In a Friday column for Spectator, Former Harvard Law School Prof. Alan Dershowitz linked alleged Jeffrey Epstein enabler Ghislaine Maxwell to powerful political and academic figures, trashed accuser Virginia Roberts Giuffre (who is suing him and whom he is suing), and encouraged the public to remember that Maxwell is innocent until proven guilty.
Dershowitz also argued that Ghislaine Maxwell “may” be able to assert a statute of limitations defense to the charges she now faces:
In addition to presenting factual defenses, Maxwell’s lawyers may argue that the Statute of Limitations have expired on these 20-plus year allegations. They may also argue that Maxwell is protected by Epstein’s original plea deal that expressly included Maxwell as someone who received immunity.
While Maxwell “may” make such an argument, it probably won’t go anywhere. The crimes alleged appear to be within the statute of limitations currently on the books; however, we would need a few more facts to be sure of that assertion as to two of the alleged victims.
As Law&Crime reported Thursday, Maxwell is charged with six counts for alleged crimes which occurred between 1994 and 1997:
(1) Conspiracy to Entice Minors to Travel to Engage in Illegal Sex Acts (18 U.S.C. § 2422; 18 U.S.C. § 371);
(2) Enticement of a Minor to Travel to Engage in Illegal Sex Acts (New York Penal Law § 130.55; 18 U.S.C. § 2422; 18 U.S.C. § 2);
(3) Conspiracy to Transport Minors with Intent to Engage in Criminal Sexual Activity (New York Penal Law § 130.55; 18 U.S.C. § 2423(a); 18 U.S.C. § 371);
(4) Transportation of a Minor with Intent to Engage in Criminal Sexual Activity (New York Penal Law § 130.55; 18 U.S.C. § 2423(a); 18 U.S.C. § 2);
(5) Perjury (18 U.S.C. § 1623);
(6) Perjury (18 U.S.C. § 1623).
Most federal crimes have a statute of limitations of five years. However, there are exceptions. One such exception (18 U.S.C. § 3283) applies to sex crimes against any “child” under eighteen years old: prosecution can occur “during the life of the child, or for ten years after the offense, whichever is longer.” Here is the full text of that exception:
No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse, or kidnaping, of a child under the age of 18 years shall preclude such prosecution during the life of the child, or for ten years after the offense, whichever is longer.
Another similar exception for kidnapping and child abduction offenses also exists; however, it appears not to apply to this case.
In 1994, the year Maxwell’s conduct is alleged to have begun, the law was different. At that time, it allowed prosecutions before victims reached the age of 25:
No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse of a child under the age of 18 years shall preclude such prosecution before the child reaches the age of 25 years.
That version of the extended statute of limitations goes back to 1990, one 9th Circuit Court of Appeals case explains. The “life of the child” extension occurred in 2003. The additional ten year extension (for cases involving victims who died) came in 2006.
The issue of how to apply the changes to the statute of limitations has been litigated in the past. So have issues surrounding alleged unconstitutional ex post facto attempts to resurrect prosecutions under § 3283 which would have been barred by the expiration of the statute of limitations under the original law.
Ex post facto laws are unconstitutional under Article 1, Section 9 if they seek to retroactively criminalize conduct which was completely legal when it was committed. The analysis becomes tricky when statutes of limitations are involved. Legally, statutes of limitations can be extended so long as they had not expired entirely for the particular conduct subject to a criminal inquiry.
As the 9th Circuit Court of Appeals explained in a 2006 case involving child sex crimes, if “the statute of limitations had not yet run when the 2003 amendment took effect,” then prosecutions are not barred moving forward under the new statue for victims who are still alive. The 2003 amendment became law April 30th of that year.
Here is how the law appears to apply to Maxwell’s case, where the federal indictment alleges three victims.
Victim 1 was “approximately 14 years old” when she was allegedly abused between 1994 and 1997. If she was 14 in 1994, she was approximately 23 in 2003 when the statute of limitations was extended. Therefore, her case can be prosecuted without violating the constitution’s ban on ex post facto prosecutions.
Victim 2 was under 18, the indictment says, when she was abused in 1996. If we assume she turned 18 in 1996, she therefore turned 25 in 2003 when congress extended the statute of limitations. We would need more facts (e.g., the victim’s birth date) to complete this analysis, but it appears the prosecution of Victim 2’s case is probably within the law because she was probably under 25 when the statute of limitations was extended on Apr. 30, 2003.
Victim 3 was under 18 between 1994 and 1995, the indictment alleges. If she turned 18 in 1995, she would have turned 26 in 2003 when congress extended the statute of limitations. If that is the case, prosecution would be impossible; the old statute of limitations allowed prosecutions before the victim turned 25. Anything after the victim’s 25th birthday would have been banned. However, we (again) do not have all of the facts: it’s possible the victim was several years younger than 18. Assuming she was, this prosecution would also be legally acceptable.
The bottom line is that the these prosecutions are acceptable for any victim who was under 25 on April 23, 2003, when the statute of limitations was extended.
In his column, Dershowitz said he and his wife were “introduced to Ghislaine Maxwell by Sir Evelyn and Lady Lynne de Rothschild” and that Maxwell was “generally in the presence of prominent people such as Bill and Hillary Clinton, Nobel Prize-winning scientists, presidents of universities, and prominent academic and business people.”
“We never saw her do anything inappropriate,” Dershowitz said. “We knew her only as Jeffrey Epstein’s thirty-something girlfriend.”
He then went on to offer factual rebuttals to the accusations against himself and several others.
Copy of Ghislaine Maxwell I… by Law&Crime on Scribd
[photo by Sarah Silbiger/Getty Images]
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