Why Cosby Accusers Did Not Cry Rape Sooner

25 November 2014
Published in Blog

By Seema Iyer, Esq.

November 26, 2014

Why did it take many of those accusing Bill Cosby of sexual assault so long to come forward? This is a question I have heard from various people, even some in the media. It is clear to me that the people asking that question have no idea about what happens in the real world with these types of cases, as opposed to what they may see on "Law & Order."

The reality is that the great majority of sexual assault victims do not go to the police right away. Why? Well, many victims feel like they won’t be believed. They think ‘people will believe him over me.’ In fact, as has been proven, they often feel powerless unless standing alongside other victims facing the same offender. And what if the person who violated you was “America’s Dad”? Forget it. You would never tell.

So when Bill Cosby’s attorney, Marty Singer, said last week that “it is completely illogical that so many people would have said nothing, done nothing, and made no reports to law enforcement….” Well, Marty needs a swift kick in the head. If anyone knows that sexual assault victims are more likely not to report, it’s us. Especially when the assailant is not a stranger.

According to RAINN (Rape, Abuse and Incest National Network), two-thirds of sexual assaults are committed by someone known to the victim which makes sense considering 60% are not reported to the police.

Not only is lack of reporting a consideration, but also delayed reporting which seems to be a part of the national conversation with respect to Mr. Cosby. When the victim and the assailant are known to each other, the victim rarely makes a timely complaint. The current law makes allowances for that.  

“Outcry testimony,” an exception to the hearsay rule, not only permits a victim to testify at trial as to when she disclosed, but the person to whom she disclosed would testify. Additionally, a psychologist is permitted to testify to explain to the jury that the failure to file timely charges is symptomatic of Rape Trauma Syndrome (a form of Post-Traumatic Stress Disorder). The ‘outcry’ law has certainly evolved from its medieval origins when “a virgin has been so deflowered and overpowered….while the act is fresh she ought to repair with hue and cry to the neighboring villages and there display to honest men the injury done to her.” Yikes…….

Evidence of outcry, whether it took place five days or 15 years ago, is compelling to juries; it adds credence to a story void of accompaniment. Perhaps there is no physical evidence, no DNA, no witnesses. But when you ‘tell’ it has profound meaning.

And by the way, people don’t rape people in front of other people!!! OF COURSE there are never ever (rarely) eyewitnesses.

Thus far there are approximately 18 Cosby accusers with incidents occurring between 1965 and 2004. Let’s look at that timeline. Twelve of Cosby’s accusers claim the events took place between the 1960s and the early 1980s. State rape shield laws only began to take effect in the late 1970s to early 1980s.  The federal rape shield law, the Violence Against Women Act, wasn’t created until 1994. These laws protect the victim from limited cross-examination into their sexual history. Incredibly relevant because during the time periods in question, the women had a heightened fear of coming forward knowing their past would be dissected. Slut-shame, blame-game – you pick the term. It still, at times, applies today and it always applied back then.

Is Cosby off the hook? Many reports indicate the statute of limitations has passed on both criminal and civil actions. Not necessarily the case. Every state has a different civil statute of limitation. As for criminal charges it gets confusing. Most of the incidents occurred in New York and California. In New York, rape in the 1st degree, along with its heinous counterparts, do not carry a statute of limitations whereas lesser degrees of rape and other types of sexual assault have a five year limit. In California, most sex crimes have a 5 to 10 year limit to initiate proceedings.

Other assaults also allegedly took place in Pennsylvania and Nevada. Noteworthy is that New York, California and Pennsylvania each have DNA exceptions. Meaning, if DNA connects the crime to a perpetrator, but is not discovered until a later date, the statute of limitations clock starts to run only when the DNA identification is made.

There doesn’t seem to be any DNA evidence in any of the Cosby cases, and identification was never an issue, but it does demonstrate how far we have come in terms of prosecuting these crimes. Recall the day when prostitutes simply could not be classified as rape victims? (Approximately 75% of prostitutes are raped during prostitution.)

Bill Cosby came closest to arrest in 2005, however; the Montgomery County, Pennsylvania prosecutor failed to file charges. He believed Cosby committed a crime but did not think there was enough evidence. The prosecutor, Bruce Castor, had a problem with the victim’s delayed outcry because toxicology and DNA were foregone conclusions. Fine. But he still should have presented the case to a Grand Jury. Untimely outcry was largely accepted in 2005.

There was certainly probable cause to arrest. There was enough evidence to indict. And with an indictment the investigation would have undoubtedly uncovered corroboration. The victim was Andrea Costand who filed a civil lawsuit against Cosby that settled. In that suit, Costand armed herself with 13 other Cosby accusers who were prepared to testify against him. Doesn’t sound like there was “insufficient, admissible and reliable evidence upon which to base a conviction beyond a reasonable doubt” as you mentioned Mr. Castor. Doesn’t sound like “there’s just not enough [here] to prosecute.”

