By SUSAN CALLAHAN, Associate Editor and Featured Columnist
On Thursday, December 14, 2017, the New York Times published an article describing multiple accusations of forcible rape against the hip hop mogul, Russell Simmons. Simmons, now 60, has denied the accusations through his attorney.
However, ominously, the Times article notes that the New York Police Department has opened an investigation into the allegations. An unnamed source in the police department also added that the statute of limitations on the alleged crimes has passed.
Interestingly, no details were given by the Times or the other reports citing the Times about exactly what the statute of limitations for rape is in New York. And, if the statute of limitations for the rapes has passed, then why would the police have opened an investigation?
All of which set us out to shed some light on the statute of limitations for rape in New York. What we found was surprising and rases more questions.
There is No Statute of Limitations for Rape in New York
New York has no statute of limitations for rape. As with murder, a case can be brought at any time.
Here is the statute, N.Y. Crim. Proc. Law 30.10:
" A prosecution for a class A felony, or rape in the first degree as defined in section 130.35 of the penal law, or a crime defined or formerly defined in section 130.50 of the penal law, or aggravated sexual abuse in the first degree as defined in section 130.70 of the penal law, or course of sexual conduct against a child in the first degree as defined in section 130.75 of the penal law may be commenced at any time."
Are those last 6 words the start of Russell Simmons nightmare? If a case can be "commenced at any time", does he face prosecution for the rapes that are alleged to have occurred as far back as 1988?
Perhaps not. Here's where it gets tricky. The statute of limitations for rape was abolished in 2006, precisely June 23, 2006. However, there is no retroactivity. If a rape was committed prior to the date the new law came into force, then it would be governed by the old statute of limitations of 5 years.
But Simmons still may not be in the clear. If the reports of his crimes are true, then it is highly unlikely that he would have suddenly stopped raping on June 23, 2006. For any rapes he may have committed after that date --- and that would cover the last 11 years --- then he is in danger of prosecution.
With new allegations surfacing, it may only be a matter of time before an allegation falls with the last 11 years.
What Constitutes Rape in New York?
The relevant statute is New York Penal Law 130. Rape can be First Degree, Second Degree or Third Degree. There are many different types of sexual crimes that are involved in the allegations against Russel Simmons, including forcible rape and perhaps rape against a person who was physically helpless at the time.
Rape is defined as "a person is guilty of Rape in the First Degree when he or she engages in sexual intercourse with another person who is incapable of consent by reason of being physically helpless."
In most of the potential cases against Simmons, the women were conscious. However, one of the women stated that she was so traumatized that she appeared to disassociate. New York law says physical helpless ness means " means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act" so this allegation may fall under this section.
Kidnapping and False Imprisonment May Open the Door to Other Charges
In several of the allegations, Simmons is alleged to have tricked the women, offering them rides to a destination or to drop them off at home, only to later deliver them to his apartment. In one account, he is alleged to have used his driver to help to block the women's escape route.
If Simmons tricked or use a false premise to "capture" and trap a woman in his apartment or in any way prevented a woman from leaving, this could be the basis for a charge of kidnapping.
Kidnapping, as a Class A felony, has no statute of limitations in NY. So Simmons can be pursued if he is charged with this crime. If he restrained anyone with the intent to sexually assault them, and the restraint continued for more than 12 hours, it is a Class A felony.
Kidnapping is serious enough in its own right. But again, it opens up another perhaps more serious avenue. Kidnapping under a state law is one of the 8 crimes that a Federal prosecutor can use to base a RICO claim against Simmons.
RICO is a Federal racketeering statute but it has been used broadly to over a pattern of many types of crimes. It may be that Simmons' use of the driver to block a woman or use of offices an apartments to trap women may be deemed a pattern of organized crime.
The web of troubles may be just beginning for Russell Simmons.