By Carole McNall

From a column I read today:

“(High-profile man) was not charged with any crimes. End of story …”

Not quite so fast.

Decisions not to file criminal charges are an important part of such stories. But those decisions leave out a lot of chapters.

One of those chapters includes definitions of several legal concepts. Start with these two, as defined by the Black’s Law Dictionary in my office: criminal law, meaning “the body of law defining offenses against the community at large” and civil law, “the law of civil or private rights.”

Now add one more definition: the burden of persuasion or proof. Black’s says that’s “a person’s duty to convince the fact-finder to view the facts in a way that favors that party.” For criminal cases, that burden is to prove something “beyond a reasonable doubt.” For civil cases, that standard is lower; a case must be proven by a “preponderance of the evidence.”

Notice it does not say “beyond all doubt.” It does set a higher standard, recognizing that a conviction could lead to the loss of liberty. In civil cases, with less at stake (generally just money), the person suing must be able to prove their version of events is more likely than not true.

Now, add some names to our story. Former New York Gov. Andrew Cuomo resigned in August 2021 after a report from state Attorney General Letitia James. James’ investigation concluded Cuomo had sexually harassed 11 women. NFL quarterback Deshaun Watson has been accused by 22 women of sexual assault and/or harassment. He was just added to the roster of the Cleveland Browns via a trade and a massive contract.

Criminal charges against both men were considered, but not filed. Reporters covering both stories said some law enforcement people found the women in each case to be credible.

So why weren’t charges filed? Look again at the burden of proof definition. What the law enforcement people were saying in each case is that they could not find enough evidence to prove the allegations beyond a reasonable doubt. Does that mean the alleged incidents didn’t happen? Possibly, but if you consider the reports of the incidents, it could also mean that they happened in places and at times when only the man and the woman were present. Again, note enforcement people have found the women to be credible.

Both Cuomo and Watson continue to face civil lawsuits alleging the same events. The next step there will be gathering information to attempt to prove it Is more likely than not that things happened as the women allege. It’s not unusual for an accuser to be able to successfully clear the lower bar of the “preponderance of the evidence” standard when they could not jump the higher barrier of “beyond a reasonable doubt.”  

So are the decisions not to file criminal charges the end of the stories? Not as long as the civil suits are pending.

Carole McNall, an attorney, is an assistant professor in the Jandoli School of Communication at St. Bonaventure University.

Categories: Jandoli Institute, Media