For Bill Cosby SOL has more than one meaning

For Bill Cosby SOL has more than one meaning

          I admit it. I am an unabashed Bill Cosby fan, and have been for a very long time. At the risk of dating myself both time-wise and terms-wise, one of my first purchases was his 1968 LP "To Russell, My Brother, Whom I Slept With."  At an even younger age, I watched, but didn't really understand, his early foray into dramatic television via a starring role in the 1965 espionage series " I Spy," along with co-star Robert Culp. I could watch  his Jello Pudding Pop commercial 100x and still guffaw over his facial expressions, and was eternally amused by his joyful  gibberish (to this day, I don't know what he was saying) that served as a lead-in to his  late sixties solo comedy series "The Bill Cosby Show."  His Iconic Fat Albert's "Hey, hey, hey" is an embedded piece of  any compendium of comedic soundtrack from my youth and even as a full-grown adult, I confess to sometimes hurrying home from my job as an Assistant DA in  Manhattan in the early mid-80s in order to relax and unwind watching another feel-good episode of the Huxtable Family chronicles and his #1 rated series "the Cosby Show." Like so many Americans, my heart went out to him when his beloved son Ennis was the innocent victim of a senseless and brutal homicide, and like many a Bay-Stater, I felt a deeper affinity towards him for his choice to reside in Western, MA and his earlier decision to receive a doctorate (in Education) from our state university.  It's almost as though, in many different ways, Bill Cosby has been a part of my life, or at least my consciousness, for many years. So what then to make of the allegations of sexual assault and rape and drugging that are being brought forward against one of my here-to-fore favorite entertainers?  Can we believe them; can they be true?

          As a longtime criminal defense attorney who specializes in defending against accusations and charges alleging sexual assault and rape and abuse, it's not only my nature to be skeptical about them, but also my job. Of course rape happens; it happens a lot. As a father of two adult daughters, and as a former rape, drug, and homicide prosecutor, I don't just know this instinctively, I know it professionally. At the same time, and with deference and respect to dedicated sex crimes and victims' advocates everywhere, I also know that alleged rape and sex assault victims can, and do, lie for a  wide variety of reasons—not the least of which arise when the subject is a deep-pocketed and highly successful public figure or celebrity. While I can't say I have yet defended false rape charges made against persons in this precise category, I can tell you that I am  invariably contacted as a high-end criminal defense attorney half a dozen  times each year by some "poor" well-to-do sap, or better-stated "mark," who was foolish, or desperate, enough to use one of these notoriously named websites like sugardaddie.com  or  seekingarrangement.com (or any of the multitude of similar sites that come up after simple Google search) to meet and "date" younger, single woman. You'd think men so successful as to match the sites' categorical description would know better (I mean, what could go wrong?), but then that assumes they were thinking at all. Invariably, they call me in a panic after Mindy or Mandy or any pseudonymed escort has called them after several dates with a thinly veiled shake-down for subsidies/payments or "I will go to the police [and report that you raped me]." Sometimes they do, sometimes they don't, but, boy, does it happen a lot, which explains my expanded repertoire of accused rape clients as well as my initial reactions to the first few of the Cosby allegations.

            One, two, allowing for copy-cat and high profile celebrity (and representation by high profile agenda-driven civil lawyers like Gloria Allred), three, maybe four.  But twenty-three? Twenty-three women, twenty of whom allege some form of sexual assault/impropriety, over a span of thirty-nine years (from 1965-2004) in a total of six (CA, IL, NV, CO, PA, NY) different states! Those are eye-popping statistics, which are tough to ignore and even tougher to dismiss, even for a professional skeptic like me who is paid big bucks to expose lies and suggest hidden-agendas in sex crimes cases in courtrooms and before sitting juries all over the United States. Is it really plausible that all these women would lie; besmirch someone's career; engage in a cabal; raise intimate and embarrassing details from their own past that many may have once felt were better left forgotten?  Twenty-three; and the similarity in modus operandi?  Fourteen of the twenty-three claim to have been drugged in similar fashion, in disturbingly similar circumstances, despite no as yet revealed prior acquaintance and relationship between them. Moreover, a number like Beth Ferrier admit they really don't know what happened: "I woke up in my car in the parking lot with my clothes all a mess...I wondered. I still wonder. What did he do to me?" As much as it goes against my professional instincts; sorry, statements like those, in my extensive experience from both sides of the sex crimes dialectic (former prosecutor; current defense attorney) have the ring of truth for me.  Be that as it may, what about the five women who have been definitive in claiming they were raped by Bill Cosby, and a sixth who claims to have been indecently assaulted by him at the Playboy Mansion when she was an under-aged 15?  Why aren't the authorities already pursuing charges for these?

