Jan. 05, 2016

Cosby ArrestAs satisfying as it was to watch Bill Cosby take a Pennsylvania perp walk last week, the bloom may soon fall off the prosecutorial rose as Cosby’s team of attorneys prepares to use the criminal case to its strategic advantage.

For example, Cosby could ask the judges handling civil lawsuits in California and Massachusetts to put the brakes on those cases until the criminal trial is over.  Generally speaking, criminal cases are prioritized over civil cases, in part because criminal defendants have speedy trial rights while civil defendants do not. In addition, a civil case could interfere with the integrity of a criminal prosecution, which is why judges usually issue a “stay” order, essentially putting the civil case on ice until the criminal matter is resolved.

It’s possible Cosby’s team will want the civil cases to remain open so that they can use the civil discovery rules to get evidence from all the victims who may be called to testify in the Pennsylvania case; discovery to which Cosby would not be entitled under criminal rules, but to which he is entitled under civil rules.

On the other hand, putting the civil lawsuits on hold would allow Cosby’s team to focus on a single case, rather than having to defend against many cases in several states at the same time. By spending his endless resources only in Pennsylvania, where the burden of proof on prosecutors is much higher than it is on the plaintiffs in the civil cases, Cosby has a better chance of winning, which would favorably affect his public image and improve his legal position in other cases.

If he stood to lose in Pennsylvania, he’d be wiser to keep the civil cases open, but the criminal case against him is weak – not because the victim isn’t credible. Indeed, hardly a “he-said she-said,” it’s more of a “he-said she-said, she-said, she-said, she-said, etc.” But the judge has discretion not to allow other victims to testify if it would be more prejudicial to Cosby than helpful to the prosecution. And even if other victims do testify, the law in Pennsylvania heavily favors rapists who use drugs to incapacitate their victims, and two of the three charges involve allegations of drugging and incapacitation.

One of the two charges requires proof that the victim was “unconscious” during the assault, which is virtually impossible to prove because an unconscious victim can’t testify about what happened during an unconscious state.  The victim could say she recalls some of what happened, during a moment when she was nearly unconscious, but Cosby will argue that her ability to remember details proves she was conscious.

The other drugging charge requires proof that Cosby “substantially impaired” the victim’s ability to “appraise or control” her conduct by “administering” drugs or intoxicants “without [her] knowledge.”  This charge is likely not provable because the victim and Cosby both acknowledge that the victim was completely sober and aware when Cosby gave her drugs and alcohol, and she consumed both willingly.  The prosecution can try to argue that the drugs were administered without the victim’s full knowledge because she thought the pills were herbal supplements, and they were obviously something much stronger, but the law doesn’t require “knowledge” of specific ingredients.  It’s helpful that Cosby made several inconsistent statements about what the pills were, and how many he gave to the victim. On one occasion he said the pills were herbal. Another time he said they were from a prescription bottle, and in a third statement, he said they were over-the-counter Benadryl.  He also made a statement about not penetrating the victim with his penis “asleep or awake,” which is a strange, protest too much thing to say, and implies a sense of guilt about what he did do when the victim was unconscious. He also failed to send the victim’s mother a written description of the pills, as promised, when she confronted Cosby by telephone soon after the attack.

But while Cosby’s lies reveal a powerful consciousness of guilt, the law requires the prosecution to prove that the victim had no knowledge that she was being administered drugs or intoxicants, and she admits to not only taking drugs she knew would relax her, but also drinking alcohol, which a reasonable person would expect to exacerbate the effects of sedatives, herbal or not.

The prosecutor claims the case is bolstered by Cosby’s admission that he intentionally used Quaaludes to sedate some of his victims, but Quaaludes are white, and the pills the victim took in Pennsylvania were blue.

A reasonable person could argue that the pill’s blue color, along with the victim’s behavioral symptoms (she had vision problems, felt “rubbery,” and lost control over her body around 20 minute after taking the pills) indicates the pills were probably benzodiazepines, which are commonly used as rape drugs, but a reasonable inference about the pills not being what Cosby said they were is not the same as proof beyond a reasonable doubt that the victim was incapacitated without her “knowledge.”

