Harvey Weinstein recording was not enough to charge him, DA says

Prosecutors said they did not have enough evidence in 2015 to charge Harvey Weinstein with sexual assault, despite an audio recording secretly taken at the behest of the New York Police Department by a woman who claimed the Hollywood film producer groped her.

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In the recording, published Tuesday by The New Yorker, Weinstein can be heard apologizing to Filipina-Italian model Ambra Battilana Gutierrez after she confronts him about the alleged assault.

"Why yesterday (did) you touch my breast?" Gutierrez asks in the recording.

"Oh please, I'm sorry,” he answers. “I'm used to that.”

In this Nov. 23, 2011 file photo, producer Harvey Weinstein, co-chairman of The Weinstein Company, appears during an interview in New York. Weinstein faces multiple allegations of sexual abuse and harassment from some of the biggest names in Hollywood. (AP Photo/John Carucci, File)

Credit: John Carucci

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Credit: John Carucci

The audio recording was made after Gutierrez went to the New York Police Department with a complaint about Weinstein. She told police that she was going over her modeling portfolio with Weinstein at his Tribeca office when he started to make crude comments about her breasts, The New Yorker reported.

She told police that "Weinstein then lunged at her, groping her breasts and attempting to put a hand up her skirt while she protested," according to The New Yorker.

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As she was speaking with NYPD Special Victims Division investigators, Weinstein called her, according to The New Yorker. The next day, they had her put on a wire and meet with Weinstein in hopes of getting a confession, the magazine reported.

Despite the recording, authorities said that they did not have enough evidence to file charges against Weinstein.

Chief Assistant District Attorney Karen Friedman Agnifilo said Tuesday in a statement that prosecutors lacked evidence because of the NYPD’s failure to work with prosecutors.

“The NYPD -- without our knowledge or input -- arranged a controlled call and meeting between the complainant and Mr. Weinstein,” Agnifilo said. “The seasoned prosecutors in our Sex Crimes Unit were not afforded the opportunity before the meeting to counsel investigators on what was necessary to capture in order to prove a misdemeanor sex crime.

“While the recording is horrifying to listen to, what emerged from the audio was insufficient to prove a crime under New York law, which requires prosecutors to establish criminal intent.”

Police defended their actions Tuesday in a statement, nothing that “experienced detectives and supervisors from NYPD’s Special Victims Unit” were part of the police investigation.

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“The recorded conversation with the subject corroborates the acts that were the basis for the victim’s complaint to the police a day earlier,” Deputy Commissioner Stephen P. Davis said. “This follow-up recorded conversation was just one aspect of the case against the subject. This evidence, along with other statements and timeline information was presented to the office of the Manhattan District Attorney.”

A police source, who was not identified, told The New Yorker that the decision not to charge Weinstein came after two weeks amid questions about her past, including reports from tabloids that Gutierrez had once accused an older businessman of sexual assault and then refused to work with prosecutors.

"We had the evidence," the source told The New Yorker. "It's a case that made me angrier than I thought possible, and I have been on the force a long time."

Accusations of sexual harassment and assault have piled against Weinstein in recent days, after The New York Times published a report detailing decades of sexual harassment complaints against the Miramax co-founder. He admitted to some wrongdoing in the wake of the Times report but on Tuesday "unequivocally denied" allegations of rape made by three women to The New Yorker.

"Any allegations of non-consensual sex are unequivocally denied by Mr. Weinstein," Weinstein spokeswoman Sallie Hofmeister said in a statement released to The New Yorker. "Mr. Weinstein has begun counseling, has listened to the community and is pursuing a better path. Mr. Weinstein is hoping that, if he makes enough progress, he will be given a second chance."

Weinstein was ousted from his position with The Weinstein Company on Sunday amid fallout from the sexual harassment allegations. Multiple celebrities have come out in support of his accusers.