I’m sure everyone’s read and talked about Woody Allen recently, what with his award and then Dylan Farrow’s open letter in the NY Times reminding everyone that ‘hey, this guy sexually molested me’.
Allen has rejected these claims again and reminded the world that a Connecticut prosecutor investigated the allegations and declined to pursue charges.
It ain’t gonna happen. He’s not gonna get reprosecuted. But, for purely academic purposes, could he?
That depends on a few things: mainly the facts of the allegations and the dates of the allegations. Assuming that the incidents were alleged to have occurred in 1992, the statute of limitation in effect at the time was 5 years for a sexual assault. That means the SOL ran out in 1997 and Sexual Assault in the First Degree, a Class B felony, is no longer a viable option.
There’s a new statute of limitations (none) for sex assault crimes with DNA evidence, but that wouldn’t apply here, nor would the Supreme Court’s convoluted rules for “lapsed” and “non-lapsed” statutes of limitation in Connecticut1
UConn Law Criminal Clinic professor Todd Fernow agrees:
The passage of time has likely barred the possibility Allen could be prosecuted on sexual abuse charges, said Todd Fernow, a law professor at the University of Connecticut. Under Connecticut law, the statute of limitations for all but the most serious sexual crimes lasts for five years from when a police report is filed, which if applied to Dylan Farrow’s claim of having been abused in 1992 would have run until 1997, Fernow said.
So does the original prosecutor who declined to pursue the allegations:
Connecticut state prosecutor Frank Maco in 1993 declined to bring charges against Allen and retired in 2003. He declined to speculate on Sunday about whether a criminal case could be brought based on the allegations Dylan Farrow has outlined. But he added that whether the statute of limitations had passed would depend on several factors including the nature of the evidence and changes in the law in the past decade. Maco said that he examined the question before he retired and did not believe then a criminal case was still possible. “When I left office, I was satisfied that the statute of limitations had long run in that case,” he said.
But a friend posed the question just the other day: can Allen be prosecuted for something else? That something else being the Class A felony – for which there is no statute of limitations – of kidnapping in the first degree.
Specifically, kidnapping in the first degree provides that:
(a) A person is guilty of kidnapping in the first degree when he abducts another person and: (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually; or (B) accomplish or advance the commission of a felony;
In order to convict someone of Kidnapping in the first degree, the prosecution must prove beyond a reasonable doubt that a person “abducted” another person2 and then further restrained the abducted person in order to rape the victim.
So the question is, could Allen be guilty of this? The answer, in my opinion, is it depends. It would depend specifically on the facts of the allegations: did Farrow allege that Allen shoved her in a car and drove her to an abandoned building on the outskirts of town and there touched her? Or is the allegation that when she was in his house, he would touch her sexually?
These factual distinctions are critical because in 2008, the Connecticut Supreme Court clarified the requirements of Kidnapping in the First Degree, ruling that restraint that is required for the commission of another felony and is merely incidental is not kidnapping. In other words, the restraint of liberty must be over and above and independent of any restraint that is required to commit sexual assault.
But this, of course, is a deeply factual scenario. Clients have been convicted of kidnapping for preventing the victim from leaving the room so as to enable them to sexually assault the victim and they have been convicted of dragging a victim to the back of an alley to perform a sexual assault.
As I said, I don’t think anything will come of it at this stage, but the possibility certainly exists, however academic, that a prosecution for kidnapping might be viable.