Why Prosecuting Bill Cosby Won’t Be As Difficult As It Once Was

© AP Photo/Matt Rourke Bill Cosby, center, leaves the Cheltenham Township Police Department where he was processed after being arraigned on a felony charge of aggravated indecent assault Wednesday, Dec. 30, 2015, in Elkins Park, Pa.
© AP Photo/Matt Rourke Bill Cosby, center, leaves the Cheltenham Township Police Department where he was processed after being arraigned on a felony charge of aggravated indecent assault Wednesday, Dec. 30, 2015, in Elkins Park, Pa.

Prosecutors are only beginning what will surely be a difficult yet monumental case against Bill Cosby, who was charged Wednesday in Montgomery County, Pennsylvania, in an alleged 2004 sexual assault. 

But prosecuting rapists and sexual assailants used to be even tougher in the state of Pennsylvania. Thanks to a relatively new law, and a recent court decision upholding it, prosecutors in the Cosby case will be able to counter the rape myths that come with sexual assault charges — myths that have been in full view in the years that allegations have dogged Bill Cosby.

Only since 2012 have prosecutors in Pennsylvania been allowed to bring in outside experts on sexual abuse to address common behaviors among survivors — such as waiting to report the assault, self-blame and continuing a relationship with their assailants.

“The research is very clear that jurors and other laypersons and fact-finders come into sexual assault cases with a lot of misconceptions about sexual assault and about sex assault survivors and these misconception lead them to often to blame the victim for her own victimization,” said Viktoria Kristiansson, an attorney advisor for AEquitas, a Washington-based group that provides resources for prosecutors in sexual violence cases. Kristiansson spoke to TPM after the charge against Cosby was announced.

Pennsylvania was the last state in the country to lift its ban on the testimony of outside experts in sexual assault cases. The 2012 law allowing their testimony was upheld by the Pennsylvania Supreme Court last month.

“If we don’t have this expert testimony to allow the jury to understand what sexual assault is all about and that many victims of sex assault may commonly behave in ways that seem counter-intuitive, the jury is left then with very little understanding why some of these things may have occurred,” Kristiansson said, which in turn makes jurors less likely to convict.

The law was passed in part because of a high-profile case known as the “Match.com rapist,” where nearly a dozen of women accused a man of wining and dining them, before drugging them and raping them while they were unconscious.

According to Deborah Harley, at the time chief of the Family Violence and Sexual Assault Unit of the Philadelphia District Attorney’s Office, misconceptions about rape victims’ behaviors made it harder for prosecutors to convince the jury.

“Some of the victims were in denial, some blamed themselves. They didn’t fight back. Some obviously experienced memory loss because we believe they were drugged,” Harley told the Philadelphia Weekly. The Match.com case, along with the child sex abuse case of former Penn State football assistant coach Jerry Sandusky, and sex abuse allegations against Catholic clergy led to the push behind finally passing the law.

Andrea Constand, the alleged victim in the Cosby case, first reported Cosby to police in 2005, about a year after the incident allegedly occurred, in January or February 2004.

The comedian has since faced a wave of accusations — coming from more than 50 women, according to New York Magazine’s count — that he assaulted women over the decades of his career. Many of the accounts exhibit the same details of Constand’s allegations — that Cosby gave her unknown pills that rendered her defenseless before physically assaulting — but Constand’s case is the first time Cosby has faced criminal charges.

A number of the accusers were unable to bring criminal charges due to statutes of limitations, the lengths of which vary by state. Constand’s case is squeaking in right under Pennsylvania’s deadline of 12 years, which was extended from five years in 2002.

Prosecutors declined to pursue Constand’s original complaint, but at a press conference announcing the new charges Wednesday morning, the First Assistant District Attorney Kevin Steele said that fresh evidence — including testimony by Cosby unsealed this year from a civil lawsuit — made re-opening the case “ not a question” but rather “a duty.”

According to the affidavit, Cosby admitted in the deposition that he gave Constand the pills, positioned himself behind her in the “spooning” position, and digitally penetrated her.

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Source: Talking Points Memo | Tierney Sneed