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Complex factors involved in dropped cases against Cuomo

Gov. Andrew M. Cuomo publicly responds to the

Gov. Andrew M. Cuomo publicly responds to the sexual harassment report from state Attorney General Letitia James on Aug. 3, 2021. Credit: Office of the Governor

ALBANY — Three prosecutors who investigated sexual harassment allegations against former Gov. Andrew M. Cuomo said the testimony by the women accusers was "credible." Two said their probes left them deeply troubled and one said there is evidence the alleged conduct "did occur."

Yet district attorneys in Nassau, Westchester and Albany counties — like Cuomo, Democrats — declined to prosecute the cases in the past four weeks.

That outraged victims and their advocates, who say the decisions reflect a broken system that can benefit the powerful. They say it sends a chilling message to survivors of sexual harassment that achieving a criminal conviction against a harasser — and especially a high-profile subject — might be impossible.

"This is a pattern," said Erica Vladimer, co-founder of the Sexual Harassment Group — former state workers who experienced sexual harassment in state government. "The MeToo movement certainly shed a spotlight on the systemic abuse and harassment. We still have a lot of work to do to create systemic change … and part of that is having people who are willing to use their power."

But according to prosecutors, defense attorneys and law professors, the district attorneys faced thorny obstacles from the start in bringing a case against the three-term governor, including the lack of a criminal law specifically against sexual harassment, lack of forensic evidence, the high-caliber lawyers Cuomo could afford to hire and the need to prove a case "beyond a reasonable doubt."

"This is an extremely high burden of proof," said Abigail C. Saguy, chair of sociology at the University of California, Los Angeles, who has researched sexual harassment in the United States and France. "This is one of the drawbacks to addressing sexual harassment through the criminal justice system. It will always be harder to prove the harassment took place when faced with a beyond-a-reasonable doubt standard."

The one criminal charge of which Cuomo was accused — misdemeanor forcible touching — required several elements to be pursued, including to be proved beyond a reasonable doubt. That charge was formally dropped Friday.

"Oftentimes when we have crimes which really disgust us, we are upset the prosecution doesn’t go forward or there is an acquittal," said Vincent Bonventre, a professor at Albany Law School. "And oftentimes the cause is the standard of ‘beyond a reasonable doubt.’ "

"If you don’t have an eyewitness, you don’t have forensic evidence, you don’t have incriminating testimony from the governor, it’s very, very hard to prove the case and it’s very hard to be certain it happened," he said

Bonventre, defense attorneys and prosecutors agree on this: The most successful recourse for victims of sexual harassment is a civil lawsuit. Such a lawsuit requires a lower burden proof — a preponderance of evidence that some lawyers say can be as little as 51%. But civil lawsuits require hiring private attorneys and the alleged harasser often must have enough assets to make a civil case worthwhile to an accuser and lawyers.

Cuomo was accused in Albany County in a criminal complaint brought by Albany County Sheriff Craig Apple. Brittany Commisso, the woman who accused Cuomo, said he groped her in 2020 while they worked alone in the second floor of the Executive Mansion.

In Westchester, Cuomo was accused by two women: One said he grabbed her arm and kissed her cheek without permission in 2018 and another said he kissed her on the cheek in 2019.

In Nassau County, a woman state trooper who was on Cuomo’s security detail said he ran his finger along her stomach, belly button and hip in 2019 at a press event at Belmont Park.

The Manhattan and Oswego district attorneys and the U.S. Department of Justice had also shown interest in investigating after the sexual harassment cases were released in an August report by state Attorney General Letitia James. But those prosecutors haven’t commented since.

"Three district attorneys have now reviewed James' report and evidence and have proven that what we said all along was correct — the law was not broken and not a single case has been brought," said Rich Azzopardi, Cuomo spokesman.

Cuomo resigned in August as the Assembly pursued impeachment proceedings over sexual harassment and other allegations against him.

The district attorneys in Albany and Nassau declined requests for comment, but the Westchester prosecutor defended her decision.

"As prosecutors, we strive to achieve justice and do what is right," said Westchester County District Attorney Miriam Rocah. "In making decisions about whether or not to charge a case, we consider the facts and the law, not the status, position or wealth of an individual."

There is no crime of sexual harassment in New York. Instead, the State Legislature has created civil laws concerning the denial of a person’s rights that can be used in a civil lawsuit. Efforts to create a crime of sexual harassment have proved difficult in part because of the breadth of actions that would be included under the misconduct, legislators said.

