Harvey Weinstein and Connecticut's Sentencing Guidelines: An Opportunity for Review

More than two years after the first allegations against him emerged, Harvey Weinstein was convicted of committing a criminal sex act in the first degree involving one woman, H., in 2006 and rape in the third degree involving another, M., in 2013. He was acquitted of the two more serious charges of predatory sexual assault involving at least two women (H. and S., and M. and S, respectively) and one count of first-degree rape (M.). (The conviction of third-degree rape was as a lesser included offense of the first degree rape charge of which he was acquitted). More than 70 women have accused Weinstein of sexual misconduct. Some testified at the trial; others were interviewed or gave statements that were included in the prosecutor’s sentencing memorandum. According to the press accounts of the sentencing the state’s attorney’s sentencing memorandum detailed additional accounts of Weinstein victims—three dozen uncharged incidents and accusations.

In an unusual move for someone still facing criminal charges, Weinstein spoke at his sentencing hearing, at the conclusion of which Judge James Burke sentenced Weinstein to 20 years on the criminal sex act in the first degree count and three years, to run consecutively, on the rape in the third degree count. The Judge remarked: “This is a first conviction, but it is not a first offense.” We know this because a reporter was able to take down that comment by the court. But we don’t have access to the sentencing transcripts to know exactly what transpired. Nor do we know how much of the information at sentencing was new to the court and how much had already been introduced during the court of the trial. Therefore, at present we have no way to know whether the trial court imposed the 23 year sentence based on the testimony of H., M., and S; the trial testimony of the uncharged misconduct victims; Weinstein’s own misguided statement; the sentencing memo by the prosecutor, information outside the record that was reliable and not materially false; or other victim impact evidence. Consequently, we cannot assess whether Weinstein’s due process rights were violated.