Just because former Gov. Andrew Cuomo keeps escaping criminal prosecution for touching women doesn’t mean he didn’t do it.
It doesn’t mean he didn’t do anything wrong.
It doesn’t mean that what he was accused of was allowable.
It doesn’t mean that what he was accused of wasn’t sexual harassment.
It doesn’t mean the women who brought the allegations were overly sensitive or were out to get something from it, or that their complaints were part of a political conspiracy to bring the governor down.
Multiple women made similar allegations, several of which were contained in a report issued by state Attorney General Letitia James in August that led to Cuomo’s resignation later in the month.
The attorney general’s 165-page report concluded that the governor sexually harassed a number of state employees through unwelcome and unwanted touching, as well as by making numerous offensive and sexually suggestive comments.
Lacking the legal authority to prosecute the cases herself, that task was left to county prosecutors.
On Friday, an Albany city judge — at the request of Albany County District Attorney David Soares — dismissed a misdemeanor charge against Cuomo over an incident in which an aide claimed Cuomo forcibly placed his hand under her blouse and touched her breast at the Executive Mansion in 2020.
When it came time to move the case against Cuomo forward, Soares found the “complainant in this case cooperative and credible,” and even admitted there was evidence. But he decided he wouldn’t pursue the case because he couldn’t prove it beyond a “reasonable doubt.”
Last month, two prosecutors downstate determined essentially the same thing over similar allegations against Cuomo.
In Westchester County, the district attorney looked into allegations from two women, one of whom was a female state trooper who said Cuomo asked her for a kiss, which she said she allowed for fear of the ramifications of rejecting the governor. The other woman claimed Cuomo grabbed her arm, pulled her toward him and kissed her without her permission.
In those cases, the DA said that “although the allegations and witnesses were credible, and the conduct concerning, we cannot pursue criminal charges.”
And in a case on Long Island, for which criminal charges also weren’t brought, a woman claimed Cuomo ran the palm of his left hand across her abdomen to her belly button and then to her right hip. In that instance, the DA found the case “credible, deeply troubling, but not criminal under New York law.”
In none of these cases did prosecutors say the allegations were fabricated or that Cuomo was innocent.
Cuomo’s spokesman on Friday even gave one of those nondenial denials to the allegations and hinted at legal retribution.
“Nassau and Westchester district attorneys found that even if the allegations were credible they did not violate the law. Kissing someone on the cheek, patting someone’s stomach as you walk by, taking a photograph with an employee or a wedding guest is not illegal — criminally or civilly. Plaintiff lawyers overplayed their hand, and we will not pay one penny in attempts at civil extortion.”
Does that sound like a statement from someone who didn’t do anything wrong? (We wonder if Cuomo would feel such gestures were so innocent if one of his daughters’ creepy, middle-aged bosses did the same things to them.)
Given all that — the attorney general’s report alleging multiple instances, the prosecutors’ own admission that the witnesses were credible and that the cases had at least some merit — didn’t at least one district attorney have an obligation to these women to present their cases to a grand jury and let the people decide if the evidence warranted prosecution?
Prosecutors often present themselves to voters as tough on crime. So why wouldn’t they pursue these particular cases?
One could draw from their decisions that the DAs didn’t want to mess up their win-loss records, since they’ll have to defend that record when they seek re-election.
Numerous reports have concluded that sexual assault and sexual harassment cases are rarely prosecuted, and even more rarely lead to convictions, with some studies finding that less than 1% of assaults lead to convictions. That’s due in part to juries being reluctant to prosecute all but the most obvious sexual assault cases and their unwillingness to fully believe victims. That perception comes despite the belief among academic researchers that false reports are exceedingly rare, perhaps 2% to 10%.
The prosecutors’ reluctance also could signal their fear of retribution from Cuomo himself. Despite the fact that he no longer holds public office, the ex-governor still has the potential to wield significant political clout behind the scenes, boasting a $17 million campaign war chest and plenty of powerful supporters who could undermine an ambitious prosecutor’s career.
Prosecutors who are afraid of jeopardizing their career need to find another one.
To the other point, some could legitimately argue that prosecutors shouldn’t be wasting the court’s time with weak cases just to demonstrate that they took the victims seriously. If they say they couldn’t make a case stick, shouldn’t we trust their professional judgment?
One could also say that if it isn’t actually a crime for a man to force a woman to kiss them against their will or if it’s not a crime to reach under a woman’s blouse and grab their breast, then maybe lawmakers need to make it one. Such unwanted and unwelcome behavior is a violation of one’s personal privacy and should not be tolerated in or outside the workplace by law enforcement.
The danger from all this is that these highly publicized but distinctly individual decisions will discourage legitimate victims from coming forward.
About 70% of women suffer sexual harassment on the job, and one in every four women have been sexually harassed.
If women use these decisions to return to keeping their incidents to themselves, or if these nonprosecutions add to the fear of bad publicity and retribution for bringing allegations to light, then sexual predators will continue to get away with this aberrant behavior.
State leaders need to make it easier for women to report sexual assault and harassment. They need to crack down on those who perpetuate hostile workplaces. And they need to reduce the stigma of victimhood and they need to address the issues that discourage women from reporting harassment, such as shame and fear of retribution.
To make it worth the effort for victims to come forward, prosecutors also need to start stepping up. They need to start taking more chances with tough cases, even if they might not win. They need to be more aggressive in seeking to punish perpetrators — even the politically powerful — when credible witnesses come forward with credible allegations. Being “concerned” isn’t good enough.
To not take such action would be a disservice to sexual assault victims and a disservice to justice.