Jeff Herman, Esq. writes about Comedy and Tragedy: The Downfall of Bill Cosby, America’s Dad
“Why are you here?” an assistant district attorney asked in open court. “For justice,” replied Andrea Constand, a survivor of sexual assault at the hands of Bill Cosby.
I hear this response all the time, and it is my honor to help survivors seek their own justice. My work is exclusively civil — I do not handle the criminal prosecution of sex offenders where the end result is a restriction of liberty, most often jail time. Instead, I use my skills in civil litigation, often bringing lawsuits alleging negligence, against the institutions that employ sexual perpetrators that had a duty to protect their clients from these dangerous members of the community.
I’ve intently watched Bill Cosby’s retrial and have realized its meaning both in regards to my own practice and to society as a whole. The good news is that it’s becoming less common to re-victimize the survivor. Victims are telling their stories sooner rather than later, and people believe them. The bad news, however, is that there is more work to be done. Undertones of “rape culture” and “she knew what she was doing” permeated Mr. Cosby’s defense. This century’s legal “dream team” thought that these myths would help lead to an acquittal. They were wrong. These arguments, at the end of the trial, did not prove persuasive, and it didn’t take long for the jury to agree on conviction.
In my review of the trial proceedings, I discovered that around sixty women over the past five decades have publicly accused 80-year-old Bill Cosby of being a sexual predator, but statute of limitation laws have allowed only one charge to be brought to trial. Some of his accusers were present in court last month, and this was the second time the actor had stood trial for the allegations, after an earlier jury failed to reach a verdict in June 2017.
The people of Pennsylvania brought that one charge on behalf of Andrea Constand. Attorneys for Ms. Constand, the 45-year-old former basketball player who accused Mr. Cosby of aggravated indecent sexual assault, claimed that the entertainer had used his fame and power to lure women into situations that only he controlled — a claim five other women were called on to support over the course of the retrial. In fact, all five women testified that the comedian had plied them with drugs or alcohol before sexually assaulting them. The pattern was clear and compelling.
The state’s charges stemmed from an incident at Mr. Cosby’s Philadelphia home in January of 2004. Ms. Constand, who was director of the women’s basketball program at Mr. Cosby’s alma mater, Temple University, testified that the comedian invited her over that night to discuss career plans. Mr. Cosby’s lawyers refuted that picture and said that he and Ms. Constand shared a romantic relationship shortly after they met.
Ms. Constand claims, though, that when she arrived at the Cosby residence, Mr. Cosby gave her drugs that he said were herbal but left her incapacitated. Minutes later, she was suffering double vision and quickly lost consciousness. She claims she awoke to find him sexually assaulting her. Mr. Cosby’s lawyers said the sex was consensual, and the comedian only gave Ms. Constand the over-the-counter allergy medication Benadryl. Ms. Constand testified that she didn’t contact police until a year later when she’d moved back to Canada and began screaming at night from persistent nightmares. Her post-traumatic stress response is quite common.
Mr. Cosby pleaded not guilty, and he did not testify in his own defense. His lawyers painted Ms. Constand as a “pathological liar” who was only looking for a settlement. In closing statements, they called the prosecution a “lynching” and decried the “mob rule” of the #MeToo movement– the well-known anti-sexual assault campaign that started years after Mr. Cosby’s initial 2015 arrest. Using this hashtag, women described their experiences of being sexually harassed and assaulted, often by famous or powerful men like Cosby. Thanks to modern day social media platforms and the #MeToo movement, women can more easily band together and support one another, thus allowing victims more freedom to come forward.
From what I understand of the courthouse scene, for many of the women gathered to watch the trial unfold, it was a victory for a larger movement, as well. The retrial took place in a radically changed and potentially more hostile environment than Mr. Cosby’s first proceeding. Since then, the #MeToo movement caught fire, raising awareness of sexual misconduct as it toppled Harvey Weinstein, Sen. Al Franken, Matt Lauer and other powerful men. Nearly every potential juror questioned for the retrial said he or she had heard about #MeToo. Perhaps just as importantly for Ms. Constand, this foundation could have helped prosecutors overcome the skepticism some jurors had last time about Ms. Constand’s yearlong wait to report her allegations to the police. For example, the first called witness of the trial was Dr. Barbara Ziv, a sexual assault expert. She had long, open-ended responses to questions from the prosecutor who succeeded in getting her to explain “rape myths,” including why sexual assault victims might not correctly remember details of their assaults and why it could take months or years for victims to come forward.
While being cross-examined, Dr. Ziv testified that no more than 7 percent of sexual assault allegations are false, and she thinks the number could actually be as low as 2 percent. I agree with this assessment. Dr. Ziv further explained that people generally believe sexual assault is committed by strangers, when, in fact, 85 percent of victims know their attackers. Fewer than 30 percent of sexual crimes are reported to police, and Dr. Ziv also advised jurors that the public often wrongly thinks that sex-assault victims do things to make themselves vulnerable to attack. Crucially, for this case, she testified that victims are often fuzzy about details, frequently wait for long periods to report their crimes, and typically maintain contact with their attackers to try to “make sense” of what happened to them.
