Just Because Cuomo Deserves Due Process Doesn’t Mean He Shouldn’t Resign

Just Because Cuomo Deserves Due Process Doesn’t Mean He Shouldn’t Resign

Just Because Cuomo Deserves Due Process Doesn’t Mean He Shouldn’t Resign

Sexual assault victims face an impossible burden of proof. We know enough to demand that the governor step down.

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In Assume Nothing, Tanya Selvaratnam’s memoir of intimate partner violence during her relationship with former New York attorney general Eric Schneiderman—published just one day before the first public report of sexual misconduct by Governor Andrew Cuomo—she agonizes over the fact that there’s no “proof” of her abuse. Weighing whether to go public, Selvaratnam grapples with the daunting reality that it will be just her word against his, noting Catharine MacKinnon’s observation that in rape trials, it typically takes three to four women to counter one man’s testimony, rendering each, “for credibility purposes, one-fourth of a person.” Indeed, when she ultimately decides to tell her story to The New Yorker, she’s buttressed by three other women with nearly identical experiences. On May 7, 2018, the story went live online just before 7 pm, and by 10 pm Schneiderman had resigned, helped along by Governor Cuomo, who in the intervening three hours offered the following assessment:

No one is above the law, including New York’s top legal officer. I will be asking an appropriate New York District Attorney to commence an immediate investigation, and proceed as the facts merit. My personal opinion is that, given the damning pattern of facts and corroboration laid out in the article, I do not believe it is possible for Eric Schneiderman to continue to serve as Attorney General, and for the good of the office, he should resign.

Three years later and facing nearly a dozen reports of sexual misconduct himself, including assault, Cuomo is singing a very different tune. Despite calling for Schneiderman’s resignation and an investigation, he’s created a false dichotomy in his own case, implying that the former undermines the latter. Waving around the concept of due process as a shield, he’s played to the court of public opinion, where the bar for evidence is considerably higher for women than the actual standard in law. Even feminists like Gloria Steinem can slide into this trap, punting on questions about whether Cuomo should resign—after six reports of sexual misconduct had already come to light—by saying, “Everyone is entitled to an investigation.”

The thing is, the attorney general’s investigation isn’t going to prove anything we don’t already know. Among the governor’s various denials, he’s left undisputed the facts of the account by Charlotte Bennett, in which she describes him grooming and soliciting her for sex—a clear violation of New York state’s human rights law. Regarding the other allegations, the investigation probably won’t turn up any proof hard enough to satisfy Cuomo’s most ardent defenders, or even casual CSI fans. It will simply reveal more of the facts in evidence: contemporaneous text messages or e-mails to friends and family recounting the abuse, as well as corroborating documents and witnesses (who probably won’t have video of the governor shoving his hand up anyone’s blouse). Just like in every other workplace harassment investigation, it’s he said, she said, and in at least one instance, he doesn’t say anything different from what she says.

The investigation is of course necessary to establish the full extent of Cuomo’s wrongdoing and the liability of his associates. But it does not preclude resignation, which is about a moral and ethical standard for office—something not captured by a poll showing that 88 percent of Democrats support an investigation first rather than resignation. Cuomo is clinging to the polls, but they more closely reflect standard-issue sexism and the ordinary person’s ignorance of the law than anything else. Thirty years ago, Anita Hill confronted the same problem. Over the course of nine days, 11 national polls found that the vast majority of Americans believed Clarence Thomas. A year later, the results flipped. What happened?

As with Hill, none of the polling questions on Cuomo actually described the reported abuse, having asked respondents instead to speculate on “sexual harassment,” as if it were an ill-defined matter of personal opinion. Leaving settled law up to debate confuses the issue and puts the protected class at a disadvantage by calling their rights into question. A March 18 Quinnipiac poll further muddied the issue by offering a forced choice between investigation and resignation, as if the two were mutually exclusive. Fast-reaction polls about unfurling events often catch people in the middle of forming an opinion and may push them into taking positions that usually favor the status quo. That seems to be what happened with Hill, whose credibility crumpled under the polls, allowing the Senate Judiciary Committee to proceed with Thomas’s confirmation. It seems likelier that the huge swing a year later reflects that people were still making up their minds during the hearings than that they completely reversed their positions. Social scientists who conducted face-to-face interviews with 100 women within weeks of the hearings also found much richer answers. Hard-core Thomas supporters, for instance, tended to define sexual harassment as including physical touch—a point Cuomo also keeps hammering as (false) “proof” that he didn’t harass anyone. Another of the study’s key findings was a category of supporters called “Thomas by default,” comprising women who weren’t necessarily positive toward the Supreme Court nominee but were more skeptical of Hill’s motives. It’s that baked-in suspicion that skews how women are heard: not as reliable narrators but as inherently lacking in objectivity. Why else would Cuomo’s chorus of supporters, like former congressman Charlie Rangel, keep clamoring for patience—Back off, until you’ve got some facts—as if we don’t already have enough information to act?

For the same reason that, as recently as 2018, a New Hampshire appellate court overturned a rape conviction after the defendant learned that two women in his jury were survivors of sexual assault. And that The Washington Post, up until March 2021, banned Felicia Sonmez from reporting on rape after she disclosed she was a survivor herself. Women are disqualified as witnesses to their own experiences, requiring an undue burden of proof to overcome the suspicion of bias.

Due process is just a lie we tell ourselves.

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