On June 30, 2021, the Pennsylvania Supreme Court overturned the conviction of well-known comedian (and once “America’s father”) Bill Cosby. The decision followed decades of litigation and was one of the first major wins of the #MeToo movement. While dozens of women accused Cosby of sexual assault, only one case, Andrea Constand’s, was within the statute of limitations at the time the criminal charges were filed in 2015. Proponents of the MeToo movement are (understandably) worried that Cosby’s release is a step backwards for victims of sexual assault.
As attorneys who are well-versed in sexual assault and harassment litigation, we’d like to shine some light on the Cosby saga and explain why we think the movement is still alive and well.
Since it has been years since Cosby was convicted, let’s start with a brief refresher of exactly what happened.
Sexual Assault Allegations Against Cosby Surface in 2004
According to Andrea Constand, Cosby drugged and sexually assaulted her at his Pennsylvania home a number of times between January and February 2004. After leaving her job as Operations Manager for the Temple University women’s basketball team and returning to her home in Canada, she began to experience flashbacks and anxiety from her interactions with Cosby.
On January 22, 2005, Constand filed a criminal complaint with her local police department just outside of Toronto, Canada. The Pennsylvania police started an investigation (since the incidents took place within Pennsylvania). Within weeks of Constand’s criminal report, other victims began asserting similar allegations against Cosby.
District Attorney Castor Declines to Prosecute
In February 2005, Montgomery County, Pennsylvania District Attorney Bruce Castor Jr. issued a press release announcing his decision not to prosecute Cosby criminally. Behind the scenes, Castor admitted that he did not think there was enough evidence to convict Cosby beyond a reasonable doubt and that Constand would likely have a better chance of success in a civil lawsuit. In March 2005, Constand filed a civil lawsuit against Cosby, and more than a dozen other victims testified in depositions that Cosby sexually assaulted them over the years.
In light of Castor’s decision not to prosecute, Cosby was deposed during the civil suit. Essentially, Cosby could not assert the Fifth Amendment during the civil suit because D.A. Castor already claimed that no criminal charges would be filed. During depositions, Cosby admitted that he gave Constand the drowsiness-inducing antihistamine Benadryl at his home and previously gave other women powerful sedatives when he wanted to “have sex” with them. (While “have sex” was the wording used in the deposition, the law is clear that committing a sexual act upon an unconscious person is rape.) He also admitted that he hid the encounters from his wife, made payments to some of the women whom he assaulted, and tried to prevent the incidents from being publicized.
In November 2006, the civil lawsuit was settled with Constand receiving over $3 million in damages.
More Allegations Surface and the #MeToo Movement Gains Traction
While Constand’s civil case was pending, at least 13 women stated Cosby drugged and sexually assaulted them. Many of these women, and others, came forward after the civil case was settled, publicly accusing Cosby of sexual assault. Virtually all of the victims told similar stories: that Cosby drugged them and then sexually assaulted and/or raped them. To date, 60 women (including 2 who were minors at the time) have alleged Cosby sexually assaulted them since the 1960s.
While dozens of women called out Cosby publicly after the 2006 settlement, it was comedian Hannibal Buress who drew renewed attention to Cosby’s criminal behavior during a performance in 2014. Buress’s Philadelphia performance went viral when he claimed, on stage, that Cosby had raped women. Within months, dozens of women came forward with their accusations, including many who were ignored when telling their story years prior.
New District Attorney Files Criminal Charges in 2015
Perhaps it was the rising pressure of the #MeToo movement that inspired Castor’s successor, Montgomery County D.A. Kevin Steele, to file criminal charges against Cosby in 2015. Or, maybe, Steele wanted to see some justice for the dozens of women who alleged Cosby drugged, then assaulted them. Whatever his motives, Steele filed aggravated indecent assault charges against Cosby in December 2015, based on Constand’s allegations. While many women recounted experiences similar to Constand, her case was the only one that occurred within Pennsylvania’s 12-year statute of limitations.
Although the first trial resulted in a mistrial (because the jury could not reach a decision), D.A. Steele tried the case again. During the criminal trial, Steele presented the incriminating statements given by Cosby during depositions in Constand’s civil suit. Ultimately, Cosby was convicted in 2018 and sentenced to 3-10 years in prison.
Cosby Appeals Citing Prosecutorial Misconduct
In 2019, Cosby appealed his conviction, primarily arguing that the trial judge should not have allowed the admission of deposition testimony in the criminal trial. The Pennsylvania Supreme Court agreed with Cosby, overturning his conviction. While Cosby’s release is painful to watch as an advocate and supporter of victims of sexual assault and the #MeToo movement, it is grounded in important legal doctrine.
