What Could Prosecutors Do to Cuomo?

Gulp? Photo: Chip Somodevilla/Getty Images

Five district attorneys across New York have indicated that their offices are investigating sexual-harassment allegations against Governor Andrew Cuomo after a report from the state’s attorney general that determined he has broken federal and state laws. Eleven women in the report describe a pattern of unwanted touching and inappropriate remarks.

With some allegations against Cuomo, potential charges could include forcible touching and sexual abuse in the third degree, both misdemeanors. The maximum penalty for forcible touching is one year in jail, while the max for sexual abuse in the third degree is three months behind bars; however, the punishment for a first-time offender would likely be something such as probation. Cuomo has insisted the accusations are false, claiming in a speech on Tuesday that he “never touched anyone inappropriately or made inappropriate sexual advances.”

Manhattan district attorney Cyrus Vance Jr.’s office is among the five prosecutors who contacted James’s office requesting “investigative materials.” To get a better understanding of what prosecutors may consider in deciding whether to make a case against Cuomo, Intelligencer spoke with Rebecca Roiphe, a former prosecutor in the Manhattan DA’s office who is now a professor at New York University Law School.

Five DAs have asked Letitia James to give them information about the investigation. What kind of information will they be looking for in the public report or the materials they requested? 

A good place to start: What differentiates sexual harassment as a civil action from a crime related to sexual abuse? There are a couple of things. One is the intent of the person involved. The second is forcible touching. And the third is the level of proof that’s needed. I think that is probably what they’re looking for, and I would assume they would start with the acts. What they would look for is incidents in which he seems to be forcing himself on somebody. The obvious example is the one that’s already being looked into, in Albany, of the woman who said he touched her breasts. The second one that I think jumps out at me would be the trooper, who said he touched her stomach. Those two incidents, at least potentially, could have criminal liability because instead of just acting in an intimidating way, he seems to be forcing himself on somebody.

In order to make a case, I think you would need the cooperation of the accusers; they’re not going to build an abuse case without the victim involved. So they’re going to want to have somebody who’s willing to cooperate and go forward, and they’re also going to be looking for corroboration because, with the burden of proof, you’re really going to need to be able to buttress the story the individual told. These sorts of incidents, the ones at least that I saw described in the report, are ones that can be spun different ways, and if the burden of proof is “beyond a reasonable doubt,” how would you as a prosecutor build that case without something else besides this victim’s word?

What kinds of charges could Cuomo potentially face? 

In New York, there’s a law against forcible touching, which essentially says it is a misdemeanor to forcibly touch somebody’s sexual parts with the intent to either degrade them or gratify yourself sexually. There’s also sexual abuse in the third degree, which is quite similar in terms of its wording as forcible touching. So those would be the ones I would be thinking of if I were a prosecutor as I was looking at this evidence. And look, if you’re looking through evidence, you’re always open to finding other things, to having complainants come forward or facts emerge that you don’t have to start with. But if I was looking at these incidents at the outset, those would be the crimes I would be thinking of trying to build a case around because it suits that. It doesn’t seem to fit anything else.

What kind of penalty does one face if found guilty of misdemeanors like this?

Probation or something like that. It’s possible that it could be more than that, but likely somebody in his position — where this is a first-time offense — would not face jail time.

What might a prosecutor see in either the public report or some additional information they get that would pique their interest? 

I think what they’re looking for is any kind of contemporaneous corroboration. It’s clear that these women experienced this at the time as something alarming, disturbing; they were texting their friends, telling their friends right then and right afterward that this is what’s going on.

Contemporaneous corroboration is not necessary, but it’s extremely helpful, especially if you’re going to have what his defense would be, which would be “I never intended it this way. I didn’t do it, or if I did do it, it was meant as like huggy and kissy and certainly not meant to degrade anybody or gratify any sexual desire or anything like that.” If he’s going to claim that, what you want is something in real time supporting her version of events — anything at the time where she reported feeling upset or disturbed, anything he might have said that she reported to somebody else or wrote down, something like that. These cases are hard to bring, and you’re looking for anything that would make it more than a “he said, she said” situation.

