Bill Cosby was arrested and arraigned on December 30, 2015 for allegedly
sexually assaulting a woman in his home in Montgomery County, Pennsylvania
in 2004. The arrest comes just days before the 12-year statute of limitation
was set to expire for the crime. This case represents probably the only
criminal prosecution that Bill Cosby is likely to ever face, despite the
dozens of women that have come forward in the past fourteen months to
claim that they were sexually assaulted by the famous actor/comedian.
The complainant, Andrea Constand (she has chosen to public identify herself),
is a Canadian and former Temple University basketball player. In 2004,
she was a Temple University employee that had sought out Bill Cosby’s
mentorship. He allegedly made a couple of sexual advance on Ms. Constand
that were rejected; indeed, it has been asserted that Ms. Constant is
gay and was in a relationship with a woman at that time. Eventually, Ms.
Constand went to Mr. Cosby’s home in Montgomery County, PA, and
there, it is alleged that he gave her what he claimed were “herbal
pills” that caused her to become incapacitated. Then, he allegedly
sexually assaulted her.
Ms. Constand complained to a prosecutor in the ensuing year, but the prosecutor
declined to press charges against Mr. Cosby, citing, among other things,
that her accounts of the incident were allegedly inconsistent. Ms. Constand
subsequently sued Mr. Cosby in civil court, and the matter eventually
settled for an undisclosed amount.
A comedian, Hannibal Burress, reignited discussion about Mr. Cosby’s
alleged crimes against a number of women by making a notorious joke in
a stand-up routine a little over a year ago. Seemingly, that joke and
the discussion it stimulated caused dozens of women to come forward and
accuse Mr. Cosby of having raped them over the course of the past decades
in manners similar to the one alleged by Ms. Constand. A variety of civil
lawsuits are currently pending relating to those accusations, some of
which focus on allegedly defamatory statements made by the complainants
and Mr. Cosby himself about those complainants.
Moreover, the transcript of Mr. Cosby’s sworn deposition taken in
connection with the Constand lawsuit was unsealed by a judge in Pennsylvania,
over the strong objections of his attorneys. The deposition contained
highly damaging and incriminating testimony from Mr. Cosby, who voluntarily
disclosed that he obtained prescriptions for quaaludes for the purpose
of giving them to women for sexual purposes, and also that he had indeed
had sexual contact with Ms. Constand. Mr. Cosby quizzically asserted that
during his sexual interaction with Ms. Constand he had been operating
in the area between “permission and rejection” because, basically,
Ms. Constand had never told him to stop touching her sexually.
During the past year, the Montgomery County prosecutor faced an opponent
in the election that castigated him for not having prosecuted Bill Cosby
in 2005. This candidate promised to prosecute Bill Cosby; interestingly,
so did the incumbent that initially declined to prosecute him in 2005.
Not surprisingly, the challenger won the election; seemingly, the incumbent’s
failure to prosecute Bill Cosby in 2005 cost him his job.
Now, it seems that the newly-elected prosecutor has delivered on his promise
to prosecute Bill Cosby for the alleged assault of Ms. Constand. The question
now becomes: can he deliver a conviction?
Every prosecution for rape is difficult to win, but this is especially
so where there are no “external” eyewitnesses or forensic
evidence (such as medical evidence of physical injuries or intoxication),
as is the case here. The evidence that clearly will be presented to the
jury at trial includes the testimony of Ms. Constand, any “prompt
outcry witnesses” that might exist, and the incriminating aspects
of Mr. Cosby’s civil deposition testimony. The big question for
this case is whether the other purported victims of Mr. Cosby will be
allowed to testify at the trial. Clearly, if a parade of women are permitted
to testify that they were assaulted in the same manner as Mr. Constand,
then Mr. Cosby’s chances of spending the remainder of his life in
a jail cell are going to increase exponentially.
Those other witnesses are probably not going to be permitted to testify,
however. Generally, evidence of a “criminal propensity” to
commit a particular act is not permitted at a criminal trial, as it is
considered too prejudicial. In some cases, “modus operandus”
testimony is permitted, if the method of the commission of the crime is
particularly unique to the accused individual. However, this modus operandus
evidence (which might include the testimony of other victims similarly
assaulted) is generally only permissible to prove the identity of the
perpetrator of the crime at issue, and here, no one is denying that Mr.
Cosby had sexual contact with Ms. Constand. As such, this evidence probably
doesn’t get introduced on the prosecution’s direct case. That
being said, the decision will lie in the discretion of the trial judge.
However, Mr. Cosby and his attorneys will have to be careful not to “open
the door” to this evidence of the other alleged assaults. Should
Mr. Cosby claim that he would never give someone quaaludes against their
will, or that he is a man that respects women and would never violate
one, then he might give the judge a reason to allow the other women to
testify to rebut those claims about his character. This puts him in a
difficult position, because it is going to be hard for him to explain
or defend his comments in his deposition about quaaludes without taking
the stand personally and exposing himself to making this sort of devastating mistake.
