for #MeToo.
"The guilty verdicts send the message that these claims will now be taken seriously," she tells Yahoo Entertainment. "The tide is finally changing. Weinstein is Hollywood’s top domino to fall and this will empower women who believe they have been violated to step forward with their complaints."
Reddock-Wright, founding and managing partner of Reddock Law Group, represents actors in Hollywood and also advises companies on their sexual harassment policies.
"Many actresses over the years have fallen prey to abusive men in power and at last, we may be seeing the end of the casting couch mentality," she continues. "This is a monumental win for the #MeToo movement. Without it, Weinstein doesn’t get convicted and probably doesn’t even get charged."
Weinstein plans to file an appeal in New York.
"While he was not convicted on the most serious charges, we are disappointed in the verdict and will be filing an appeal. There are issues in this trial that were extremely troubling, and they prejudiced Mr. Weinstein's ability to have his case fairly judged," the defense team tells Yahoo Entertainment. "These will be addressed to a higher court. In the meantime, we are working on assuring that Mr. Weinstein is brought to Rikers' Island's North infirmary unit (NIU) at the Anna M Kross center complex or in protective custody so that he can get the best medical supervision and care possible."
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