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Why It Might Be Difficult to Convict Andrew Cuomo of Forcible Touching

The charge of forcible touching is itself a new one, created in response to the fracas that broke out following the 2000 Puerto Rican Day Parade. One scorching Saturday afternoon after the parade, dozens of women were attacked by a throng of men in Central Park, who groped and robbed them and drenched them with water. The resulting outcry pushed lawmakers to strengthen penalties for sex crimes.

At the time, groping incidents were handled using a sex abuse statute that qualified perpetrators to a maximum jail term of 90 days. Under the new forcible touching provision, defendants had the right to a jury trial and could face punishment of up to a year in jail.

Even so, as a misdemeanor, forcible touching is on the milder end of the sex crime charges list and requires prosecutors to clear a relatively high bar. To win a conviction under the statute, Mr. Soares would need 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 said that to make such a case, a prosecutor would seek to show that the complaining witness is credible, consistent and has no ulterior motive. Witness testimony is considered evidence in a court of law — but juries sometimes struggle to apply this standard in sex crimes cases, lawyers said, applying a level of skepticism beyond that typically seen in criminal matters.

One way to overcome this skepticism, prosecutors said, is to put a mother, sister or colleague who an assault victim might have confided in immediately after the incident on the stand, to illustrate to the jury that they have repeatedly told the same story.

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

“We know a delayed report is often the norm, not the exception,” Ms. Manning said. “For assessing credibility, the more useful question is not ‘How quickly did she report?’ but ‘What were the circumstances surrounding her decision to report, whenever it happened?’”

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