Bloomberg Law
Aug. 12, 2021, 8:01 AM

Cuomo’s Defense: The Line Between Zealous Advocacy, Victim Shaming

Lauren Stiller Rikleen
Lauren Stiller Rikleen
Lawyers Defending American Democracy

New York Gov. Andrew Cuomo’s (D) resignation does not end his legal woes arising from the sexual harassment allegations set forth in the damning 165-page report issued by Attorney General Letitia James (D). What his resignation may demonstrate, however, is that crossing the line between a zealous defense and the shaming of victims will not help a client in peril.

James’s report found that the governor engaged in a pattern of behavior that involved unwelcome and unwanted touching, as well as numerous offensive and sexually suggestive comments. In response, Cuomo’s legal team offered the requisite attacks on the credibility of the AG’s investigation by: calling the report a one-sided ambush that omitted information; accusing the investigators of biased questioning; and demanding access to the underlying transcripts and documents. Cuomo denies the harassment allegations.

While the governor is entitled to such vigorous efforts, his personal lawyer, Rita Glavin, has further engaged in the devastating tactics that cause most workplace victims to endure sexual harassment in silence.

A Sadly Successful Pattern

Consider Executive Assistant #1, whose allegations—including nearly two years of enduring inappropriate conversations and unwanted touching from the governor—filled 16 pages of the AG’s report. Notwithstanding the extraordinary details in the report, Glavin seized on aspects of the Executive Assistant’s April interview with the Albany Times Union to discredit her factual account and insinuate that she had underlying motives to make a claim against the governor.

Glavin also offered excerpts from emails and other information to imply that the victim had a comfort level and familiarity with the governor that would belie revulsion at—indeed, the very existence of—the governor’s advances.

Like so many before her who have protected the powerful, Glavin’s points implied that there were no inappropriate advances because the executive assistant never showed her discomfort at the time. Moreover, Glavin seized on the large coterie of staff constantly surrounding the governor who have not corroborated the claims as further proof that there were no untoward behaviors.

Glavin’s defense follows a sadly successful pattern that victims of workplace sexual harassment face. By criticizing the silence, the defense imposes on victims the burden of an immediate response to their harasser, notwithstanding the power imbalance, the fear of retaliation, or the economic circumstances that could tether them to their job.

Moreover, it ignores the very real dynamic that often occurs when those in positions of power and privilege are accused of negative behaviors, where the instinct of their colleagues and advocates is to protect and defend. Such a defense places a victim in the untenable position of facing the risk of getting fired by speaking up at the time— as the executive assistant feared would happen—or facing public ridicule and disbelief for speaking out in the future.

Weaponized Victim Shaming

When Brett Kavanaugh was nominated to become a U.S. Supreme Court Justice, Dr. Christine Blasey Ford cast aside decades of silence and testified before the Senate Judiciary Committee that he sexually assaulted her at a party when she was 15. Ford was harshly criticized for not recalling minor details relating to the specific address or how she got home, even as the details of the attack were seared in her memory and specific in the retelling.

Instead, Ford’s testimony was overrun by a freight train of power and privilege that surrounded and protected Kavanaugh. Similarly, those who shared their stories with the Attorney General’s investigators are facing the barrage of a defense that is the equivalent of a public pummeling.

Silence has long been the fuel that perpetuates misconduct. High profile examples of victim-shaming support a message that speaking out will be weaponized through character assassination, humiliation, and disbelief, allowing silence to become both a shield for the perpetrator and a sword in the heart of the victim.

Hope for the Future

As a form of defense, such shaming is wrong. And it is searingly effective in keeping victims silent. But there is hope.

In response to Cuomo’s vehement denial of any wrongdoing, Executive Assistant #1 filed a criminal complaint against the governor with the Albany County Sheriff’s Office. In her first network interview, she described her response to his denials and her belief that there must be accountability for the behaviors.

Executive Assistant #1, now revealed to the world as Brittany Commisso, has finally found her voice. She deserves to be heard. And she must not be shamed for a past silence born of a realistic fear for her job and a clear-eyed recognition that there was no one at work who would protect her.

Minutes before Cuomo announced he would resign, Glavin continued her public attacks on the report and the victims. The fact that her client is about to be the former governor offers a lesson as to tactics that may no longer work.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Lauren Stiller Rikleen, president of the Rikleen Institute for Strategic Leadership, is an attorney and the author of “The Shield of Silence: How Power Perpetuates a Culture of Harassment and Bullying in the Workplace.”