As Andrew Cuomo fights for his legal life, his political troubles cannot be ignored.
On Tuesday, New York Attorney General Cuomo announced the results of the independent investigation on which Letitia James had requested, concluding that the governor'sexually harassed a number of State employees through sexually suggestive touching and unwelcome and unwanted comments part of a pattern of behavior which extended to his interactions with other individuals outside of State government. The highly respected private attorneys hired by James documented their findings of sexual harassment of 11 women whose stories they found to be credible They also described a culture of intimidation in the governor's office.
Following the announcement by James, Cuomo remained defiant as he faced potentially grave legal consequences. The report merited a criminal referral to the district attorney for Albany County. One incident, in which an executive assistant said that Cuomo groped her breast in November could amount to a misdemeanor crime of sexual assault, punishable by up to a year in prison, although it faces the often uphill battle in criminal cases of workplace sexual assault of proving guilt beyond a reasonable doubt.
Perhaps the greater risk for Cuomo are the findings of civil statutes violations, properly viewed as civil rights violations. The investigators concluded that Cuomo violated state and federal laws prohibiting sexual harassment in the workplace by creating a hostile work environment, a finding which exposes him and the state to potential liability for money damages. The work of the Attorney General's Office is done, but the women who were the targets of Cuomo's abuse may bring their own lawsuits. And in civil cases, the burden of proof is the less stringent preponderance of the evidence standard.
Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex in the workplace. Courts have interpreted this statute to include gender-based harassment. The New York State Human Rights Law - includes similar provisions. Courts consider not only acts tied to gender, but also acts which are facially neutral if the harasser engaged in multiple acts of harassment, some tied to gender and some not. So if a supervisor makes sexually suggestive comments to an employee and then demands that she repeatedly sing 'Danny Boy' for him, as the report says Cuomo did to one of his aides, that conduct may be considered part of the full picture of a hostile work environment.
Hours after James revealed the results of her team's five-month investigation, Cuomo released a recorded statement in which he denied any 'inappropriate' touching or sexual advances. His politics may work in the courtroom, but is unlikely to succeed in politics. He used a defense lawyer's favorite trick of focusing on the lesser sexual claims — more shocking hugs and kisses — to deflect attention from the less striking allegations of sexual contact as if that is what the fuss is all about. Cuomo showed that he learned from his mother and father that kisses convey warmth, explaining that he hugs and kisses 'convey warmth. He took photos of himself embracing 'all kinds of people. However, it is not just hugs and kisses that the women are complaining about, but groping, touching of buttocks, running his fingers down their spine, stomach or chest and making sexually suggestive comments. Instead of feeling warmth, the women reported feeling'shocked, 'humiliated', 'deflated' and like some little doll for Governor of New York. Cuomo's analogy to more serious hugs ignores the family-friendly conduct. A court won't.
Cuomo's defense is also to argue that other public officials hug and kiss, too, even sharing photos of leaders such as President Joe Biden and Vice President Kamala Harris hugging others. This defense falls also short. Try telling a police officer that you have stopped over that he could overlook your speeding because everyone else is doing it, right? The photos were also significantly negative. None of these officials had their hands on someone's breast or buttocks or rubbing their fingers down someone’s back or across their chest.
Federal and state law also prohibit retaliation against an employee for reporting sexual harassment. The report concluded that after one former employee, Lindsay Boylan, transmitted confidential files about her to reporters in an effort to undermine her credibility or what she referred to as their 'destroy Lindsay phase". The report documents the participation of a number of staffers, male and female, in this effort. Cuomo attacked the investigators for criticizing the work of strong female supervisors, arguing that they were using a double standard that condemns public women. What did the investigators'find with this finding are somewhat ironic, considering that the finding was itself based on efforts to discredit Boylan. This defense amounts to saying, 'I'm not sexist — you're not sexist! Cuomo blamed the findings on people who are using this moment for politics.
The failure of attack one's accusers is not a valid legal strategy. If you rob a bank, it doesn't matter that the teller didn't like you. Instead, a case is judged on the strength of evidence. When 11 different people are telling similar stories, they tend to contradict each other.