In the court of public opinion, Bill Cosby has lost.
In a court of law, he would likely win. But given what we know so far, it will never come to that. If he wants it to stay that way, he should continue to keep quiet.
At least eighteen women have come forward to accuse the once venerable actor and comedian of unwanted advances, sexual assaults and even rape dating back to the late 1960’s. These are serious accusations, to be sure. But the passage of time, the credibility of the alleged victims, and the paucity of physical or forensic evidence renders the likelihood of criminal prosecutions and/or civil remedies extremely remote.
What exactly happened during these alleged encounters, we will never know. If the women are telling the truth, they have been victimized. If Cosby did none of these things, he is being victimized.
That said, here is how the law views these claims:
Statute of Limitations. Almost all of the accusations are about events --real, imagined or embellished-- that happened decades ago. This means that most civil and criminal statutes of limitations have lapsed and no cases have been pursued.
An exception is a Canadian woman who, belatedly, reported to police that Cosby had plied her with pills which made her dizzy and lose consciousness. Upon awakening, she discovered her clothes and bra undone. Police investigated the case within months of it being reported but brought no charges for lack of evidence. Undeterred, the woman filed a civil lawsuit for money damages. When thirteen other women came forward with similar stories and agreed to testify, Cosby settled out of court for an undisclosed amount of money. This case proved to be the exception, not the rule.
But even if the statute of limitations could be overcome, nearly all of the seventeen other women who have leveled similar claims against Cosby never reported them to law enforcement in a timely manner, if at all. That means there is almost no way their allegations can be verified or corroborated. No rape kit, no hospital examination, no clothing or undergarments containing DNA, and no photographs of bruises or surface injuries. Of course, there were no witnesses since sex assaults typically happen behind closed doors. Prosecutors are loathe to bring “he said…she said” cases to a jury. They are the definition of reasonable doubt.
Credibility of Alleged Victims. The majority of female sexual assaults in America go unreported. It is understandable. All too often, women keep it secret for fear of embarrassment, shame, and the trauma of reliving the nightmare during legal proceedings. The problem may be more acute in the entertainment industry which is notoriously insular. Retribution in the form of reduced career opportunities is a legitimate concern.
However, the failure to immediately report any of the Cosby allegations makes the credibility of the women suspect. The more time that passes, the more suspicious their claims become and the more easily they can be dismissed or discredited. Cosby’s attorneys, who insist their client is innocent, have suggested the stories were contrived in order to gain attention or financial gain. There could be some merit to that, but we cannot possibly know. It is an easy claim for a lawyer to make.
It is also conceivable that the women’s memories have faded or changed over time. Perhaps their stories have been exaggerated. Maybe they’ve been conjured out of thin air. It happens. Not long ago, members of the Duke University lacrosse team were falsely accused of rape. The public, not to mention school officials and many of its professors, seemed to believe the claims. In a classic case of erroneous prejudgment, they condemned the players --until the lie was exposed.
Pattern of Conduct. The most striking element of the Cosby saga is the similarity of the claims. Many of the women tell the same sordid tale: Cosby drugged them, then sexually assaulted them. Others claimed he used his celebrity and promises of career advancement to gain their confidence before physically forcing himself on them.
The sheer number of nearly identical claims tends to support their credibility that Cosby did what he is accused of doing. On rare occasions, judges will allow such “pattern of conduct” evidence to be admitted in court. But no cases have made their way in front of a jury.
Yet, the marked pattern of conduct and the astonishing volume of claims are the most damning aspects of the public case against Cosby. One or two claims could be dismissed as motivated by fame or money or obsession. After all, celebrities are sometimes unfairly targeted for their deep pockets. But eighteen women? Or more? It is hard to fathom how all of them could be fabricating.
The sameness of the claims suggests an modus operandi: that Cosby routinely used drugs to disable women so they were incapable of consent or even remembering what happened. This “M.O.” helps support the veracity of the accusers.
Is Cosby Capable of Such Acts? Cosby has been married to the same woman for 50 years. Is he capable of philandering, forced or otherwise? Absolutely. That was proven in a court of law by Cosby himself. In 1997 in a case involving extortion, he admitted under oath that he had an extramarital affair with Shawn Upshaw and paid her roughly $ 100,000 to keep quiet.
The case reveals two relevant points. First, he has a record of sex with someone other than his wife which means he’s capable of doing the same thing with multiple women. Second, he went to great lengths to hide his infidelity and probably lied about it, at some point, to one or more people. That is important because in legal proceedings past lies will impeach or cast doubt on the credibility of the accused whenever he denies any subsequent wrongdoing. Is his admitted adultery admissible? A good lawyer could find a way.
Yes, it is hard to reconcile the lovable Cliff Huxtable character with that of an alleged serial sex predator. But Cliff was fiction. And in Hollywood, duplicity and hypocrisy are endemic. The actor’s real life was laid bare inside that courtroom.
Keep Silent. Experienced lawyers tell their clients to clam up. For good reason. Clients tend to say stupid things that come back to haunt them in a myriad of ways. This is especially true when clients are lying and covering up. (When I was practicing law, I don’t think I ever had a client who told me the truth.)
In Cosby’s case, even though the statute of limitations has expired, a new claim for defamation could be brought by any of his alleged victims if he opens his mouth and denies their accusations. The best example of this is former baseball pitcher Roger Clemens, who vigorously denied the statements made by his ex-trainer, Brian McNamee, that the Yankee ace injected anabolic steroids. The denial prompted McNamee to sue Clemens for defamation –that is, an intentionally false statement which damages someone’s reputation. The case is still being litigated.
If Cosby makes any specific statements which could be construed as smearing his alleged accusers or portraying them as dishonest, he runs the risk of the kind of lawsuit he does not want. It would open the door to embarrassing details that could undermine even further the entertainer’s already tarnished name. And the burden of proof in civil lawsuits is much lower than in criminal cases.
Not Quite Justice Denied. In the court of public opinion, the “presumption of innocence” does not exist as it does in a court of law. Just the opposite. Once accusations are made, there is often a presumption of guilt. This is evidence by the actions of NBC and Netflix in cancelling Cosby’s entertainment projects. Even TV Land has halted reruns of “The Cosby Show” and dropped it from its website. Still other ventures have been mothballed.
For those who feel Cosby has escaped the course of justice, that is true only in a legal sense. In life, there is a different measure of justice. And in some ways, it is more harsh than what a court of law can levy. This is where Cosby has paid a heavy price, personally and professionally. His image is his currency. But now, it’s not worth a nickel.
His stature, his reputation, his legacy… have all been diminished. Shame can be the worst punishment of all.
Gregg Jarrett is a Fox News legal analyst and former defense attorney.