Prosecutors said Tuesday that they didn't have enough evidence to prove a model's claim that movie producer Harvey Weinstein groped her in 2015. Even if they changed their minds now, it would legally be too late.
Ambra Battilana Gutierrez told police the movie magnate touched her thigh, grabbed her breasts and asked "are these real?" during a meeting in his Manhattan office on March 27, 2015. Police investigated it as a possible case of forcible touching, a misdemeanor with a two-year time limit for bringing charges under New York law.
The case made headlines at the time, and Manhattan District Attorney Cyrus R. Vance Jr.'s office publicly explained then that it had conducted a thorough investigation and concluded "a criminal charge is not supported."
But the decision is getting new scrutiny since a dozen women — including actresses Angelina Jolie, Ashley Judd and Gwyneth Paltrow — told The New York Times and The New Yorker magazine that Weinstein sexually harassed or sexually assaulted them in various locales. Weinstein was fired on Sunday by the studio he co-founded with his brother, The Weinstein Co.
While he has apologized for causing "a lot of pain" with "the way I've behaved with colleagues in the past," his spokeswoman Sallie Hofmeister said in a statement that "any allegations of non-consensual sex are unequivocally denied by Mr. Weinstein."
Vance's office on Tuesday "strongly encouraged" anyone who may have been victimized by Weinstein in Manhattan to contact prosecutors. But Chief Assistant District Attorney Karen Friedman-Agnifilo defended the office's decision not to pursue Weinstein, who's behind films including "Pulp Fiction" and "Clerks," in 2015.
"If we could have prosecuted Harvey Weinstein for the conduct that occurred in 2015, we would have," she said.
When Gutierrez reported that Weinstein had groped her, police investigators ran a sting. They listened in to a call between the two and had Gutierrez record an encounter in a hotel, where Weinstein alternated between trying to persuade her to come into his room and apologizing for his conduct at his office. The recording was obtained by The New Yorker, which posted a portion on its website on Tuesday.
"Why yesterday you touch my breast?" the 22-year-old Italian model asked.
"Oh, please, I'm sorry, just come on in. I'm used to that. Come on. Please," he responded.
Friedman-Agnifilo said the recording was "horrifying to listen to" but was insufficient to prove criminal intent. She said the police arranged the sting "without our knowledge or input" and, coupled with other "proof issues," there was "no choice but to conclude the investigation without criminal charges."
New York Police Department Deputy Commissioner Steven Davis said detectives "used well-established investigative techniques" to present prosecutors with a recording that corroborated Gutierrez's complaint plus other statements and information.
Criminal defense lawyer Matthew Galluzzo, who worked in the Manhattan district attorney's sex crimes unit for three years until 2008, questioned the decision not to pursue charges against Weinstein.
"She can testify about what happened, and you've got him acknowledging he did something wrong," Galluzzo said.
The New Yorker also detailed allegations by Lucia Stoller, now Lucia Evans, who said Weinstein grabbed her head and forced her to perform oral sex on him during a meeting at his office in 2004, when she was a college student and aspiring actress. She said she told him to stop and tried to get away but the burly producer overpowered her.
The district attorney's office wouldn't comment on whether it would investigate those allegations, which Evans did not report to police.
Under New York law, making someone engage in oral sex by physical force or the threat of it is a first-degree criminal sexual act, and there's no legal time limit for bringing charges.
Pushing someone by the head could qualify as physical force, said Touro Law Center professor Richard Klein, a former criminal defense attorney who has written about sex assault laws.
But whatever the outrage over the allegations against Weinstein, prosecutors will be bound to judge any allegation on its own merits, "not influenced or controlled by the public opinion," Klein noted.
Years-old sexual assault allegations did go to trial against Bill Cosby this year, after a district attorney in Pennsylvania reversed his predecessor's 2005 decision that there was insufficient evidence to prosecute a woman's claim Cosby drugged and sexually assaulted her.
Cosby denied the woman's claim, saying the encounter was consensual. Jurors deadlocked, and a retrial is set for next year.