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

New York Governor Andrew Cuomo’s political future remains uncertain after state attorney general’s office report found he sexually harassed nearly a dozen women and broke state laws and federal, especially since the findings could pave the way for a criminal investigation into the charges. .

But legal experts warn that the standard of criminal prosecution is higher than the civil investigation by State Attorney General Letitia James, and although her report is supported by “corroborating evidence and credible witnesses,” establishing that Cuomo had committed a crime would require further investigation.

“I don’t think a criminal prosecution can rely on the report. The prosecutor has the burden of proving his case beyond a reasonable doubt,” said Kevin Mintzer, a New York attorney who has represented lawyers. women in sexual harassment cases. “A prosecutor cannot come in and shake the investigators’ file and say, ‘Case closed’. This is not how it works. “

With the release of the independent report on Tuesday, which was overseen by former federal prosecutor Joon Kim and employment lawyer Anne Clark, the Albany district attorney said his office would begin formally requesting documents. investigation at James’ office.

New York Governor Andrew Cuomo.Shahrzad Elghanayan; Johnny Milano / NBC News; The New York Times via the Redux file

Albany District Attorney David Soares declined to comment on the status of any ongoing criminal investigation, but said in a press release that he “would welcome any victim” to come forward.

Cuomo, who has been governor since 2011 and is considering a fourth term, has consistently denied any wrongdoing since the allegations began to mount this year. He hinted that the comments he made to his employees – some of whom he considered friends – had been misinterpreted and rejected calls from across the political spectrum to resign. In a video statement on Tuesday, he said he was releasing his own report to “now share the truth.”

“The facts are very different from what has been described,” he said. “I have never touched anyone inappropriately or made inappropriate sexual advances.”

The five-month investigation, however, found that 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, with some remaining anonymous and some cases not previously made public, including one involving a state soldier assigned to the governor’s protection detachment and another involving an employee of a security company. utilities in Syracuse.

In one of the more explicit interactions cited in the report, an assistant said her encounters with Cuomo intensified over time to become “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 back while taking a selfie at the Executive Mansion, and during a hug, ran his hand under her blouse and grabbed his chest.

Cuomo said during the investigation that the employee was an “affectionate person” who was “the initiator of the hugs” and denied touching her back or chest.

The employee told investigators that she “felt she had to tolerate physical advances and suggestive comments from the governor because she feared repercussions if she didn’t. She didn’t think she could tell anyone. either, including his colleagues and his direct superiors “.

In another case, Lindsey Boylan, assistant secretary for economic development and special advisor to Cuomo from 2015 to 2018, said he would kiss her on the cheeks and, once, on the lips after a meeting in his office, and went “out of his way to touch my lower back, arms and legs.”

Boylan accused Cuomo of retaliating after going public with her harassment allegations in December by posting staff memos to the media stating that she had resigned after being accused of treating her staff “like children” and intimidate them.

But the state attorney general’s office found that Cuomo and his office “were actively engaged in an effort to discredit her.” Such actions and retaliation against someone who has made allegations of sexual harassment violate several federal and state laws, including Title VII of the Civil Rights Act of 1964 and its own employment equality policies. of the executive room. Sexual harassment is not a crime in New York City, and an offer this legislative session to pass a list of anti-harassment bills has not made any headway in Albany.

It’s unclear what standard of proof was used in the state’s investigation to determine why they believed the women’s charges on Cuomo, but Dan Gilleon, a lawyer in California who has represented clients in cases of sexual harassment, said it should not have been a “beyond a reasonable doubt” legal burden applied to secure a criminal conviction.

“I don’t think they applied that standard here,” Gilleon said, adding that they would have used a “more likely than not” test that the events occurred. “And they believed the women because of their credibility, their motivation… and the fact that several women said similar things – it adds credibility to each of the women.”

Michelle Madden Dempsey, a former Illinois prosecutor and law professor at the University of Villanova, said sexual harassment in a civil case would involve determining whether the touching was undesirable. But in a criminal case, a jury would also assess whether it also meets a “non-consensual standard”. For example, a person did not want to consent to sexual contact, but agreed because they were threatened with physical violence.

“It should be noted that some jurisdictions, including New York City, do not criminalize sexual touching just because it is not consensual,” Dempsey said in an email. “Instead, the contact should be ‘forced’.”

In New York, “forced touching” can involve reaching “the sexual or other private parts of another person for the purpose of degrading or abusing that person, or in order to satisfy the sexual desire of another person. the actor “. It is a misdemeanor and the limitation period is two years.

Gilleon said he believed criminal charges were possible given the politicization of the case and the expectations Cuomo would face the consequences, but prosecutors will also need to determine the extent of the trial and error.

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

Marjorie Mesidor, a New York lawyer specializing in labor law and sexual harassment complaints, said the time that has passed in some of the incidents would make criminal prosecution unlikely.

“The burden of proof to conclude that he is guilty of charges such as forced touching is much higher in the criminal context than in the civil context,” she said, adding that instead , Cuomo could face lawsuits seeking compensatory damages that could include lost wages, emotional distress and punitive “in view of multiple victims.”

Since the report says New York state is responsible for what happened, no prosecution will have the challenge of proving guilt, which is usually onerous, Gilleon said.

The plaintiffs will be “armed with a conclusion from New York itself based on its own investigation that not only did the governor do it, but that they are vicariously responsible for what they did.” .

“It’s not that New York is paying the money,” he added. “That’s how much it pays.”

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