As a result, prosecutors can turn to other criminal statutes to see if they apply to the facts of the case that can be proved. These other charges include forcible touching and sexual abuse in the third degree. But such charges require prosecutors to prove multiple elements, such as what was in the mind of the accused. The harasser would have to intend to abuse or degrade the victim or do it for sexual gratification. It’s not enough that the victim feels degraded or abused, according to prosecutors.

In addition, touching must be by "forcible compulsion" on sexual or other intimate parts, under the law. But that doesn’t include kisses on the top of the head, the forehead, the cheek and many other areas.

Cuomo had said kisses to the cheek and hugs were part of his "way" of showing support to his employees and constituents. He has denied all accusations of sexual harassment.

Further under current law, if the victim shows any sign of agreeing to the contact or accepting it, the case could hindered, lawyers said.

The law’s provisions are based on the U.S. and state constitutions, which provide substantial rights to the accused in a criminal case.

"And there should be," said J. Anthony Jordan, the Washington County prosecutor, president of the District Attorneys Association of the State of New York and a former Republican state assemblyman. "I get why, from the outside looking in, that people want a person to be held accountable for something. But that’s different than being able to say ethically, ‘I have proof beyond a reasonable doubt.’ "

"An arrest is based on ‘probable cause,’ " Jordan said. "It’s a long walk to prove ‘beyond a reasonable doubt.’ "

Jordan rejected claims that prosecutors are dissuaded from prosecuting a case if the potential target is powerful or wealthy enough to hire a top firm that could raise reasonable doubts while sapping public funds.

"That’s never a factor we would be concerned with," Jordan said. "I get why people feel that is because of who he is, but I don’t think that entered into the case; nor does it mean he didn’t do it."

Those assurances and the legal arguments, however, are of little comfort to victims who have to weigh whether to risk their jobs, careers and privacy to stop a harasser, said advocates and survivors like Vladimer.

"In my head I didn’t think of moving forward with criminal action because I know how the system works," Vladimer said in an interview with Newsday. "I knew the criminal justice system wouldn’t be able to provide justice."

She had said former Sen. Jeffrey Klein (D-Bronx), the head of the once-influential Independent Democratic Conference, forcibly kissed her in 2015. It took her three years to report it in 2018.

"You could report it to the Senate personnel office," she said, "but it’s going to be a he-said, she-said. Well, that’s going to carry over into the criminal sphere … and that’s why I chose not to come forward."

Klein said he didn’t do anything inappropriate and wasn’t charged.

Laws, however, can be changed. Legislators have proposed measures prompted by the #MeToo movement’s highlighting of the scope of sexual harassment and the financial and emotional scars a survivor can carry for life.

Sen. Liz Krueger (D-Manhattan), one of the Legislature’s most powerful members, said last week she is interested in tougher laws against inappropriate touching and harassment. Two active bills would create misdemeanors.

Gloria Allred, a lawyer who has been involved in high-profile cases nationwide including allegations against Cuomo, said there is much room to better support sexual harassment survivors in criminal cases especially when accusing powerful figures.

"It’s my opinion that in the high-profile cases ... [prosecutors] often feel they have to prove a case … almost to a virtual certainty, which is not the burden of proof in the law," she told Newsday. "No prosecutor wants to lose a high-profile case and a higher-profile defendant often has the resources to engage a criminal defense team that might fight the allegations to the end, rather than accept a plea."

"But most victims don’t want to go to law enforcement or the police," she said, a sentiment deepened by the cases dropped against Cuomo. "Some of the accusers are feeling let down and feel it sends a message to other accusers … fear is the weapon that keeps women from coming forward."

The statements by prosecutors who chose not to pursue cases against Cuomo:

Albany County District Attorney David Soares on Jan. 4:

“While we found the complainant in this case cooperative and credible, after review of all the available evidence we have concluded that we cannot meet our burden at trial … I, like most New Yorkers, remain deeply troubled by allegations like the ones at issue here.”

Westchester County District Attorney Rocah on Dec. 28:

“Our investigation found credible evidence to conclude that the alleged conduct in both instances described above did occur. However, in both instances, my Office has determined that, although the allegations and witnesses were credible, and the conduct concerning, we cannot pursue criminal charges due to the statutory requirements of the criminal laws of New York.”

Nassau County Acting District Attorney Joyce Smith on Dec. 23:

“Our exhaustive investigation found the allegations credible, deeply troubling, but not criminal under New York law.”

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