Loyola University Chicago School of Law, JD 2019
In the midst of countless sexual misconduct allegations against some of Hollywood’s most powerful people, on November 9, 2017, Los Angeles District Attorney, Jackie Lacey, issued a statement outlining a plan of action. A special task force of veteran sex crimes prosecutors has been assembled to ensure a “uniformed approach to the legal review and possible prosecution of any case that meets both the legal and factual standards for criminal prosecution.” The Beverly Hills and Los Angeles Police Departments are conducting investigations of the accused as a rapidly increasing volume of sexual misconduct allegations are reported. Law enforcement and the special task force prosecutors are faced with legal and factual difficulties before any sexual misconduct allegations are sufficient for criminal prosecution. The legal elements of the alleged crime, the specific facts of each allegation, the existence of physical evidence, and the remedies available to the victims, are among the many convoluted factors that will dictate the ongoing investigations and prosecution of the allegations that are flooding Hollywood.
Investigating Allegations in Hollywood
Amid the seemingly perfect lives of the entertainment professionals we know and love, powerful predators have been lurking in the shadows for decades, preying on the less powerful in the industry. Harvey Weinstein, Bill Cosby, Kevin Spacey, Brett Ratner, and James Toback, are among the predators whose heavily concealed secrets of sexual misconduct have finally come to light. Recently, more and more victims in Hollywood are speaking out and effecting a change that has been long needed in the entertainment industry. Law enforcement is in contact with the District Attorney’s office but they have not yet received cases for possible criminal filing. Legal experts believe that the creation of the new task force speaks to the abusive culture hidden beneath the glitz and glam of Hollywood, but caution victims of the difficulties that prosecutors face concerning these cases.
Sexual Misconduct Laws in California
One difficulty the general public faces is understanding how sexual misconduct laws differ in each state and how that impacts prosecuting offenders. State laws differ on definitions, punishments, and remedies of sexual misconduct crimes. Due to the nature of sex crimes specifically, it can be difficult to meet the legal and factual standards that are required for criminal prosecution.
In order to bring a complaint to criminal court, the prosecution must state a viable cause of action that falls within the parameters of the state’s criminal statute. The California Penal Code (“CPC) governs cases concerning sexual misconduct that occurred in the state of California. The special task force in California must meet the requirements of Section 243.4 of the CPC to state a viable cause of action to prosecute an offender. At the most basic level, the prosecution must prove that the accused defendant unlawfully restrained another person and touched an intimate part of their body against the other person’s will, and that the touching was done for the specific purpose of sexual arousal, gratification, or abuse. For a California court to find the defendant guilty of sexual assault, the special task force must prove that the specific acts committed by the accused satisfy those elements. Hence the relevance of all specific facts and evidence surrounding the offense, which could render a more serious felony sexual battery conviction, which is punishable by longer imprisonment terms and more expensive fines.
Prosecuting Sex Crimes- Statute of Limitations Issue
Although California’s special task force consists of qualified sex crime prosecutors, there is no guarantee of success for every case that will be brought to the District Attorney’s attention (even with the catastrophic number of allegations being reported). Victims and prosecutors face procedural hurdles to bring suit in criminal court, which may leave the victim without a remedy.
Every crime has a statute of limitations requiring victims of a crime to file a complaint within a specified period of time after the offense occurred. For example, under Section 802 of the CPC, the statute of limitations for a misdemeanor is one year. This means that from the day the crime occurred, suit cannot be brought after one year has passed. Typically, as the severity of the offense increases, both the statute of limitations and the severity of the sentencing increase. For example, Section 800 of the CPC states that offenses that are punishable by imprisonment for up to eight years have a six-year statute of limitations. This is just one nuance of criminal investigations that law enforcement and the special force team must deal with in order to bring a viable claim to court.
The statute of limitations proved to be a great pitfall during the investigation into the sexual misconduct claims of child-star, Corey Feldman. LAPD launched an investigation into the events surrounding sexual abuse allegations made by Corey Feldman, now 46, that occurred when he was a minor. Unfortunately, the LAPD was forced to drop the investigation because the statute of limitations had already run on Feldman’s claims by the time he had filed. With this surge of sexual misconduct claims in Hollywood, we will likely see a number of claims never amounting to anything more than a tabloid story as statutes of limitations have likely run years ago.
Legislative Remedy for Statute of Limitations Issue
On January 1, 2017, a new bill went into effect in California, allowing all felony sex crimes committed on or after January 1, 2017 to be prosecuted at any time. This means there is no statute of limitations that can bar a victim from bringing suit against an offender who committed rape or other felonious sex crimes. Before this bill was enacted, there was a 10 year statute of limitations governing felony sex crimes and minors had until their 40th birthday to file a complaint. This bill was enacted in response to the sexual misconduct allegations that involved actor and comedian, Bill Cosby. (Whose case was declared a mistrial by a Pennsylvania judge due to deadlocked jury in June 2017) Senator Connie Leyva said that she hopes the enactment of this bill shows that justice has no time limit and will encourage victims of sex crimes to speak out.
Surviving in Hollywood Meant Staying Quiet
Sex crimes are difficult to prosecute given the sensitivity of the subject, the heavy reliance on specific facts that can be supported by evidence, and the legal elements that must be proven. Especially in Hollywood, the rich and famous offenders would intimidate, humiliate, and threaten their victims to ensure their reputation would not be tainted. Given the widespread flood of sexual misconduct reports in Hollywood, it seems there has been an understanding within the industry that when this behavior happens, it’s best to stay quiet. “It’s fear- fear is everywhere. It was fear of damaging your career- If you want to survive in Hollywood you don’t want to be known as a troublemaker.” Publicists even attempt to mitigate the damage for accused offenders that are growing more fearful with the constant press coverage. However, with the special task force in action, it is more likely that they will finally be outed.
Considering the volume of allegations flooding Hollywood, it is clear that cover-ups within the industry were common to protect the offender’s reputation. Powerful men in Hollywood, like Weinstein and Toback, covered up allegations by paying their victims off or threatening their careers to deter police involvement. Now, LAPD investigations are turning up evidence and statements yet many offenders continue to deny any wrongdoing. A New York drama teacher spoke about an encounter she had with Toback in 1997 stating, “It’s a common thread among many women I know…after someone mentioned they were sexually abused by a creepy writer-director, the response is, ‘Oh you got Toback-ed.” In an industry where reputation is everything, it is apparent that money and power overtook the importance of complying with ethical standards and workplace regulations.
Can Regulations Force Compliance with Ethical Standards in Hollywood?
The inherent power struggle that exists in the entertainment industry simply perpetuates this “norm” of getting “Toback-ed”. Sexual misconduct has evidently been routinely covered up because of the overwhelming control these men have in Hollywood. Hopefully the commitment of law enforcement, government officials, and legal experts to seek justice for victims of these heinous crimes results in a change in compliance with ethical standards in the entertainment industry. As further investigations are launched, the hope is that government officials will find more ways to not only prevent sexual misconduct from commonly occurring, but also enforce strict compliance with ethical standards and regulations in this industry.
The power struggle in Hollywood will always exist, but it is possible that stricter regulations against sexual misconduct in the workplace could ensure compliance with ethical standards and disable predators from covering up their crimes. Whether that means stronger enforcement of current regulations, or creating new policies and laws that will provide incentives for industry professionals to report instances of sexual misconduct, everybody in the industry will play a role in holding offenders accountable. Although prosecutors will inevitably face legal challenges in bringing criminal suits against offenders, their effort, along with new legislative remedies, and heavy media coverage, will begin to change the corrupt practices of the rich and powerful in Hollywood.