If a satirist set his sights on increasingly broad definitions of sexual assault and harassment, he could hardly surpass the story of New York’s Governor Andrew Cuomo—whose “Enough is Enough” law effectively stipulates people can commit sexual assault without knowing it and who has now been accused of sexual assault or harassment by nine different women.
Under Cuomo’s law, all sexual acts qualify as assault unless preceded by “affirmative consent,” “a knowing, voluntary, and mutual decision” that “can be given by words or actions.” The catch is that “Silence or lack of resistance, in and of itself, does not demonstrate consent.” Initiators of sexual behavior willing to cease if opposed thereby become guilty of assault if the other party passively allows the behavior.
Misunderstandings are ruled to be cases not only of stupidity or immorality but of violence. The law ignores both that some are more “passive” during desired acts than others are during ones they tolerate and the lack of a meaningful difference between silence in the face of unwanted acts and verbally assenting to them merely because it is the path of least resistance.
Now Cuomo is accused of initiating flirtatious, romantic and sexual contact without waiting for the “affirmative consent” defined in his own law. According to Lindsay Boylan, Cuomo “would go out of his way to touch me on my lower back, arms and legs” and once “stepped in front of me and kissed me on the lips.” Jessica Bakeman recounted two incidents to demonstrate Cuomo often had his hands “on my arms, my shoulders, the small of my back, my waist.”. Bakeman admits that at times she offered no resistance. Boylan implicitly suggests the same and two others left the matter vague: Ana Liss claims Cuomo “hugged her, kissed her on both cheeks and then wrapped his arm around her lower back and grabbed her waist” and, on a different, occasion grabbed and kissed her hand. An anonymous accuser alleges Cuomo groped her.
Two women go further, alleging Cuomo forcibly maintained contact despite resistance: Anna Ruch claims “Cuomo put his hand on the small of her back” and that after she “promptly removed his hand...which I would have thought was a clear enough indicator” he “placed his hands on her cheeks, asking if he could kiss her” and forcibly did so as she pulled away. Karen Hinton’s accusation is that Cuomo “embraced her” and that when “she pulled away” he “pulled her back toward his body, holding her before she backed away and left the room.”
The last three make no claims of such acts. Charlotte Bennett alleged Cuomo used discussions about her having been sexually assaulted as a ploy to initiate a sexual relationship, Alyssa McGrath that he looked down her shirt. Valerie Bauman alleged flirtatiousness to the point of harassment, though certain actions she criticizes (such as how he introduced himself) seem to have been reasonable enough in themselves despite their possible intent.
Ironically Cuomo’s own law subjects his behavior to harsher legal censure than would otherwise be the case. Most accusations have him initiating flirtatious or romantic acts prior to women expressing either “affirmative consent” or opposition. Alleged forcible persistence in the face of resistance was brief. If the accusations are true, common sense suggests an aggressor but ordinary criminal justice standards couldn’t prove Cuomo wasn’t misreading situations. His law was also influenced by and implicitly promoted a “guilty until proven innocent” approach to sexual assault allegations that is now causing prominent members of his party to call for his resignation even as he insists upon waiting for the outcome of an investigation.
A further irony is that statements of Cuomo’s accusers reveal problems with the mindset behind such measures as the “Enough is Enough” law.
In the first place, the allegations not only paint the picture of an abusive aggressor but of an abusive aggressor who habitually backed down in the face of firm opposition. Rather than recognizing resistance can help control the problem, two accusers refuse to accept responsibility for their failure to resist. Bennett criticized those who “put the onus on the women to shut that conversation down” and insist that by not doing so she “was somehow engaging in that or enabling it, when in fact, I was just terrified.” Bakeman accused Cuomo of “stunning me silent.”12 In other words, both gave in to fear and use this as an excuse for refusing to fight. And it is specifically because some base claims of assault on similar refusals (when men initiate sexual acts) that politicians come up with such notions as “affirmative consent.”
A second problem is interpreting incidents through the presuppositions of and using them to advance a feminist ideological agenda. Two of Cuomo’s accusers seem guilty of this. Bauman expressed a wish to “shine a light on...devaluation of women’s voices.” Rather than bothering to allege any example of this she lumps the claim in with that of sexual harassment and leaves it there. Bakeman claims without evidence that the governor’s alleged harassment is a way to make women feel powerless rather than libidinous. She also uses ideology to excuse her failure to stand up to him, claiming it was grounded in a “reflexive assessment that most women and marginalized people know instinctively, the calculation about risk and power and self-preservation.”
Much as the multiplicity of allegations against him suggest that Cuomo is, at best, an obnoxious womanizer, it seems that the flawed presuppositions of a movement he has supported politically are now magnifying the extent of his wrongdoing while excusing the complacency of those who allowed him to mistreat them.