Everything you need to know about the criminal statute of limitations against Diddy and Jay-Z

Jay-Z has argued he should be criminally charged if the abuse allegations against him are true. Is it even an option? Doubtful.

In response to being accused of drugging and raping a 13-year-old girl with Diddy and an unnamed female celebrity who watched, Jay-Z stated:

“These allegations are so heinous in nature that I implore you to file a criminal complaint, not a civil one!! Whomever would commit such a crime against a minor should be locked away, would you not agree?”

This is another PR strategy by Jay-Z to minimize the accusations against him, and it’s a pretty transparent one. The message here is clear: If the accusations had merit, Jay-Z would be criminally charged. Since he is not charged, therefore, the charges have no merit; and the longer he goes without being charged, the stronger his position that he did nothing wrong.

The reality, though, is that it’s very unlikely Jay-Z can be criminally charged because of the criminal statute of limitations. If he can’t be charged, then it’s not a reflection on the merits of the case that he hasn’t been.

Notice how I said “unlikely”? That’s because, contrary to what you might think, there can be quite a bit of nuance to the question of whether a criminal prosecution is possible. It’s actually a very easy question to get very wrong. So let’s walk through how to figure out if Jay-Z is in criminal jeopardy from these allegations.

Do not pass Go if Ex Post Facto.

Statutes of limitation can, and do, change. At the time of the alleged party in 2000, the statute of limitations for all but class A felonies was five years.

This included all sex offenses as even the most serious sex offense, first degree rape, is only a class B felony. It wasn’t until 2006 that the New York legislature passed S. 8441 that eliminated the statute of limitations for the most serious sex offenses.

If you Google New York’s statute of limitation for sex crimes, you’ll get the version that is in effect today, where broadly speaking, crimes in the first degree have no statute of limitations, crimes in the second degree have a 20-year statute of limitations, and crimes in the third degree have a 10-year statute of limitations.

So, the first possible mistake is not knowing which of these versions applies. This is where the Ex Post Facto clause of the Constitution comes in.

Article 1, sections 9 clause 3 and 10 clause 1 prohibit Congress and the States, respectively, from adopting ex post facto laws. Ex post facto laws are laws that criminalize behavior or increase its punishment after the fact. They were discussed in the Federalist Papers as a favorite tool of tyrants and the prohibition was explicitly recognized as a limit on the power of the government to decide, after the fact and without prior notice, that someone should be jailed.

Because a government can’t adopt a law imposing criminal liability for past acts where such liability did not previously exist, this means that, generally speaking, criminal statutes of limitation cannot be changed retroactively once the clock has already run out. If it’s still possible to be prosecuted, extending the time period to do so doesn’t create an ex post facto problem because the accused has notice of potential liability at the time of the extension and can take protective action against it. As stated by the Second Circuit in Falter v. U.S.:

But when the statute of limitations has already run out on a criminal charge, you can’t revive it by extending the statute. The U.S. Supreme Court issued a decisive ruling on this point in Stogner v. California:

A really important distinction to be aware of is that the ex post facto clause does not apply to *civil* claims, only criminal ones. This is why it’s not a problem to change the law to allow people to sue for old injuries - including the New York City Victims of Gender-Motivated Violence Protection Act that authorizes the claims at issue in many of the Diddy cases. Only when we’re talking about putting people in jail do we have to worry about constitutional restrictions on retroactivity.

So what does all of this mean here? Well, in 2000, when the alleged acts occurred, the pre-S. 8441 law was in effect that established a 5-year statute of limitations:

However, the statute also included a tolling provision for child victims that kept the 5-year period from starting to run until the accuser turned 18:

Because, according to the civil complaint, the accuser was 13 in 2000 when the party took place, the 5-year statute of limitations did not start to run until 2005 when she turned 18, meaning it would have expired in 2010. However, S. 8441 was passed in 2006, before the statute of limitations expired. Under Falter, this means that the change eliminating the statute of limitations for first degree sex crimes can be applied to these allegations.

Bottom line: Because changes in statutes of limitation can’t be applied retroactively under the ex post facto clause, the only crimes that have not expired are first-degree sex crimes. So, to know if Jay-Z can be criminally charged for the allegations, we next have to know if the allegations can establish a first-degree sex crime.

While the accusations, if true, would easily establish second degree rape, proving first degree rape is much more of a stretch.

Of the four types of sex crimes with no statute of limitations - rape, criminal sexual act, aggravated sexual abuse, and course of sexual conduct against a child - the first three are elevated to the first degree in one of four ways: (1) Because forcible compulsion is used to commit the crime; (2) because the victim is physically helpless and cannot consent; (3) because the victim is less than 11, or (4) because the victim is less than 13 and the perpetrator is 18 or older.

