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Bill Cosby’s conviction on sexual assault charges last week was hailed as a victory for victims. But how much has actually changed for those who come forward with such accusations?
Along with the rapid rise of the #MeToo movement, the Cosby case has amplified accusers’ voices, and legal experts expect that that will encourage more victims to speak up and more law enforcement officers to take their complaints seriously. The case has also already shifted the legal landscape, with dozens of states extending or eliminating statute of limitation laws to give accusers more time to go to the police.
But despite the euphoric cheers of “Justice for women!” outside the Pennsylvania courthouse where Cosby was convicted last Thursday of drugging and sexually assaulting Andrea Constand, victims’ advocates and legal experts warn that there is still much more work to do. Most victims of sexual assault do not come forward at all, and when they do they often still face the same obstacles that Constand experienced in the Cosby case, including not initially being believed by authorities.
“I’m cautiously hopeful, but I really feel you cannot make a generalization about the entire country’s ability to deal with sexual violence based on one criminal case,” said Kristen Houser, chief public affairs officer for the National Sexual Violence Resource Center, a Harrisburg, Pennsylvania-based group that collects and disseminates data and information about sexual violence.
Legal experts also point to some of the unusual features of the retrial of the 80-year-old comedian that may have contributed to the guilty verdict, which followed a mistrial last year in which the jury deadlocked. Cosby’s celebrity, and the voices of dozens of women who have publicly accused him of misbehavior ranging from groping to sexual assault or rape, garnered feverish media attention. Cosby's wife, Camille, blamed that media attention in part for the conviction, which she called "mob justice" in a statement released Thursday. A deposition from a 2005 civil case in which Cosby admitted giving a young woman quaaludes in order to have sex with her was also unusual, as was a judge’s decision to allow five additional accusers to testify that Cosby had drugged and sexually assaulted them so that prosecutors could show a pattern of misconduct.
This case represents a shift and signal to both survivors and perpetrators.
“We have to look at the real importance of the dozens of accusers and how this drove the prosecution in all of the ways that are unlike the garden variety of sexual assault cases,” said Deborah Tuerkheimer, a professor of law at Northwestern University’s Pritzker School of Law.
“If that’s what it takes to get a conviction, that’s halting progress at best,” she said.
Cosby now faces up to 10 years in prison and a $25,000 fine for each of the three counts of aggravated indecent assault he was convicted of. Cosby has denied all allegations of sexual misconduct, and his attorneys have said they plan to appeal.
The #MeToo shift
Some victim advocates see the Cosby case as part of a groundswell that shows no sign of slowing.
“I think this case represents a shift and signal to both survivors and perpetrators,” said Rebecca O’Connor, vice president of public policy at Rainn, the Rape, Abuse & Incest National Network, a Washington-based nonprofit dedicated to combating sexual assault. She said that the more than 150 accusers who gave statements at the sentencing hearing of Larry Nassar, the former USA Gymnastics doctor, along with dozens of Cosby accusers, showed “that there is accountability, and that we need more survivors to come forward if we ever want to move the needle.”
She noted that Rainn received 10,0000 more calls to their hotline for victims of sexual assault in 2017 than the previous year and attributed part of that spike to high-profile sexual assault prosecutions, such as Cosby’s.
But, she added, reporting rates are still relatively low when compared to other crimes.
O'Connor cited data from the Department of Justice’s annual national crime victimization survey: It found that only 310 of every 1,000 sexual assaults are reported to police. In other words, about two out of three go unreported.
“This tells us in part that the system still needs to evolve,” she said.
The Cosby case and myths about sexual assault
Advocates also said the Cosby trial put the spotlight on persistent myths about sexual assault and did much to dispel them. During the trial, Cosby’s attorneys tried to undermine the credibility of his accusers by pointing to their alcohol and drug use, questioning their morality and suggesting that they were sexually promiscuous. They called Constand a “con artist" and another accuser, Janice Dickinson, a “failed starlet” who “slept with every single man on the planet.”
“I think the case represents a rejection of what is a very old, tired and common defense of blaming and shaming victims for their own rape and assault," said Jennifer Long, a former Philadelphia prosecutor and CEO of AEquitas, a Washington-based group dedicated to providing prosecutors with training and education about sexual violence. “The fact that it was not effective in this case sends a great message because hopefully defense attorneys will think twice before they pull that out.”
Cosby’s lead defense attorney, Tom Mesereau, did not respond to requests for comment.