In states other than Pennsylvania, the law is much better for victims because proof of drugging “without the victim’s knowledge” is not required.  The focus in most states is simply whether the victim had sufficient capacity to make a decision, regardless of whether she drank or took drugs herself, or was covertly administered drugs by another. This approach to the epidemic of drug-facilitated sexual violence in the United States recognizes that lots of people, men and women alike, choose to become intoxicated but do not also choose to permit opportunistic rapists to violate their bodies with impunity.

This concept is not complicated.  If a drunk man’s wallet is stolen in a barroom, the thief will be prosecuted for larceny, and the defense cannot argue that the victim lawfully gave away his money while drunk.  Likewise, an incapacitated suspect cannot lawfully waive his Miranda rights and confess to a crime. This is because important decisions in life have to be made voluntarily.  If the law can protect drunks and inebriated murderers from involuntarily giving up their money and their rights, it can protect intoxicated women from involuntarily giving up their bodies.  Simply put, an intoxicated victim should be seen as vulnerable to, not liable for, the sexual violence of another because women’s bodies are at least as important as money and Miranda rights.

But the law in Pennsylvania subjugates the value of women’s bodies, and is designed to blame intoxicated women for the actions of the men who rape them.  Which is not to say people should go to jail when they drink and have sex. Lots of people have “sex with a buzz,” but they don’t go to jail because nobody reports it as a crime. The same thing happens with unreported sex between two underage teenagers. By rewarding rapists for targeting victims rendered vulnerable by their lawful decisions to consume intoxicants, Pennsylvania law effectively invited Cosby to openly hand the victim pills and alcohol because he knew the law would protect him from prosecution no matter how incapacitated she became, so long as she took substances “knowingly.”

The third charge accuses Cosby of nonconsensual indecent assault, which does not require proof of drugging and is probably the only case the prosecution could win simply by having the victim testify that she did not consent to the sexual conduct that occurred before she passed out. But Cosby has said it was consensual because the victim didn’t say or do anything to indicate a lack of consent, and while a perpetrator’s mistaken opinion about a victim’s state of mind should never trump a victim’s actual non-consent, the law in Pennsylvania, again, favors Cosby because it allows for such a “mistake” defense, though most states do not.

Hence, while the victim has said she did not consent because she was paralyzed from the drugs and could not move, Cosby will hire expert witnesses from prestigious universities who will testify that the drugs were not likely to cause a reasonable person to become incapacitated, and that Cosby’s mistake about her consent was reasonable because he had no way of knowing that the victim’s lack of objection was from paralysis rather than desire.

Even if Cosby wins in Pennsylvania, the fact that he is being criminally prosecuted is a major victory given the guy’s many layers of social Teflon.  His wealth, race, celebrity, and reputation for being a good man (false as it was) have insulated him from accountability for far too long.  Free to behave badly, many people do — especially entitled sociopaths.  After not getting in trouble for decades, even after several victims reported his actions to law enforcement, Cosby had good reason to think he could continue his behavior without consequence.

It’s hard to believe a civilized legal system could be set up to protect any man with a penchant for rendering a woman unconscious for the purpose of sticking his penis into her body parts.  But women haven’t fought for equality, much less fair justice, for decades, and most advocacy groups are government-funded, woefully co-opted, impotent, and delighted to spend their days pushing crumbs around on a half-empty plate. Indeed, very few establishment groups have spoken out against Cosby. What’s that saying? With advocates like that …..

Whatever happens in Pennsylvania, advocates with guts would be wise to get new protests going in all the other states where the statutes of limitation have not yet run out.  Prosecutors in Michigan, Illinois, New Jersey, and Georgia, for example, still have viable criminal cases against Cosby because either there is no statue of limitations, or the clock stopped running because Cosby was not “usually and publicly” residing in the state.

If prosecutors elsewhere don’t file charges, they will do so fully aware that giving Cosby a pass may well become a key issue in the next election. Just ask the guy in Pennsylvania who lost his re-election bid in 2014 after refusing to file charges against Cosby in 2005, and the guy who beat him campaigned on a promise to do justice for Cosby’s victims.

While law enforcement officials around the nation pull out their calculators and raise wet fingers to the wind to see whether there’s enough political value in joining the “prosecute Cosby” brigade, it wouldn’t hurt if just one of the presidential candidates looking to shore up the women’s vote dared to say out loud that Cosby is a monster, and that women’s lives matter, too.