Wednesday’s Pennsylvania Supreme Court ruling setting Bill Cosby free was a gut punch to sexual assault survivors and advocates who, coming out of the #MeToo movement, were starting to believe they could find justice.
They might now conclude that the deck is stacked, and they should sit down and be quiet. For survivors of sexual assault, coming forward can be a traumatic experience.
We all thought Cosby’s self-incriminating statements in a civil case brought by one of his alleged sexual assault victims would finally pave the way for his conviction. The lower court’s decisions to uphold that conviction led us to believe the system was finally taking seriously claims of abuse by powerful men. But the state Supreme Court’s decision to overturn that conviction shattered our collective hope.
The most damaging aspect of this ruling is that survivors, including many of my clients, may rethink their decision to step up and share the painful truth in order to pursue their claims. They might now conclude that the deck is stacked, and they should sit down and be quiet.
For survivors of sexual assault, coming forward can be a traumatic experience, but it also has the power to do social good when it results in perpetrators facing punishment and losing the opportunity to prey on more victims. The system, though, has long worked against survivors. The Rape, Abuse & Incest National Network reports that out of 1,000 sexual assaults, 975 perpetrators go free.
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When I talk with sexual assault survivors, I hear their reluctance to step forward. It usually involves a mix of misapplied guilt — ‘What did I do to deserve this?’ — and fear that they will be the ones held in judgment, facing a deluge of rhetoric that they are at fault for the abuse or are just seeking attention or money. Others don’t report their experiences because they fear retaliation will affect every aspect of their lives, undoing the very fragile balance they’ve managed to navigate after undergoing trauma.
It has been a long battle to give survivors the voice they deserve in seeking justice, but we’ve seen some glimmers of hope — until Cosby was set free.
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The #MeToo movement has empowered survivors, largely women, to stand up and speak out against their abusers, demanding large-scale change for protections of those who come forward and, importantly, accountability. This was never more apparent than in my work on the civil sexual assault case against Harvey Weinstein. For these women, the rallying cry wasn’t just justice — it was change.
We saw other advancements on the legal front. Recognizing it takes time for survivors to come to grips with their abuse, many states have extended the statute of limitations or at least offered lookback periods, providing a specific window for victims to pursue allegations of abuse.
Then came Wednesday’s overturning of Cosby’s conviction. I could rail about various aspects of the ruling, but the most galling is the agreement the original district attorney, Bruce Castor Jr., entered into with Cosby, effectively saying his office would never bring criminal charges against him regardless of any additional evidence.
Castor said he did this because there was insufficient evidence at the time to convict Cosby, and by promising not to bring charges, he denied Cosby the ability to invoke the Fifth Amendment to avoid giving incriminating testimony about himself in a lawsuit seeking monetary damages by an alleged victim, Andrea Constand.
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Subsequently, that testimony informed Cosby’s conviction in a later criminal case brought by other prosecutors. The court set him free because it said the state had to honor the prosecutor’s original promise that he wouldn’t be charged, since the comedian relied on it when he didn’t invoke the Fifth Amendment in the civil suit.
However, the fact that the state Supreme Court gave credence to this bargain was wrong, pure and simple. This was an agreement that was done without full transparency, and as such it should have been insufficient to deny the opportunity for justice in this case. (Cosby has denied all wrongdoing and has previously stated his contact with Constand was consensual.)
I have spent most of my legal career representing survivors of sexual assault, and I am terribly concerned with the impact of this ruling. Survivors are burdened with the fear that no one will believe them and that the anguish they will endure in an investigation or trial would outweigh the benefit to themselves or other potential victims.
Now they are making that decision in the face of harsh reality — a man, who by his own testimony drugged women before sex, walks free. I am afraid that in their minds, they are thinking, “Why try?”
Cosby’s release isn’t the first miscarriage of justice, and it won’t be the last. For the sake of survivors, we can and must do better.
One of the first ways we can do right by survivors is by insisting on transparency in the criminal and civil systems. The fact that the DA’s agreement not to charge Cosby was done without judicial oversight is a concern that should sound alarms across the profession. We rely on this transparency so we don’t insulate and protect wrongdoers.
We also need to continue to rethink how we set statutes of limitations, recognizing that many survivors may take time to report or pursue civil claims, especially as police and prosecutors conduct investigations that can take years before reaching an outcome.
Cosby’s release isn’t the first miscarriage of justice, and it won’t be the last. For the sake of survivors, we can and must do better to dismantle a system that propagates a legacy of reluctance and silence so survivors are empowered to speak up.