To explain the Court’s decision in the simplest possible terms, the Justices felt the prosecutors engaged in a “coercive bait-and-switch” wherein Cosby was lured into confessing his crimes under the guise that he wouldn’t face criminal prosecution. The best way to explain this decision is with a brief review of the Fifth Amendment of the U.S. Constitution, which guarantees criminal defendants the right not to testify against (or incriminate) themselves.
If D.A. Castor prosecuted Cosby in 2005, Cosby could have availed himself of his Fifth Amendment right to remain silent and not submit any testimony regarding the allegations. As Castor admitted over a decade ago, Cosby probably would not have been found guilty by a jury absent a confession (which was unlikely to happen). Knowing Constand was going to pursue a civil lawsuit, Castor agreed not to prosecute the case criminally. The criminal investigation came to an end and Constand was successful in her civil suit.
Armed with the knowledge that Pennsylvania would not be prosecuting, Constand’s civil litigators deposed Cosby – meaning he had to answer questions under oath or face the penalty of perjury. He could no longer claim his Fifth Amendment privilege because there was not a threat of criminal repercussions (since Castor made a public decision not to prosecute). It was because of Castor’s public statements and commitment not to prosecute that Cosby’s lawyers advised him to tell the truth (albeit a very incriminating truth) during his civil depositions.
Years later, Castor was succeeded by a new District Attorney, Kevin Steele, and dozens of other women came forward citing similar claims against Cosby. Steele filed criminal charges, arguing that his predecessor’s decision not to prosecute Cosby was not binding against the state of Pennsylvania. While the Pennsylvania Supreme Court justices differed as to whether Steele needed to adhere to Castor’s prior decision, they all agreed that the civil deposition testimony provided by Cosby should not have been presented in his criminal trial.
In summary, Cosby (and his attorneys) trusted the District Attorney’s word that Cosby would not be prosecuted, providing honest yet inculpatory testimony that was then used against him. According to the Pennsylvania Supreme Court, to allow this type of behavior would essentially negate every defendant’s Fifth Amendment rights.
What the Pennsylvania Supreme Court’s Decision Means
First and foremost, Cosby’s release does not mean that the state of Pennsylvania, or the public at large, suddenly find Cosby innocent of the allegations made by dozens of women. This is a unique case that highlights the major differences between civil and criminal litigation, a distinction that is rarely explained in popular media.
Put simply, an accuser has greater control over a civil lawsuit, and it can be easier to show the defendant committed the abuse alleged. Criminal cases revolve around whether a defendant is guilty and whether they should face sanctions such as imprisonment, fines, or probation. Criminal cases are considered a crime against the state, and the prosecution must prove guilt beyond a reasonable doubt. The accuser does not have a say in the direction of a criminal case, as they are only a witness.
Civil cases, on the other hand, provide an accuser much more control over the direction of a lawsuit. In a civil case, the accuser sues the individual who harmed them (the “respondent”) and they only need to establish that it is more likely than not the respondent committed the wrongful act. If a civil jury thinks there is a 51% chance the respondent wronged their accuser, the accuser will prevail. Legally speaking, this is an easier standard to meet than that required in criminal lawsuits.
At the time Constand filed a report in 2005, the Pennsylvania prosecutor did not feel the state could prove that Cosby was guilty beyond a reasonable doubt. The prosecutor admitted that Constand likely had a better chance of success in a civil lawsuit. Through the civil lawsuit, Constand was afforded greater control over the outcome of her case and was awarded more than $3 million in damages. While money is far from the only objective in cases of sexual assault, Constand would not have been awarded damages for pain and suffering from a criminal lawsuit.
Does the Cosby Outcome Defeat the Purpose of Sexual Assault Lawsuits?
It is admittedly difficult to see Cosby released when so many victims corroborated acts of assault at Cosby’s hands. Yet, constitutional protections, like the Fifth Amendment, exist for a reason. Cosby’s case is likely unique but teaches us many lessons.
The Pennsylvania Supreme Court protected constitutional rights, even though it was for an unpopular defendant. And still, we feel that the movement is not set aback. Mistakes were made in a case that was one of the first of its kind. Unique challenges arose that will inform attorneys and victims alike in the coming years.
Cosby was not acquitted, his legacy is forever tarnished, he spent nearly three years behind bars, and his accusers were not discredited. His case will leave a lasting mark on U.S. legal history and moves us forward in the pursuit of equal justice.
It was a monumental step forward for the #MeToo movement – prompting dozens of women to come forward, even when they realized their case was beyond the statute of limitations (but still worth sharing).
Experienced Civil Litigators Can Help with Sexual Assault and Rape Allegations
The attorneys at Jackson Spencer Law have decades of civil litigation experience. We believe victims of sexual assault deserve justice, even if prosecutors are unable to secure a conviction in criminal court. If you have been harassed, assaulted, or violated in the workplace, we can help you develop a winning legal strategy. Contact our office to schedule a free, no-obligation consultation.