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Harvey Weinstein was today, 24 February, found guilty of criminal sex act, and rape in the third degree involving two different women. He was acquitted of three other charges.

The criminal sex act refers to his forcing oral sex on Miriam Haley which carries a maximum sentence 25 years and a minimum sentence of five years. Third degree rape has a markedly lower penalty, with a maximum sentence of four years in prison and no minimum, although a conviction would require Weinstein to register as a sex offender. The witness accused the producer of taking her up into his Manhattan hotel room in 2013, blocking her inside and demanding that she undress. He then raped her.

But what differentiates third degree rape from first or second degree? How is it classified?

New York law states third degree rape is when a “person is guilty of rape in the third degree when he or she engages in sexual intercourse with another person”:

• Who is incapable of consent by reason of some factor other than being less than 17 years old
• Who is less than 17 years old, and the defendant is 21 years old or more or
• Without such person’s consent, which is withheld for some other reason than incapacity to consent.

Second degree rape is defined as when an adult “engages in sexual intercourse with another person less than fifteen years old” or “with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated”. The Weinstein jury was not given the option of choosing this category – they were asked to decide to classify whether it was first or third degree rape.

According to New York legislation, first degree rape (the most serious of rape charges) is when a perpetrator:

• Engages in sexual intercourse with another person by forcible compulsion
• Engages in sexual intercourse with another person who is physically helpless
• Engages in sexual intercourse with another person who is less than 11 years old
• Engages in sexual intercourse with a child who is less than 13 years old and you are at least 18 years old.

If you’re confused, don’t worry – it’s complicated. The key difference between first and third degree rape is “forcible compulsion”, which is defined as “the use of physical force” or “by a threat, express or implied, which places a person in fear of immediate death or physical injury to himself or herself [or another person] or in fear that he or she [or another person] will immediately be kidnapped.” An example could be a man holding a knife to the neck of a woman, demanding she remove her clothes and then has sex with her. Weinstein was acquitted of this charge.

The categorisation is questionable – all rape by nature requires forcible compulsion. Our concept of consent is evolving, but what we can ascertain from the jury’s verdict is that the jury did think Weinstein committed a nonconsensual act, but didn’t apply violent force.

The producer does still face a heavy sentencing. As stipulated above, the criminal sex act charge which he was found guilty of carries a minimum of five years in prison and a maximum of 25 years. He also faces four charges relating to sexual assault in LA.

Weinstein – who had pleaded not guilty to five counts – will be sentenced on 11 March.

From: BAZAAR UK