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Cuomo violated state and federal laws, report finds, but will he be charged with a crime?

The investigation's findings may pave the way for a criminal probe after Albany's top prosecutor said his office would "welcome any victim" to come forward.
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New York Gov. Andrew Cuomo's political future remains uncertain after a report by the state attorney general's office concluded that he sexually harassed almost a dozen women and broke state and federal laws, especially since the findings could pave the way for a criminal investigation into the accusations.

But legal experts caution that the standard for criminal prosecution is greater than state Attorney General Letitia James' civil investigation, and while her report was backed up by "corroborating evidence and credible witnesses," establishing that Cuomo had committed a crime would require additional scrutiny.

"I don't believe a criminal prosecution can rely on the report. The prosecutor has a burden of proving their case beyond a reasonable doubt," Kevin Mintzer, a New York attorney who has represented women in sexual harassment cases, said. "A prosecutor can't go in and wave the investigators' case and say, 'Case closed.' That's not how it works."

With the release of Tuesday's independent report, which was overseen by former federal prosecutor Joon Kim and employment lawyer Anne Clark, the top prosecutors in Albany, Westchester County and Manhattan said their offices have begun formally requesting investigative materials from James' office.

Albany District Attorney David Soares on Tuesday declined to comment on the status of an ongoing criminal investigation, but said in a statement that he would "welcome any victim" to come forward.

Separately, Westchester County District Attorney Miriam Rocah said in a letter Wednesday to James' office that she is looking for transcripts, notes and reports tied to the harassment and unwanted touching of a New York state trooper who was initially assigned to Cuomo's detail at his Mount Kisco residence.

"I believe it is appropriate for my Office to conduct a further inquiry to determine if any of the reported conduct that is alleged to have occurred in Westchester County is criminal in nature," Rocah wrote.

A spokesperson for Manhattan District Attorney Cy Vance also said Wednesday that his office has requested investigative materials from the state attorney general's probe tied to incidents that occurred in his jurisdiction.

Cuomo, who has served as governor since 2011 and has been eyeing a fourth term, has consistently denied any wrongdoing since allegations began mounting this year. He has suggested that comments he made to his employees — some he thought of as friends — were misinterpreted, and rebuffed calls from across the political spectrum to step down, including from President Joe Biden. In a video statement Tuesday, Cuomo said he was issuing his own report to "now share the truth."

"The facts are much different than has been portrayed," he said. "I never touched anyone inappropriately or made inappropriate sexual advances."

The five-month investigation, however, found he had engaged in acts of sexual harassment and made numerous inappropriate comments to women, subjecting some of them to unwanted touching, kissing and groping. Eleven women are mentioned in the report, some remaining anonymous and some cases not previously made public, including the one involving the state trooper and another involving a utility company employee in Syracuse.

In one of the more explicit interactions cited in the report, an aide said her encounters with Cuomo ramped up over time to "more intimate physical contact, including regular hugs and kisses on the cheek (and at least one kiss on the lips), culminating in incidents" in which the governor grabbed her backside while taking a selfie at the Executive Mansion, and during a hug, reached under her blouse and grabbed her breast.

Cuomo testified during the investigation that the employee was an "affectionate person" who was the "initiator of the hugs," and denied touching her backside or her breast.

The employee told investigators that she "felt she had to tolerate the Governor's physical advances and suggestive comments because she feared the repercussions if she did not. She did not feel she could tell anyone, including her colleagues and her direct supervisors."

In another case, Lindsey Boylan, a deputy secretary for economic development and special adviser to Cuomo from 2015 to 2018, testified that he would kiss her on the cheeks, and on one occasion, on the lips after a meeting in his office, and went "out of his way to touch me on my lower back, arms and legs."

Boylan accused Cuomo of retaliating after she went public with her harassment claims in December by releasing personnel memos to the media indicating she resigned after she was accused of treating her staff "like children" and bullying them.

But the state attorney general's office found Cuomo and his office "actively engaged in an effort to discredit her." Such actions and retaliation against someone who came forward with claims of sexual harassment violates multiple state and federal laws, including Title VII of the Civil Rights Act of 1964 and the executive chamber's own equal employment policies. Sexual harassment is not a crime in New York, and a bid this legislative session to pass a slate of anti-harassment bills failed to advance in Albany.

It's unclear exactly what standard of proof was used in the state's investigation to determine why they believed the women's accusations over Cuomo, but Dan Gilleon, a lawyer in California who has represented clients in sexual harassment cases, said it would not need to have been a legal burden of "beyond a reasonable doubt" applied to secure a criminal conviction.

"I don't think they applied that standard here," Gilleon said, adding they would have used a test of "more likely than not" that the events occurred. "And they believed the women because of their credibility, their motivation ... and the fact that multiple women were saying similar things — that adds credibility to each of the women."

Michelle Madden Dempsey, a former prosecutor in Illinois and a law professor at Villanova University, said sexual harassment in a civil case would involve determining whether the touching was unwanted. But in a criminal case, a jury would also weigh whether it meets an "unconsensual standard" as well. For instance, a person didn’t want to consent to sexual contact, but agreed because they were threatened with physical harm.

"It's worth noting that some jurisdictions, including New York, don't criminalize sexual touching simply because it's unconsensual," Dempsey said in an email. "Instead, the touching must be 'forcible.'"

In New York, "forcible touching" can involve reaching for "the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor's sexual desire." It is a misdemeanor, and the statute of limitations is two years.

Gilleon said he believes criminal charges are possible given how politicized the case is and the expectations that Cuomo face consequences, but prosecutors will have to determine the extent of the groping as well.

"Was there skin-to-skin?" Gilleon said, adding that such physical contact can make the difference between a charge of battery and one of sexual battery.

Marjorie Mesidor, a New York lawyer specializing in employment law and sexual harassment claims, said the length of time that has elapsed in some of these incidents would make criminal charges unlikely.

"The burden of proof for finding that he is guilty of charges like forcible touching is much higher in the criminal context than in the civil context," she said, adding that instead, Cuomo may face lawsuits seeking compensatory damages that could include lost wages, emotional distress and punitive ones "given the multiple victims."

Since the report lays out that New York state is liable for what happened, any lawsuits won't have the challenge of proving culpability, which is typically burdensome, Gilleon said.

Plaintiffs will be "armed with a finding by New York itself based on its own investigation that not only did the governor do it, but that they're vicariously liable for what they did."

"It's not if New York pays money," Gilleon added. "It's how much it pays."