Gloria Allred, who along with her daughter, Lisa Bloom, represents four out of the five accusers other than Constand who took the stand in Cosby’s retrial, said she does not believe the case will lead to a drastic transformation in courtroom dynamics.
Defense attorneys may take “a little more measured approach to not turn off the jury,” she said, but that “at the end of the day, they will still do what it takes to vigorously defend their clients.”
Advocates on behalf of sexual assault victims also pointed to the prosecution’s decision to put forensic psychiatrist Dr. Barbara Ziv on the stand. Ziv testified that Constand’s delayed reporting of the incident — one year after it happened — is not uncommon among survivors, and that the phone calls between Constand and Cosby after the assault are also not uncommon.
“Having experts come forward to explain the neurobiology of trauma, I think we are going to continue to see this sort of approach from prosecutors,” O’Connor, of Rainn, said.
Houser, who has worked with sexual assault survivors for more than 26 years, said she believes the case has raised awareness about the psychology of victims and why they may delay reporting assaults to police.
“It can take many months and years for people to use big giant scary words like the ‘R-word’ and say, ‘I was raped,’” she said.
How the case could change prosecution of sexual assault
Victim advocates also say the high-profile nature of the Cosby case will strengthen awareness among key decision-makers in the criminal justice system — police investigators, prosecutors, judges and medical professionals who examine victims — about how deeply ingrained biases have prevented cases from going forward.
We failed Andrea Constand back in 2005. We failed her.
In closing arguments, prosecutor Kristen Feden apologized for the Montgomery County DA’s failure to prosecute Constand’s case when she first went to police in 2005.
“We take full responsibility for it,” Feden said. “We failed Andrea Constand back in 2005. We failed her.”
Tuerkheimer, the Northwestern law professor, said there is now a greater awareness about “credibility discounting,” in which, “at every stage of the criminal justice process, victims are treated with informal skepticism, and a starting point of doubt.” The apology, she said, was a reminder that “you often don’t get a second chance in these cases.”
The role of statute of limitation laws
For nearly all of the accusations against Cosby, some of which are more than 30 years old, the statute of limitations barred prosecutors from bringing charges against him.
But in the wake of the claims, some states have begun to change those laws. California abolished its statute of limitations for almost all felony-level sex crimes in 2016, after Lili Bernard, who alleges Cosby gave her a drugged drink and raped her, and others held rallies calling for the change, including at Cosby’s star on the Hollywood Walk of Fame.
“We felt we could do something to transform our trauma into triumph,” Bernard said.
Dozens of other states, such as Colorado and Nevada, have extended their deadlines for accusers to report sex crimes in recent years. Lise-Lotte Lublin, one of Cosby’s accusers who also testified at his trial, helped spur reform in Nevada — the state where she alleged that Cosby drugged and raped her in 1989. The state had a deadline of four years for prosecution of sex crimes, but after Lublin’s advocacy, the deadline was extended to 20 years.
How to define consent
The Cosby case may also give further momentum to a push to legally define consent in new ways.
After the Cosby jury asked Judge Steven O’Neill during their deliberations to give them a definition of “consent,” the judge instructed it to use “common sense,” as Pennsylvania does not have a legal definition.
Part of the problem, said Tuerkheimer, who wrote a 2016 article on the issue, is that most states still define rape as a physically forced encounter. Even states that don’t require proof of force still require accusers to show they objected to the assault, Tuerkheimer said.
A different definition of consent, focused on whether an accuser assented to the sexual encounter, has taken hold on some college campuses.
Out of the more than 4,000 higher education institutions in the country, about half have adopted some definition of sexual consent into their disciplinary code, said Michelle Issadore, vice president for operations and public information for The Ncherm Group, a Berwyn, Pennsylvania-based law firm that helps schools draft codes of conduct. Some of those definitions note that “threat of force or incapacity” are not necessarily the only hallmarks of sexual assault, she said.
Critics worry that these affirmative consent policies could criminalize sexual encounters that society still considers the norm, but some states, including California, have begun requiring colleges to adopt them.
As debate over sexual assault and consent continues, it’s clear to experts as well as Cosby’s accusers that the case will reverberate for years to come.
“I really do see the abolishment of the statute of limitations, the #MeToo movement, and the ‘guilty, guilty, guilty’ verdict as having merged to effectuate this breakthrough,” Bernard, one of Cosby’s accusers, said. “I don’t look at all of this as an anomaly — I look it as a breaking point.”