The state stops the clock when an alleged offender is out of state, keeping old felony cases alive for prosecution — but there are practical hurdles and possible constitutional challenges.

Rose McGowan's allegation that Harvey Weinstein raped her at the 1997 Sundance Film Festival could theoretically result in a prosecution, despite the fact that the statute of limitations at the time was only four years and thus seemingly expired in 2001. However, a prosecution could face constitutional objections and would have to surmount practical difficulties.

McGowan did not respond to a request for comment. A Park City, Utah, police dispatcher told The Hollywood Reporter that no complaint had been filed there relating to McGowan’s allegations. There is no indication that any move by authorities is imminent.

Indeed, “police and prosecutors have nearly unlimited discretion to decide what cases to investigate and prosecute,” said University of Utah law professor Shima Baradaran Baughman. “There is almost no oversight of police decisions to investigate or arrest or any external oversight of prosecutors’ decisions to press charges.”

Through a spokesperson, Weinstein has previously denied "any allegations of non-consensual sex.” His criminal defense attorney, Blair Berk, had no comment for this article. More than 30 women have accused Weinstein of sexual harassment and, in several cases, rape and sexual assault. New York and London police are investigating claims.

To be prosecuted in Utah today, Weinstein’s alleged conduct would probably have to meet the legal definition of rape or another sexual assault felony, and police and prosecutors would have to be confident in the adequacy of the evidence in order to pursue the matter since losing such a high-profile case would be seen as a tremendous blow. Conduct from 1997 that constituted a misdemeanor might also be prosecutable today, but would probably be viewed as not worth pursuing, given the minimal punishment and the risk of an acquittal.

Stopping the Clock

If McGowan files, the reason her allegations would not be legally stale relates to the interaction of several statutes and cases.

In 2008, the Utah legislature eliminated the statute of limitations altogether for rape, sexual assault and various other serious felonies, but that alone is not enough to explain why McGowan’s allegations are not time-barred. That's because Utah Supreme Court and U.S. Supreme Court decisions make clear that, for equitable and constitutional reasons, a dead case cannot be revived by lifting the statute of limitations later. In other words, McGowan’s case would need to have survived to 2008 — rather than expire in 2001 — in order to gain the benefit of the removal of the statute of limitations.

But as it turns out, McGowan’s case did not expire in 2001, and in fact was still alive in 2008.

That's because Utah, like a number of other states, has a provision that stops the clock on the statute of limitations whenever the potential defendant is out of the state. In legal terminology, stopping the clock is referred to as “tolling” the statute of limitations.

Here, what is sometimes called “absentee tolling” is key, because Weinstein was out of the state of Utah for most of the 1997-2008 period, since he presumably visited the state usually just for Sundance. That would probably amount to less than two weeks a year in state. While he was out of the state, the statute of limitations clock would have been paused.

As a result, the clock would count down very slowly from 1997 — most of the time it would be paused — and by 2008 there would still have been over three years left on the clock for authorities to prosecute the allegations. Even a few extra weeks here and there in-state would not be enough to run down the clock before 2008, when the time limitation was removed altogether.

It may seem odd or unfair that absentee tolling operates even when the potential defendant repeatedly returns to the state as Weinstein did when he visited Sundance year after year, and even though Weinstein would have been readily locatable in New York or California by authorities, had there been a complaint. After all, he wasn’t in hiding or fleeing the jurisdiction.

But the Utah Supreme Court says that doesn't matter: In a 2013 case, the court held that absentee tolling allowed seemingly-late prosecution of a defendant whose whereabouts in New Mexico were known to authorities and who repeatedly returned to Utah after the offense, and in a 1987 case, the same court upheld the conviction of a defendant who couldn’t have returned to the state, because he was in prison elsewhere.

Utah authorities “have the opening to [prosecute] and can't hide behind the statute of limitations,” said Loyola Law School criminal law professor and former prosecutor Laurie Levenson.

Constitutional Challenges

But perhaps the Utah Supreme Court doesn’t get the last word. Is absentee tolling against a easily locatable defendant constitutional? Maybe not. The Constitution’s Commerce Clause — not usually referenced in criminal cases — might provide the basis for a challenge. Indeed, the U.S. Supreme Court has held that civil absentee tolling placed an undue burden on interstate commerce — and therefore violated the Commerce Clause — when applied against an out-of-state corporation that could have been sued before the statute of limitations ran out.