            There may be myriad reasons from lack of evidence, to lack of witnesses (but in rape cases there usually aren't), to lack of clarity, to passage of time; but the simple response for the majority of these allegations is "because they can't."  In each case, and each allegation, prosecuting authorities are time-barred from doing so by something called the Statute of Limitation (SOL), which requires prosecutors to bring charges with in a specific time-frame from the date of the alleged incident, or in cases involving sex crimes against minor victims, a combination of the date when the offense is alleged to have occurred and when the alleged victim reaches the age of consent. about the effect and application of the SOL in the case against former Penn State Defensive Coordinator Jerry Sanduski. But essentially, the SOL for prosecuting sex crimes varies from state to state. Here in Massachusetts, where so far no victim has come forward, the statute of limitations for rape is 15 years, though in cases alleging rape of a child under 16, there is no SOL, but any indictment or complaint found and filed more than 27 years after the date of commission of such offense must be supported by independent evidence that corroborates the victim’s allegation. (As an aside, the penalty for drugging to enable sexual intercourse in MA is a mandatory minimum 10 years to life in state prison, pursuant to MGL ch. 272 § 3).

           But what about those states where women claim to have been raped or abused by Cosby? In California, the SOL for rape is 6-10 years from the date of the alleged incident, but there is a DNA exception.  (A DNA exception allows for the tolling, i.e. delaying/suspending, of a SOL in cases where a perpetrator is later identified through DNA evidence). Sexual assaults against a minor may be brought after any amount of time, until the alleged victim turns 28. (Judy Huth, the woman who claims Cosby sexually assaulted her at the Playboy Mansion in LA when she was 15, turned 28 in 1987.) In Illinois, where there is also a DNA exception, the SOL is 10 years, so long as the alleged victim reported the offense to law enforcement within three years of it happening. In Nevada, there is no SOL, but only so long as an actual report was filed with law enforcement within 4 years of the incident. (Although Andrea Constad sued Cosby civilly for drugging her—and discovering her bra undone and clothes in disarray—that incident allegedly occurred in PA. None of the 23 women purportedly filed police reports.)  In Colorado, also a DNA exception state, the SOL for sexually assaulting an adult is 10 years; there is none for sexually assaulting a child under 15. In Pennsylvania, the SOL for rape and sexual assault against an adult is 12 years; for a minor victim, it's until the minor victim turns 50.  In NY, there is no SOL for 1st degree sexual assault.