If you were in the DA’s office and this came across your desk, would there be any one thing that would tell you, “I’m going to go ahead with this” or “I’m not going to go ahead with this?” Or is it kind of the cumulative stuff that you discussed?  

It depends because prosecutors have a different degree of tolerance for risk in these sorts of situations. Personally, I think this whole case is better taken civilly. I think what happened here is really a series of awful, disgusting, abusive acts that, to me, look like civil wrongs. That’s why, for me, I don’t think any of these incidents, while horrible and disgusting, are really, as described, worth the criminal process. But if I were looking at this — and especially with an eye toward wanting to bring charges against a powerful person for having done this — I would be looking particularly for (1) whether or not the victims are fully willing to cooperate and wanting to go through this process, which is long and arduous, and (2) how credible they are.

You would want to talk to them. How credible is this person? Is there anything that might [be] an ulterior motive for them bringing this case? Is there any way he could tar them in such a way to undermine their account? And finally, that contemporaneous evidence. It’s probably that third piece that I would be paying a lot of attention to. I personally would not bring these cases just on the woman’s account — not because I didn’t believe her but because of the burden of proof. I would rather want to have a stronger case than that in order to be able to prove both that it happened and what his intent was.

You had said that the defense strategy, if this were to go to trial, would be to prove that his intent was not for something like sexual gratification. How would they do that?

I know people have been making fun of his pictures of people hugging other people, and politicians hugging other politicians, that were attached to his response memo. But that’s not a bad defense strategy as it goes. To say, essentially, “Look, here’s a guy who comes from a different world and a different culture and is of an age where these kinds of things were acceptable, teasing, affectionate.” If you follow the media, people are mocking that, saying, “How could he say that? That’s so ridiculous.” But if you’re just an average person, I don’t know that it’s so absurd that possibly something could be misinterpreted and at least intended — let’s just say intended in a different kind of way, intended in a friendly, sort of maybe flirtatious but certainly not degrading or harmful way.

He could take the stand, which would be, I suppose, a risky move, or you could have some people come testify about how he hugs them all and how it’s totally friendly and lovely when he does it, and he’s just the kind of hugging sort of type, very physical, and his hand might have slipped, something like that — which is to say, this is not what he meant. You could even do it through cross-examination, right? Has anybody ever touched your shoulder, like your uncle? What you’re just doing is sowing doubt into the minds of everyone that this was intended the way it was taken. That might not be a terrible strategy because it’s better than saying, “Oh, these women are so confused. They don’t understand. They weren’t hurt. This never happened.”

You said this might be the type of case that is better pursued in civil court. Could you expand upon that a little bit? 

What’s described in that report is a pattern and practice of abusive behavior in the workplace. To me, that’s a civil cause of action. A civil cause of action will allow much more evidence to come in. Any one of these instances taken alone does not have the power that all of them together have. As we’ve been discussing, maybe you’d be able to get pieces of evidence in here or there in the criminal case, but it’s not quite the same as you would when you’re trying to describe a hostile work environment and what actually happened here. There may have been instances of, you know, third-degree sexual abuse or forcible touching, but the whole story is a story of abuse of power and that’s a civil cause of action. It seems to me it’s more suited to what actually happened here. I know that there’s power in the criminal law and people’s thirst for that kind of accountability, but to me, the really egregious acts here are all together describing something hideous, rather than any one of these on its own.

Anything else? 

To say that the criminal-justice system or the criminal laws are not the way to go here is not to minimize the pain of these women and the seriousness of the incidents involved. It’s just a comment on the way that our criminal-justice system works, and it seems ill-suited for the situation — not because these aren’t serious incidents but rather because of the protections we have in place for the accused and how difficult it is to take advantage of our criminal laws and hold somebody accountable in situations like this. By suggesting that I think this is a case that’s better brought civilly, I am not in any way minimizing what these women went through but rather making a comment on the nature of criminal justice in America, which is extremely protective of the accused. Whatever one might think of that, that is the way it is.

This interview has been edited for length and clarity.

What Could Prosecutors Do to Cuomo?