The sequestered jury deliberated for less than two days, for over ten hours. Bill Cosby was found guilty on all three counts of aggravated indecent sexual assault, each carrying sentences of up to ten years in jail. The first count found Cosby guilty of sexually assaulting Ms. Constand without her consent, the second found that she was unconscious or semiconscious at the time of the assault, and the third found that Cosby gave Constand an intoxicant that severely impaired her ability to give consent. He’s now a felon and a sex offender. Because of his age and his blindness, the judge elected to place Mr. Cosby under house arrest with GPS monitoring rather than sending him directly to jail when the jury returned their verdict. A date for sentencing has not been set, but it will take place in a month or two. During this time, the defense team and prosecutors are preparing to present any evidence that may influence the next penalty phase.
Sentencing depends on a few factors beyond simply being found guilty. After the court has assessed Mr. Cosby’s health and has decided whether he is ultimately a threat to society, the judge will hear evidence from both prosecutors and the defense. This gives both sides the opportunity to make their cases for everything from incarceration to house arrest. Ultimately, because felony sexual-assault charges have a mandatory state prison term in Pennsylvania, Mr. Cosby could end up spending a few to as much as 30 years behind bars. At his age, that longer time would be a life sentence. My guess is that he’ll likely serve time in a lower-security prison, and he may even be sent to a facility with an assisted-living home that either has medical facilities or is located near a hospital.
Mr. Cosby’s attorneys have already indicated that they would appeal. Notice would be due around Memorial Day, and they must have a legal basis for doing so. In other words, his attorneys can’t simply appeal the verdict because they don’t like it. Instead, the defense will need to pinpoint an incident or a statement from the retrial to suggest it may have led to an unfair verdict. One possibility that might support an appeal is allowing five women to testify that the comedian drugged and raped them. This easily could have prejudiced the jury. The defense may also look to the judge’s rulings as reason for appeal. Procedurally, Cosby’s legal team can submit a motion asking the judge to overturn the jury’s verdict, move for a new trial, or ask a higher court to reconsider the conviction.
This is not the end of Mr. Cosby’s legal troubles. As we know, more than sixty women have publicly accused Cosby of drugging and/or raping them. He faces several other lawsuits that are expected to move forward this summer. In one case, Judy Huth has accused Cosby of raping her when she was 15, in 1974, making her a minor at the time of the alleged incident. Although California’s statute of limitations has long since passed for any criminal charges to be considered, Ms. Huth is pursuing this in a civil court. She could ultimately seek damages from Cosby, who has already given a sworn deposition in this case.
Likewise, former supermodel, reality television star, and one of the five women who testified against Mr. Cosby during the retrial, Janice Dickinson, is pursuing a defamation lawsuit against Cosby in Los Angeles. In March, the California Supreme Court refused Mr. Cosby’s latest appeal and ordered that the case move forward. Ms. Dickinson has publicly accused Cosby of drugging and raping her in 1982. She’s suing him for defamation after Cosby and his representatives accused her of lying about the incident.
But for this latest matter involving Ms. Constand, since this was a criminal trial, she will not receive damages at this time. Prosecutors revealed, however, that he paid her nearly $3.4 million in a 2006 civil settlement. The settlement amount, which was confidential, had not previously been publicly disclosed by either side in the case. If there are other settlements, they are unknown.
Why Mr. Cosby was convicted during the retrial and not the first trial is something legal scholars and commentators will study for some time. In my opinion, two of the big differences between the first and second trials have to do with the climate in which each case was tried and the number of witnesses who were called. In the first trial, Ms. Constand was the lone witness accusing Mr. Cosby of drugging and raping her. In the retrial, five other women, in addition to Ms. Constand, told their stories about Mr. Cosby assaulting them during the past three decades. Also noteworthy to this case is that even though the first trial occurred less than one year ago, it was a very different cultural climate. It happened before high-profile men were publicly accused of sexual assault, and it was before the #MeToo movement gained momentum. For his part, Mr. Cosby employed different legal teams for each case, and each team used a different strategy in court. Neither proved successful.
The successful Cosby verdict reflects the changing culture of our nation. It’s important to be mindful that criminal prosecution is just one form of justice. A civil lawsuit seeking money damages can help to make a survivor of sexual assault whole in a different way: financial security promotes peace of mind, gives the victim a voice, helps mitigate lost wages, and allows for the best medical care possible. In addition, a jury’s validation is extremely important in helping a survivor heal. I specialize in these types of cases, and I’ve seen the good it can do for families. To the extent possible under the law, I’d hope that the sixty alleged accusers continue to evaluate their options and consider a civil suit against Mr. Cosby. It might finally provide them with the closure they need when the statute of limitations has passed on a criminal prosecution.
— Jeff Herman, Esq.
Jeff Herman is a nationally-recognized trial lawyer and advocate for survivors of rape, sexual abuse and sexual exploitation. He represents clients of all ages, and prides himself on being able to develop a rapport with young children in particular. Jeff knows that community advocacy is vital to the prevention of childhood sexual abuse: he participates in community based organizations dedicated to preventing the sexual abuse of children through various educational programs. The views expressed here are his own and do not constitute legal advice. Nothing in this article should be considered an invitation to assume an attorney-client relationship exists.