Of course, Mr. Cosby’s other huge problem is that the people likely
to be on the jury have probably already heard of the other victims through
the media. The jury will be instructed by the judge not to consider anything
that they have heard in the media in making their decision as to guilt
or innocence, but one has to be skeptical that ordinary people can realistically
ignore that instruction. After all, the prosecutor was elected by Montgomery
County voters by promising to prosecute Bill Cosby – this suggests
that those voters (now the potential jurors) have already formed an opinion
on this case and want to see Mr. Cosby convicted.
The defense will have to argue that Ms. Constand has fabricated these allegations
to further some personal agenda. This is going to be challenging given
that she has already settled her civil case – after all, she has
no obvious financial incentive to continue to be involved in this case
at this point. To the contrary, she now has to be subjected to intense
and violating media scrutiny to further this prosecution.
The defense will also of course argue that the sexual encounter was consensual,
by pointing out that Mr. Cosby had clearly previously shown a sexual interest
in her and yet she voluntarily went to his mansion alone and drank wine
with him. They’ll also argue that if Ms. Constand was capable of
seeing Mr. Cosby “sexually assaulting” her then she was also
capable of saying no or resisting his advances. I expect that there will
be medical testimony during the trial as to the possible effects of quaaludes
on a person’s physical state and consciousness – by experts
from both sides – to assist the jury in understanding this question.
Another interesting aspect of this case concerns the expectations of consent.
Cosby, in his deposition, seems to reveal his perception that his sexual
contact with Mr. Constand was acceptable because she never said no after
he made sexual advances. Of course, there are many people that would assert
that a women has to say yes before contact can occur, and not the other
way around (as apparently espoused by Cosby). The law in Pennsylvania
is not 100% clear on this point; as such, this case is potentially something
of a referendum on how strictly liable a person must be held for failing
to get “affirmative consent” for sexual contact. (Of course,
if the jury concludes that Mr. Cosby intentionally drugged Ms. Constand
against her knowledge so as to gain her consent or incapacitate her, then
he’s going to be found guilty.) Plainly put, it’s possible
that Mr. Cosby’s deposition admission that he never got her affirmative
consent for sexual contact could get him convicted, period, but this depends
on what the jury is instructed by the judge regarding the nature of consent,
or what they conclude counts as necessary for consent.
The defense will argue vehemently that this prosecution is a politically-motivated
lynching. They’ll point out that the original prosecutor –
who was not facing widespread public media pressure – initially
concluded that there was insufficient evidence to arrest Mr. Cosby. The
new prosecutor, they’ll argue, promised Cosby’s scalp and
is pursuing this case not in the interests of justice but to further his
own career ambitions. This argument might have some traction with some
jurors, but one must also acknowledge that the promise of a prosecution
of Mr. Cosby seemed politically popular enough to get this new prosecutor
There was a delay in the reporting of this case, which is a common issue
in rape prosecutions. It is unsurprising that many rape victims need time
to process the trauma that they have experienced and consider the pros
and cons of engaging themselves with the intimidating criminal justice
system. However, defense attorneys exploit these delays as evidence that
a complainant has carefully weighed her options and concluded that s/he
stands to gain (financially or otherwise) by making a false complaint.
Here, Ms. Constand did not report the case to the police the next morning,
but I expect that we might have some testimony that she told a close friend
or family member shortly after the incident. Moreover, her persistence
in pursuing this matter even after a civil settlement was reached would
tend to suggest that her motivations are sincere.
Some jurors are just uncomfortable convicting a person in a “he-said-she-said”
scenario, and Mr. Cosby’s lawyers are going to have to find jurors
that they suspect fit that description. Ever since TV shows like CSI started
offering up fictional tales of devastating and brilliant forensic evidence,
some jurors have come to expect it in every case. There’s not going
to be any forensic experts testifying about trace amounts of quaaludes
in Ms. Constand’s system or DNA/injuries found on her body, and
some jurors might get nervous about convicting a person without scientific
proof of Ms. Cosby’s guilt. This is the case in almost every rape
prosecution, unfortunately, as these crimes almost always happen between
closed doors without additional witnesses and forensic medical evidence
is typically not collected in time from the victim’s body to be
In conclusion, I’m expecting a very interesting trial. One wonders
whether the defense will choose a bench trial, in the hopes that a judge
will be better able to put aside considerations of the media reports of
other victims than would a jury (on the flip side, a judge would be under
more political pressure than a jury not to make an unpopular decision).
If I had to handicap the outcome, I think that a hung jury (mistrial)
might be the best that Cosby can expect to do here, meaning that I think
it is unlikely that he can convince the entire jury of his innocence in
light of the negative and widespread public perceptions of him as a sexual
predator. But I think it’s entirely possible that he is able to
convince a few jurors of his innocence – enough to prevent him from
being convicted anyway. However, this prediction rests entirely upon the
assumption that the other purported victims are not permitted to testify
at trial. If some of those other victims are allowed to testify then I
think the scales tip heavily in favor of the prosecution.
The author of this article, Matthew Galluzzo, is a criminal defense attorney
and former Manhattan sex crimes prosecutor. He has commented on this case
for Reuters, HuffPo, Fox News, NPR, WURD (Philadelphia), the Canadian
Broadcasting Company (CBC), and 98.5 FM (Montreal), among others. His
opinions on sex crimes investigations have been published in other media
sources including the New York Times, New York Daily News, BBC, CBS, the
Associated Press, and dozens of other international sources.