We know from the complaint that Jay-Z’s accuser was 13 years old at the time of the party, so the last two possibilities can’t apply here. That means the only possible way a criminal case could go forward is if the allegations in her civil complaint establish forcible compulsion or physical helplessness. So, let’s look at her allegations:

Evidence of forcible compulsion is limited - only the allegation that Jay-Z “held her down” suggests it as a possibility. In People v. Helm, the Court of Appeals considered multiple cases in which forcible compulsion was established to evaluate the sufficiency of an allegation of forcible touching:

The allegation of being held down, without more, falls quite a bit short of the allegations supporting previous findings of forcible compulsion in the case law. Indeed, the gist of the complaint seems to be not that the accuser was physically forced, but rather was drugged into compliance. Because the evidence of force is marginal, it’s highly unlikely that a prosecutor would try to pursue a first-degree rape charge on the forcible compulsion theory.

What about being physically helpless? New York Penal Law § 130.00(7) defines physical helplessness as being unconscious or, for any other reason, physically unable to communicate unwillingness. Multiple cases support the theory that severe intoxication can result in physical helplessness:

Some of these cases, particularly People v. Cirina involving a 13-year-old child, make a strong case that drugging someone can render them physically helpless. The problem here, though, is that the accuser’s own allegations suggest she was physically capable of resisting despite being drugged and in fact did so at the time that she escaped the room.

Because both of these elements are so marginal, it’s very unlikely that either a grand jury could be convinced to indict Jay-Z for first-degree rape on this evidence or that, even if it did, a judge would consider the allegations sufficient to proceed on the charge. To the contrary, the evidence is a much better fit for second-degree rape, which can be established by proving either that the victim was under 15 or that the victim was unable to consent due to mental incapacity. Being mentally incapacitated means that “a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent.” This definition seems pretty squarely on point with what Jane Doe is alleging happened at the party in 2000.

But, under the law in effect at the time, second-degree rape expired in 2010, 5 years after the accuser turned 18. S. 8441 did not change the statute of limitations for second-degree rape before the charge expired. Under the ex post facto clause, once that charge expired, it can’t be revived by later changes to the statute of limitations.

Bottom line: As the allegations have been presented in the complaint, they don’t establish a crime that can still be charged under the statute of limitations.

While it’s not absolutely impossible to prove first-degree rape under the forcible compulsion or physical helplessness prongs, that charge would be stretching the allegations far beyond their natural fit at second-degree rape. Now, it is also important to remember that new evidence can emerge that changes what can be charged. As an example, hypothetically, Celebrity B - the unidentified female celebrity - could become a witness with an independent recollection of what happened at the party. Celebrity B’s account could provide additional proof of forcible compulsion or the accuser’s physical helplessness that would elevate the charge to first-degree rape.

This is why the intersection between the criminal case against Diddy and the civil allegations is so significant. The risk of being criminally charged as a co-conspirator or accomplice creates “prisoner’s dilemma” incentives for individuals around the perimeter of Diddy’s enterprises to provide information to the federal investigators in exchange for leniency towards themselves. Once known, these individuals then become potential witnesses in the civil cases. Likewise, as the civil accusers come forward to file publicly-available complaints, they become potential witnesses in the criminal investigation.

So, as long as the criminal case against Diddy is untried and the federal investigation continues, the legal landscape remains unpredictable. Given that, Jay-Z is currently on pretty safe ground as far as facing criminal liability for this accusation, so his “I dare you” message is a bluff he can be fairly confident won’t be called today. But the odds can shift rapidly as incentives change and leads are developed, and Jay-Z being ahead at the flop is no guarantee that evidence necessary to charge him criminally won’t come up at the turn. A poker player can read Jay-Z’s aggressive play as capitalizing on the strength of his current position to try to push his opponents out of the hand early, before more cards are dealt that can change the odds. In part, he’s being so aggressive because he doesn’t know all the cards Tony Buzbee and the federal investigators are holding, so he doesn’t know the odds that his currently strong position is going to hold up.

That said, as things stand today, because Jay-Z almost certainly can’t be criminally charged, the “I dare you” bluff is low risk. At the same time, it’s high reward, because the average layperson isn’t going to know whether criminal charges can be filed or not, so many are likely to believe they can be. Frankly, lots of lawyers will probably get this one wrong too, because they won’t know that the current statute of limitations isn’t what applies - the ex post facto doctrine is pretty niche to criminal practitioners. As Jay-Z’s statement continues to be discussed, there will be a lot of bad information and incorrect claims about the criminal statute of limitations; but, having made it this far, you now know what you need to know to evaluate assertions about whether or not Jay-Z can be criminally charged, and what, if anything, that allows you to infer about the civil accusations he faces.