Disgraced Andrew Cuomo dodges charges for his conduct against women. It's the right call.

District attorneys in three New York counties have now announced that they will not prosecute former New York Gov. Andrew Cuomo for potential crimes committed in their jurisdictions. Their decisions to decline charges were right.

Prosecutors need two things to bring a successful case – facts and law. One will not do without the other, no matter how revolting the behavior. The disgraced former governor’s conduct toward women is repulsive, and the district attorneys in Albany, Nassau and Westchester counties have each made it clear that they believe the women or find them credible. But under New York state law, repulsive behavior is not enough to bring a criminal prosecution.

Let's take Westchester County, where two incidents allegedly occurred. In the first case, a woman attending a June 2018 Cuomo news conference alleged he grabbed her by the arm, pulled her toward him and kissed her on the cheek – a kiss to which she never consented. In the second case, in the summer of 2019, Cuomo kissed a female state trooper assigned to his protective detail on her cheek. She felt if she told the governor "no," the detail would be retaliated against. Those are the facts.

Inappropriate isn't necessarily illegal 

There are many appalling facts in the August New York attorney general’s report regarding Cuomo’s behavior toward numerous women, which preceded his resignation from office. Westchester County District Attorney Mimi Rocah's findings – that there was credible evidence to conclude the alleged conduct did occur – are consistent with those in the report. But a DA's authority is limited to prosecuting crimes that were committed in their county. Cuomo might have done reprehensible things to women in other places, such as Manhattan, but these prosecutors have no authority to prosecute him for conduct occurring outside of their jurisdictions. This is the law.

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New York state has three criminal statutes that could apply here. The first makes "forcible touching" a crime. To convict someone of that crime, a prosecutor must prove that Cuomo “forcibly touche(d) the sexual or other intimate parts of another person for the purpose of degrading or abusing (them,) or for the purpose of gratifying (his own) sexual desire.” State law also makes third-degree “sexual abuse” a crime; here, a prosecutor must prove that Cuomo “subject(ed) another person to sexual contact without (their) consent.” The final statute, general assault, requires a physical injury. This is also the law. 

Awful behavior is not the same as unlawful behavior. First, under New York law, a "cheek" does not obviously qualify as a “sexual” or “intimate” body part. Second, even if it did, a prosecutor would need to show Cuomo intended to degrade or abuse the women or to gratify his own sexual desire. With respect to the second potential charge, a kiss on the cheek – no matter how boorish or unwelcome – does not constitute "sexual contact." And while the women here suffered harm, there is no evidence of a physical injury that satisfies the general assault statute.

Finally, as with all elements of all crimes, the burden is on the prosecutor to prove her case beyond a reasonable doubt. This, too, is the law.

The Nassau County case involved allegedly touching a woman’s stomach. Again, while revolting, this conduct does not meet the legal definition of sexual contact.

The harder case is the one out of Albany County, where an aide alleged that Cuomo touched her breast without consent. That contact would qualify as a sexual touching under the statutes. But like the other incidents, this one likely lacked evidence of the level of intent required under the law.

Though it is quite possible that Cuomo intended to degrade or abuse the women, conjecture is not proof. A prosecutor needs to prove things at trial with relevant and admissible evidence. Whatever prosecutors may believe the governor intended is different than what they can prove the governor intended.

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The prosecutors may believe that Cuomo is a predator and belongs in jail. You might think, then, that they ought to charge him, even if the facts and the law suggest that the case would fail. That might be politically expedient, but it would be improper. 

Prosecutors don't make the law

If prosecutors charged a case they knew was flawed, they violate their oaths as prosecuting attorneys and the ethical rules applicable to prosecutors. For instance, a prosecutor must “refrain from prosecuting a charge that (she) knows is not supported by probable cause.” That admonition from the American Bar Association is echoed by the ethical guidelines published by The District Attorneys Association of the State of New York. 

Prosecutors can indict when the facts and the law support a charge, when they believe they can obtain a conviction in court and sustain that conviction on appeal. But that’s it.

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Is the law here deficient? Does it let Cuomo get away with shameful and abusive behavior? He avoided criminal charges in these counties. He may still answer for his conduct civilly and could face criminal charges for other conduct described in the AG’s report that occurred elsewhere in New York state.

But if there is a gap in the law, it's not something a prosecutor can fix. That is the responsibility of the New York legislature. Gaps in the law can be closed. This could happen when someone’s offensive or outrageous conduct comes up short of a crime or when crimes are committed in new and different ways as technology or societal values change. 

We are former colleagues of Rocah and remain her friends. We write not to applaud her but to applaud her decision, along with the decisions of the other district attorneys. If we thought they were wrong on this matter, we would say so. We know, as former United States attorneys, that certain decisions invite scrutiny and criticism. 

Perhaps they could have dodged that criticism by doing the wrong thing – and charging a case that should not be charged – but that would be unwise and unethical.  By declining prosecution, they got it right.

Barbara McQuade (@BarbMcQuade), Chuck Rosenberg and Joyce Vance (@JoyceWhiteVance) are all former federal prosecutors.