Lower courts have extended the ruling to also protect out-of-state individuals from tardy civil suits. (Interestingly, Utah’s civil absentee tolling law was amended in 2009 to bar absentee tolling in civil suits if the out-of-state party is subject to Utah jurisdiction.)

But those were civil cases. Criminal law may be a different matter.

“I am not sure whether the Commerce Clause analysis would apply the same way to a criminal, as opposed to a civil, statute of limitations,” said University of San Diego law professor Walter Heiser, who has written on civil absentee tolling. “A State’s interests in deterring and punishing criminal conduct may well outweigh any concerns about the effect on interstate commerce.”

Yet, in a 1941 case, the U.S. Supreme Court did indeed use the Commerce Clause to invalidate a California criminal law, an “anti-Okie” statute that barred relocation of indigents into the state. However, that crime was inherently interstate, whereas rape is not. But Weinstein’s trips to Utah were for business purposes; he was engaged in interstate commerce. That’s a lot of “on the one hand” and “on the other hand.”

More recently, in a somewhat different application of the Commerce Clause, the Court in 2005 ruled that federal marijuana laws preempted California’s medical marijuana statute. The Court also invalidated a state sedition law in 1956 and portions of Arizona’s anti-immigrant statute in 2012, both of these on the grounds that federal law preempted the state enactments. Although those two cases did not invoke the Commerce Clause, the federalism analysis may be relevant.

Yet another Supreme Court precedent is adverse to Weinstein, a 2000 case that struck down portions of the federal Violence Against Women Act. The Court held that the “non-economic, criminal nature” of such violence took such assaults outside the ambit of the Commerce Clause. That narrow view ignores the economic aspects that many say is inherent in all oppression of women but, ironically, could mean that absentee tolling would survive and Weinstein would lose.

Or a court might be swayed by the intertwined nature of Weinstein’s economic and alleged criminal activity. After all, his alleged victims and his Sundance visits were work-related. A court might decide that under those circumstances, the Commerce Clause could indeed come into play and hand Weinstein a win.

In any event, the relationship of the Commerce Clause, state criminal law and the Constitution’s Tenth Amendment (which broadly reserves powers to the individual states) is obviously complex. How courts would rule on such tangled questions is uncertain, and were Weinstein to be tried and convicted, an appeal could even go to the High Court.

Other constitutional arguments on Weinstein’s behalf — based on the Due Process Clause, Equal Protection Clause and the constitutional right to interstate travel — would probably be less successful, for various reasons.

Practical Difficulties

The statute of limitations is not the only possible deterrent to prosecution of a 20-year-old case. Other issues include whether McGowan intends to file a complaint, whether Weinstein’s alleged conduct meets the legal definitions of rape or sexual assault and whether the inherent evidentiary and public relations difficulties in prosecuting a 20-year-old case will deter McGowan or authorities from proceeding.

“The passage of time in this case will make it more difficult to bring a case and prove rape beyond a reasonable doubt,” said Baughman. “It is more difficult as time passes to assess credibility of witnesses and memory and find corroborating evidence. [But] a 20-year-old rape is as deserving of criminal punishment as a current rape.”

Levenson, too, highlighted the various practical difficulties in bringing a case and stressed that she had no judgment on Weinstein’s guilt or innocence.

Other Places, Other Possible Cases

What about the statutes of limitations for London, New York or California allegations? Several of the U.K. allegations are recent, but British authorities would have to seek extradition if they decide to prosecute, a potentially messy process.

Meanwhile, New York and California have absentee tolling, but they only stop the clock for a limited time, not indefinitely the way Utah law does. Both states have eliminated the statute of limitations, but that can’t apply retroactively to expired cases, so prosecutors in those states will have to analyze the date of the alleged offense and the statute of limitations, much as we have done here for Utah, but because Weinstein spent most of his time in New York and/or California, the clock, if any, would have kept running most of the time. Thus, prosecutors will have to grapple with the additional complexity of tracking Weinstein’s movements in and out of the state — and it might be too late to prosecute in one or both of those jurisdictions.

Park City, a small skiing village, may be the only place, at least in the U.S., where Weinstein could face possible prosecution.