The Times - UK (2022-01-13)

the times | Thursday January 13 2022 5

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proceed that far” — an apparent prod

to the duke’s legal team to settle.

“legally sufficient”

Andrew’s lawyers argued that her alle-

gations were too vague and did not rise

to the level of sexual abuse. Judge

Kaplan wrote that “the allegation that

[Giuffre] was forced to sit on [Andrew’s]

lap while he touched her is sufficient to

state a battery claim under New York

law, regardless of which part(s) of her

body defendant ultimately is alleged to

have touched”. He said she only needed

to allege “that there was ‘bodily con-

tact, that this contact was offensive and

that the defendant intended to make

the contact without plaintiff’s consent”.

He said any finding that the touching

satisfied the duke’s sexual desires or

was done “with knowledge ‘that [Giuf-

fre] was a sex-trafficking victim being

forced to engage in sexual acts with

him’ would permit a reasonable person

to find that the alleged contact was in-

appropriate in all circumstances, to say

nothing of the allegedly forced sex acts

or sexual intercourse” – which Giuffre

also alleged in her complaint. The judge

added, partly quoting a past case, that

“it should go without saying that the

alleged conduct, if it occurred, reason-

ably could be found to have gone

‘beyond all possible bounds and is intol-

erable in a civilised community’ ”.

battery and emotional distress

Kaplan rejected Andrew’s argument

that these separate claims arose from

the same facts and were “duplicative.”

The judge said this was not so. He said

that besides battery, she also alleged

that “the defendant caused her to wit-

ness the abuse of another victim”, a sep-

arate injury, relating to the fact that

another alleged victim was made to sit

beside her on Andrew’s lap.

new york law not

unconstitutional

The judge said the law allowing a two-

year window of time for victims of his-

torical sexual abuse to seek compensa-

tion was “reasonable”. Other states had

allowed ten years, he said. He also re-

jected arguments that the law was un-

constitutional because it allowed for

sexual abuse claims from victims who

were under 18 at the time, but over 17 —

the age of consent in New York.

Judge destroys Andrew’s arguments

Will Pavia, Charlotte Wace

Q&A

Can the duke appeal against

this ruling? The duke’s

lawyers could seek an

“immediate interlocutory

appeal” of the ruling while the

rest of the case proceeds.

Legal experts thought this

unlikely, and unlikely to

succeed. Mitchell Epner, a

former federal prosecutor

now with the New York firm

Rottenberg Lipman Rich, said

the ruling was “careful” and

“well-reasoned” and “virtually

certain to take the case to

trial”. He said it was

“extremely unlikely” that an

appeal would be allowed, and

if it were, Kaplan’s ruling was

“virtually certain to be

affirmed.”

What happens next? Giuffre’s

lawyers have already asked

the duke to supply evidence

to support an alibi he offered

during a Newsnight interview

in 2019, that he took Princess

Beatrice to a party at a Pizza

Express in Surrey on the night

when Giuffre claims he had

sex with her. Prince Andrew

also denied her allegation that

they danced at the Tramp

nightclub in London, where he

sweated “profusely”, saying it

could not be him because a

wound sustained during the

Falklands War left him unable

to sweat. Giuffre’s lawyers

asked the duke for the names

of anyone he met in the Pizza

Express and for documents

showing his inability to sweat:

they say the prince has not

provided either.

Will the duke be questioned

too? As part of the case, he

will face a video-taped

interview lasting seven hours,

excluding breaks. He would be

questioned under oath, and

could be charged with perjury

if he was deemed to have lied.

Andrew’s lawyers would be

present and could object to

the form in which questions

were asked, but they would be

unable to provide him with

any guidance as to how he

should answer. The only

subjects off limits would be

those covered by attorney-

client privilege, marital

privilege, doctor-patient

privilege or clergy privilege.

Andrew could be questioned

about anything he has ever

told his mother that might be

relevant, or his daughters.

Giuffre’s lawyers could then

play clips of this “deposition”

to the jury at the trial.

What about the duchess, and

Princess Beatrice? Giuffre’s

lawyers could question

Beatrice about the evening of

the Pizza Express party. They

may also want to question the

duchess about the evening

and the ensuing days. If they

were still married she could

have claimed the right not to

testify, and nothing could

have been inferred about her

refusal to speak about it.

