Why it might be difficult to convict Andrew Cuomo of forced touching

The charge of forcible touching is in itself news, created in response to the commotion that erupted following the Puerto Rican Day parade of 2000. One scorching Saturday afternoon after the parade, dozens of women were attacked by mobs of men in Central Park, who groped, stole and sprayed them with water. The resulting outcry prompted lawmakers to step up penalties for sex crimes.

At the time, incidents of trial and error were dealt with using a sexual abuse law that qualified perpetrators with a maximum prison term of 90 days. Under the new forced touching provision, defendants were entitled to a jury trial and could face a sentence of up to one year in prison.

Even so, as a misdemeanor, forced touching is on the lighter end of the list of sex crime charges and requires prosecutors to pass a relatively high bar. To get a conviction under the law, Mr. Soares would have to prove that Mr. Cuomo touched Ms. Commisso without her consent for the purposes of his own sexual satisfaction or to degrade her.

Legal experts have said that in arguing such a case, a prosecutor would seek to show that the complaining witness is credible, consistent and has no ulterior motives. Witness testimony is considered evidence in court – but juries sometimes struggle to apply that standard in sex crimes cases, lawyers said, applying a higher level of skepticism than typically seen in criminal matters.

One way to overcome this skepticism, prosecutors said, is to testify against a mother, sister or colleague whom an assault victim might have confided in immediately after the incident, to show the jury that they have told the same story over and over.

Ms. Commisso made no immediate disclosure; Mr Soares will likely seek to explain why, said Jane Manning, former sex crimes prosecutor and current director of the Women’s Equal Justice Project.

“We know that a delayed report is often the norm, not the exception,” Ms. Manning said. “To assess credibility, the most useful question is not ‘How fast did she signal?’ but “What were the circumstances surrounding his decision to report, each time this happened?”


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