New Yorkers love a big trial.
From Joan Collins, who resisted a claim from her publisher over an “unpublishable” manuscript, to Leona Helmsley’s “only little people pay taxes” prosecution, to a long line of swindlers, cheats, celebrity divorces and mafia take-downs, each scandal-strewn case becomes part of the metropolis’s dirty jungle lore.
Short of an intervening settlement, it appears that the Duke of York is to join a long list of high-profile defendants. And, with the prospect of a senior British royal on trial, it is a case that would go down in city history.
Prince Andrew’s civil case does not carry the risk of jail time. But in a city obsessed with money, power and prestige, a famous prince in the dock, facing further losses of each after being forced to withdraw from royal duties, could be a late summer feast of contentious jurisprudence for a city desperate for pandemic distraction.
The prospect of a jury trial follows the prince’s attorney’s decision on Wednesday to file legal papers strongly resisting sexual abuse claims brought against him by his accuser, Virginia Giuffre. In the papers, Andrew’s legal team denied the allegations and then sought to blame Giuffre for being partly responsible for her abuse. That move has been criticized as “cruel” and “inappropriate” by legal experts.
Giuffre claims she had sex with the prince when she was 17 and a minor under US law. She says they were introduced by the disgraced late US financier Jeffrey Epstein, who killed himself in prison while awaiting trial for sex crimes, and the convicted sex trafficker Ghislaine Maxwell.
The response to Giuffre’s complaint denied all allegations and questioned her lawsuit’s validity on jurisdictional grounds. It also demanded a jury trial, notwithstanding that as Giuffre had already requested that, it’s a fairly meaningless demand. To many experts, it seemed largely unremarkable save for two of the 11 entries marked Affirmative Defense.
In one, titled Damages Contributed to by Others, his attorneys wrote: “Assuming, without admitting, that Giuffre has suffered any injury or damage, Giuffre and/or others, who are not Prince Andrew, contributed in whole or in part to the alleged damage.”
In the other, titled Consent, they wrote: “Assuming, without admitting, that Giuffre has suffered any injury or damage alleged in the Complaint, Giuffre’s claims are barred by the doctrine of consent.”
Sexual abuse attorneys and former sex crimes prosecutorssay both statements are astonishingly tone-deaf, both in public relations terms and if those defense claims come before a New York jury. The prince is effectively making the argument that Giuffre, a victim of the Epstein-Maxwell conspiracy to traffic minors, consented to having sex while being trafficked, and while being under the age of majority.
The first statement – Damages Contributed to by Others – is the response of a “cruel person and an outrage because Andrew did not have to assert that as a claim”, said the former sex crimes prosecutor Wendy Murphy, a professor of sexual violence law at New England Law | Boston.
“To say that she was acting of her own volitions and causing herself to be raped by a man with so much more power is … a dangerous thing to do. It’s going to cause enormous negative publicity for the prince, as it should, and if you ask a jury to blame a kid, they’re going to come back at you with a vengeance,” Murphy added.
Victims’ lawyers agreed that the prince was attempting to blame the victim. “Prince Andrew denied ever meeting Ms Giuffre and denied that they ever had sexual contact. Now in his answer to the court, he is still denying it, but unbelievably says if the acts occurred, they were consensual,” said Eric Baum of Eisenberg & Baum.
The question of how a 17-year-old could consent to systematic sex trafficking is baffling to Murphy, who points out that under sex trafficking laws, consent is illegal as a matter of public policy. “A human being cannot consent to trafficking any more than they can consent to slavery,” she said.
Murphy argued that the Duke’s affirmative “Consent” defense – while technically legal under an assault and battery statutes – is “inappropriate … when you know, and the allegations are, this was a systematic trafficking industry, an illegal enterprise that was extraordinarily well-established and just grotesque in terms of how they were soliciting and choosing vulnerable girls.”
In a statement to NBC News on Wednesday, Giuffre’s attorney, David Boies, responded to the filing: “Prince Andrew continues his playbook denying any knowledge or information about the claims despite photographic evidence and third-party testimony to the contrary. He also continues his pattern trying to blame the victim for her abuse.”
Legal experts have also voiced opinions that the prince’s legal strategy does not preclude a settlement with a statement of responsibility, as Boies has hinted would be a part of his client’s terms. But Giuffre’s legal team still have to prove that the alleged touching was offensive and non-consensual.
“She has to prove that it was non-consensual touching, and Andrew could win by saying it was consensual – and he can do that at trial,” says Murphy. “What he does not have to do is assert it as an affirmative defense. Politically, it’s a tin-eared thing for a lawyer to do in a case like this, where the public is well aware that this is about trafficking, not an 18-year-old boy having sex with his 15-year-old girlfriend.”
All in all, if a trial does go ahead in New York, it appears all but certain to join the storied list of the city’s most shocking scandals: an elite list of bold-faced names that no one wants to be on.
• This article was amended on 3 February 2022. An earlier version referred to Andrew “demanding a jury trial notwithstanding that, as the defendant, it’s not Andrew’s to demand”. To clarify: a defendant can ask for a jury trial but as Giuffre had already requested that, it’s a fairly meaningless demand.