Can Andrew refuse to answer

questions? The duke could

invoke his rights under the

Fifth Amendment of the

American constitution not to

serve as a witness against

himself in a matter where he

faces potential criminal

liability. But this would have

repercussions for the civil

case. The duke could also

refuse to participate any

further in the case. The court

does not have the power to

force him to answer questions:

it would instead enter a

default judgment against him

that Giuffre’s lawyers would

seek to enforce where he has

assets. Both courses would be

a PR disaster for the royals.

Profile

T

he American

judge who

ruled that the

sexual assault

case against the

Duke of York should go

ahead is no stranger to

high-profile cases

(Keiran Southern

writes).

Lewis Kaplan, 77, has

dealt with New York

mobsters and jihadists

held at Guantanamo

Bay. The Harvard Law

School graduate was

nominated to a federal

posting by President

Clinton in 1994 and

maintains a stellar

reputation.

He was the judge in a

series of racketeering

cases involving top

figures of the mafia,

including those of 14

members of the

Gambino crime family.

In 2011 the judge

sentenced Ahmed

Khalfan Ghailani to life

for the bombing of two

US embassies in Africa

in 1998.

It is unlikely Kaplan

will be overawed by

having a British prince

in his court, according

to a lawyer who has

argued cases before the

judge. Fred Lichtmacher,

a New York-based

plaintiff lawyer, said:

“Judge Kaplan is an

intellectual, he is

incredibly fair, he’s as

brilliant a judge as you

could ever be in front of.

I don’t think he will care

who is in his courtroom.”

SHUTTERSTOCK

Andrew with a 17-year-old Virginia Roberts in 2001, watched by Ghislaine Maxwell, whose townhouse the photo was taken in

The Duke of York ’s attempt to halt the
sexual assault lawsuit filed against him
by Virginia Giuffre was demolished by a
New York judge yesterday.
Judge Lewis Kaplan offered a point-
by-point rebuttal of the duke’s argu-
ments in a 46-page opinion, repeatedly
siding with Giuffre’s lawyers and un-
derlining how difficult and damaging
the case could prove for Andrew at trial.
Giuffre, 38, is suing for battery and
for the intentional infliction of emo-
tional distress, saying that she was traf-
ficked by Jeffrey Epstein and Ghislaine
Maxwell and forced to have sex with
Prince Andrew when she was 17. Her
suit alleges that she was sexually
abused by him in London, New York
and on Epstein’s Caribbean island.
The duke denies the allegations but
his lawyers had sought to have the case
dismissed not on its merits but on legal
technicalities, focusing their argu-
ments on a 2009 settlement that
Giuffre reached with the convicted sex
offender Epstein, in which they claimed
Giuffre had signed away her right to sue
Andrew. Judge Kaplan rejected every
one of their arguments.

the 2009 settlement

Facing serious federal charges of sex-
trafficking dozens of teenagers, Epstein
agreed a deal in 2007 in which he
pleaded guilty to lesser charges and
prosecutors pledged not to go after him
or his possible co-conspirators. Epstein
also agreed that those identified by
prosecutors as his alleged victims could
sue him under federal laws. Giuffre did
so in 2009, as an alleged victim of sex
trafficking, “sexual exploitation” and
sex abuse images, relating to pictures
he was said to have taken of her. She
said Epstein’s “adult male peers, includ-
ing royalty” had slept with her.
The $500,000 settlement she agreed
with Epstein included a release agree-
ment protecting “other potential
defendants” from litigation. Andrew’s
lawyers said this meant him. But Judge
Kaplan said this was far from clear. The
complaint it settled alleged that Epstein
committed violations of federal laws,
including sex trafficking. But “it
nowhere alleges that this defendant
[Prince Andrew] committed any,” he
wrote.
It was not clear that the duke would
have been subject to the jurisdiction of
the court in Florida where she sued
Epstein, even as a potential co-conspir-
ator, he said. Asking what Epstein and
Giuffre had intended by the agreement,
Kaplan writes that while Epstein may
have hoped to avoid being dragged into
further lawsuits, Giuffre would have
sought to retain the freedom to pursue
other claims. He said that because the
agreement was “ambiguous” and there
were “at least two reasonable interpre-
tations of the critical language” in it, it
was not a basis to dismiss the case.

fighting shy of
settlement at trial

In arguing that he was covered by the
settlement, the duke had to argue that
he could have been a defendant in the
2009 case. In a footnote Kaplan seems
to suggest that Andrew may not want to
argue before a New York jury that he
could have been sued in Florida for sex
trafficking in 2009. Saying it could be
raised at trial, he adds “should the case

An appeal against

Lewis Kaplan’s

ruling would be

unlikely to succeed,

legal experts said