          So why hasn't/isn't Cosby charged with offenses involving the five alleged incidents that occurred in NY? Well, in one alleged NY drugging incident the victim simply says "I realized something sexual was going on; but was unable to stop it;" which is not specific enough to prove 1st degree sexual assault, let alone probably any degree of sexual assault. In another, all the victim recalls is waking up in a T-shirt "that wasn't mine" and throwing up. The third NY victim alleges Cosby, wearing a loose robe in a dressing room at a NY studio, put his crotch in her face; also not 1st degree sexual assault. The fourth only recalls drinking a cup a cappuccino and knowing she was drugged. It is the last NY victim, Louisa Moritz, who could potentially cause Cosby criminal problems, but all she has said is he paid her a visit in the Green Room at the Tonight Show in NY and "forced himself on her." An experienced sex crimes defense attorney like me would have a field day with that allegation, given how non-specific she's been about the details, the fact she hasn't alleged a general date or time, the fact the incident supposedly happened in a semi-public venue, the extremely long and attenuated delay in reporting (possibly nearly 40 years), and the strong amenability of the facts and circumstances of the allegation to an affirmative defense of consent, if any defense needs to be asserted. So in my professional opinion, unless new alleged victims come forward, or some of the hazy details from the NY incident get sharper (Another field day for a defense attorney like me!), it looks like that while Bill Cosby's reputation will take a big hit from all this, he will avoid criminal prosecution and remain a free man. (Civil suits involving monetary damages for intentional torts of rape or sexual abuse or assault and battery, false imprisonment and intentional infliction of emotional distress generally have a SOL of 2 years.)

          Inevitably I am asked is this really fair?   Should Bill Cosby, or anyone, "get off" because of the passage of time or the expiration of the Statute of Limitations?  Alternatively, in my job as a criminal defense attorney, I am  asked why, here in Massachusetts, we don't eliminate the SOL for rape case altogether, the way all 50 states have for murder, especially when we know rape victims can suffer rape trauma and emotional distress for years, if not the rest of their lives?  My answer, as someone who opposes eliminating the statute of limitations for sex crimes and rape, is that murder and rape allegations are different. In murder cases, it is inarguable the victim has no motive to lie.  It is also inarguable the victim has died. Moreover, sex crimes and rape cases are often "he said/she said" propositions. (Even when the evidence doesn't start out that way, the goal of an experienced rape and sex crimes defense attorney like me is to try to be sure it ends up that way, before it gets to the jury.) Imagine then, being accused of a crime of so heinous a nature, with such significant and life-altering jeopardy, that supposedly happened ten or twelve or fifteen or twenty or even thirty years ago, and usually then in "general time frame terms," and trying to defend against it. For those who sometimes have a hard time remembering what they did six hours ago let alone six days, the task is all but nigh impossible. Factor in a touring, world-wide celebrity like Bill Cosby with a whirl-wind schedule and hundreds, if not thousands of personal contacts daily and trying to defend allegations (which could well be false) in terms of alibi, or witnesses, or simple impossibility virtually can't be done.  We don't do trial by ambush   in America. We don't convict on the basis of surprise.  We require defendants receive sufficient notice of means, manner, time and place. Allegations must be supported by evidence and evidence must be supported by truth. In cases involving allegations of rape the time lapse in reporting is often not only helpful but the determining factor in evaluating the truth.  In the end, I have no idea how many, if any at all, of Cosby's alleged 23 victims are telling the truth. I do know all of them had ample time and opportunity to come forward—more so in the case of the one alleged minor who waited another 27 years after the statute had run as to her. There are no allegations of threats or intimidation.  For whatever reason the 23 made 23 separate choices not to come forward within the time they could have.  If guilty of any accusation, Bill Cosby still has to live with the choices he made regarding the same.  Statutes of Limitations exist to assure he won't be after-the-fact, and unfairly, prosecuted for choice(s) made by the 23 not to come forward until now.

About the author:

 

Brad Bailey was a felony prosecutor in Manhattan (NY) and an Assistant District Attorney in Middlesex County (MA) where he prosecuted murders, sex crimes and serious narcotics trafficking cases.  He went on to prosecute federal drug crimes and the mafia/organized crime as an Assistant U.S. Attorney for the U.S. Attorney's Office in Boston.  A five time Super Lawyer and Top 100 Trial Attorney, he is AV rated by Martindale, "10.0 Superb" rated by Avvo, and rated by Lead Counsel for verified experience, peer recommendations and a spotless record.  Brad has been a member of the defense bar since 1999, and uses his vast experience on both sides of the law to defend clients accused of rape, sexual assault, and child sexual abuse everywhere in Massachusetts, throughout New England, and elsewhere in the United States.
Website: bradbaileylaw.com