9 January 2022: Why Did County Prosecutors Drop Cuomo Sexual Harassment Cases?

Complex factors involved in dropped cases against Cuomo

This report provide an explanation of the legal considerations that applied in two of three New York counties where charges related to Andrew M. Cuomo's sexual harassment of several women have been dropped in recent weeks.

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 proven. 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 technical considerations described in the first three paragraphs would appear to have played a significant role in the decisions to drop cases made by prosecutors in Westchester County and in Nassau County.

But few, if any, of these considerations would appear to apply in Albany County where Brittany Commisso's allegations ticked enough of the boxes that would support prosecution. The article cites an explanation provided by attorney Gloria Allred that may provide more insight into Albany County District Attorney David Soares choice to drop that case:

"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."

David Soares' tenure as Albany County's DA is defined by the absence of cases involving wrongdoing by the politically connected in New York's state capital that were successfully prosecuted by state and federal prosecutors.