If Gov. Andrew Cuomo fights sexual harassment charges, he'll regret his statements

If critics thought New York Gov. Andrew Cuomo would relent in the face of 11 women accusing him of disgusting acts of sexual harassment, they do not know Andrew Cuomo. The man who once said “I am not a superhero” is now denying that he is actually a super villain who groped and harassed young women, including a current staff member.

After lashing out at his accusers and critics, Cuomo said Tuesday that he welcomes "the opportunity for a full and fair review before a judge and jury.” He might want to focus on the judge (many of whom he appointed) because his public statements may have torched any jury trial unless a “jury of my peers” means 12 Andrew Cuomos.

A straight, white, American man doesn't have a 'cultural defense'

Cuomo locked himself into a defense that he might later regret. In his retort to the report of New York Attorney General Letitia James, Cuomo raised both “cultural” and “generational” defenses to claim that any comments or conduct should be excused because he is a product of his times and his background.

Our View: New York Gov. Andrew Cuomo must resign following AG report finding he sexually harassed women

Cuomo spent much of his statement arguing that he is often misunderstood about his kissing, hugging and touching. As he spoke, pictures showed him kissing everyone short of "a cop down on Thirty-Fourth and Vine." The culprit, it would seem, is not "Love Potion No. 9" but his Italian heritage. Cuomo insisted that his mother taught him to hug and kiss everything short of lampposts.

As an Italian, I have previously objected to our heritage being used as an excuse in public scandals. It is true that Italians are “touchy,” but we have no problem telling the difference between the tactile and the criminal. The pictures showed Cuomo’s mother kissing him. These women are likely to note that they are not only nonfamily members but did not want to even be familiar with Cuomo. The most serious allegations involve allegations of the groping of the breasts and bodies of women. Cuomo would not have made it out of my grandmother’s kitchen alive if he tried the “I’m Italian and a bit gropy” line with one of my female cousins.

There is a term for this defense. It is aptly called the “cultural defense.” In prior years, I have participated in conferences to teach federal and state judges in how to deal with such claims in criminal and civil cases. The strongest claims involve immigrants who continue to follow cultural norms or practices that run afoul of legal standards in the United States. Some defendants accused of child abuse or assault rely on customs as defenses showing a noncriminal intent.

For example, in 1997, a Danish woman was charged with child neglect for leaving her 14-month girl in a stroller outside of a restaurant as she ate inside. She claimed that in Denmark, that was considered normal and healthy. (The charges were eventually dropped.)

People v. Moua involved a man who went to the campus of Fresno City College and forcefully carried off a female student as she fought him to an awaiting van. When police traced them to a motel, the man explained that the Hmong culture followed a “marriage by capture” tradition where women are expected to resist their future husbands. After the judge ruled that Moua would be allowed to present the cultural defense, the prosecutors agreed to a plea of a misdemeanor.

Cuomo, however, is presenting the weakest form of cultural defense. He was raised in this country, and he is not just familiar with sexual harassment laws but actually pushed through a law imposing a lower standard of proof for victims in New York. There are no “internship by capture” traditions in federal or state government. There are actually laws to stop such traditions.

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The problem for Cuomo is that this defense was made publicly in response to the report by the state attorney general. As such, it could be admitted in any trial, particularly in rebuttal or impeachment. The worse statement is his claim that alleged inappropriate statements to staffer Charlotte Bennett were really his effort to engage in therapeutic sessions with her as a past victim of sexual harassment. Opposing counsel would juxtapose Cuomo’s statement that he was merely engaging in therapy with allegations of outrageous questions over sexual tastes as well as the groping of other women. It would produce a truly cringeworthy moment before a jury.

Believe all women, but only if they're accusing Republicans

It is less likely that other comments will be admitted like Cuomo declarations against Brett Kavanaugh when he was accused of sexual assault during his confirmation hearing to the Supreme Court. At that time, Cuomo went public to oppose Kavanaugh and insists that we must believe women who raise such allegations.

In 2018, he explained that "only a political skeptic could find a reason to disbelieve (Dr. Christine Blasey Ford). To cheapen or ridicule the pain a woman suffers from a sexual attack is disgusting – sexist and disgusting. To second-guess how a woman should've acted after a sexual attack is sexist and disgusting."

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Cuomo is now actively pitching his political and legal case to those “skeptics.” He is likely to face years of civil litigation in addition to impeachment. It is not clear the cultural or generational defenses will work any better in actual courts than the court of public opinion. Even President Joe Biden (who was himself accused of sexual harassment by a former staff member) has called for Cuomo to resign in light of these allegations.

Cuomo has a right to his day in court to prove his innocence. However, the governor might find that his most difficult witness could be Andrew Cuomo.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley

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This article originally appeared on USA TODAY: Gov. Andrew Cuomo's sexual harassment defense will backfire in court