It sounds like the reason 97% of rapists never spend a day in jail. It sounds like failure.

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Seema Iyer is a criminal defense & civil rights attorney with her own lawfirm in NYC.  Seema appears frequently on MSNBC, HLN, FOX and CNN as a legal analyst. Follow her on Twitter @seemaiyeresq

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Why Didn't We Believe Cosby's Accusers Sooner?

21 November 2014
Published in Blog

By Dean Obeidallah

November 21, 2014

The court of public opinion appears to have finally found Bill Cosby guilty of sexual misconduct.  I’m not saying that everyone believes every charge being leveled, but it seems clear that from social media, news coverage, etc., that most believe that Cosby did something horribly wrong with several women.

Even the entrainment industry that Cosby has made so much money for is cutting their ties to him-at least for now. NBC has pulled the plug on a sitcom they were developing to star Cosby. Netflix has shelved Cosby's new stand up special that was slated to premier next week. And Nick at Night has pulled reruns of “The Cosby Show” from its line up.

But here’s the thing: The allegations we are hearing now that Cosby drugged, molested or raped various women, for the most part, were revealed to the public years ago. Yet despite this information being known, NBC had no qualms entering into a new TV deal with Cosby, Netflix happily offered Cosby a brand new comedy special, and Nick at Nite still thought nothing of airing "Cosby Show" reruns. 

Plus fans were still buying tickets to his shows, including to a sold out show Thursday night, which surreally was a benefit for a women's organization. Adding to the bizarreness, while on stage, Cosby dedicated the show to his wife, yet he made no mention of the claims against him.

It’s not like the claims of these women against Cosby didn’t receive national media coverage. As quick refresher, there was Andrea Constand, a former Temple University employee, who alleged that Cosby drugged and sexually assaulted her in his Philadelphia area mansion in 2004.

Despite the prosecutor’s decision not to indict Cosby, (It’s very challenging to secure a criminal conviction without more evidence than just one person’s word against another), Constand didn't simply go away. She filed a civil lawsuit in 2005 that included the claim that 13 other women, identified as “Jane Doe” to protect their identity, were prepared to testify at trial that Cosby had sexually assaulted them as well.  Cosby settled the case in 2006 by paying Constand an undisclosed amount.

Inspired by Constand, Barbara Bowman, one of 13 “Jane Does,” went public in 2006 with her claim that Cosby had drugged and raped her in the mid- 1980’s. Bowman's story, covered at the time by People magazine and the like, was that when she was an 18-year-old aspiring actress, Cosby had slipped drugs into her drink. The next thing she could recall was that she was undressed, wearing only a men’s white shirt and Cosby was in a robe.

Then there was Tamara Green, now an attorney, who came forward in 2005 after Constand went public with her claims. Green appeared on NBC’s “The Today Show” where she told Matt Lauer that Cosby attacked her in the 1970’s when she was an aspiring model. Green asserted that Cosby had put something in her drink and then tried to molest her.

And model, now reality show star Janice Dickinson, appeared on Howard Stern’s radio show in 2006 and said Cosby is “a bad guy, he's not a nice guy. He preys on women who just came out of rehab."  She refused to offer more details at the time, noting that she didn’t have the "shekels" of Cosby to fight a legal battle with him. (Dickinson finally revealed the details of the incident this week saying that in 1982 Cosby had drugged and raped her.)

Again all of these cases received national media coverage, however, there was no uproar like we see today.  

Is it because there was no social media back then? Was it because we liked Bill Cosby too much to believe he could commit such unthinkable acts?  

Or is it deeper? Is it because we live in a society where when three or even four women assert allegations of sexual misconduct it still is not sufficient to cause people to take the claims seriously? That’s likely why Dickinson and the numerous other women who have recently come forward to reveal similar incidents with Cosby didn’t go public until now. They, too, sensed that the public, media and entertainment industry could care less.

And maybe worse, these women felt that by taking on a beloved star like Cosby, they would be the ones attacked. We would hear them called gold-diggers, they would be “slut shamed” or asked why they didn’t fight back enough?

Even removing Cosby’s fame from this equation, many women have the same concerns causing them not reporting sexual attacks to the police. Yet still the number of women who have reported being sexually assaulted in the United States is simply staggering. The CDC reports that nearly 1 in 5 women have been raped or experienced a rape attempt at one time in their lives.

So next time you’re in a public place, look around for a moment and realize that it's likely that for every five women in that location, one has been sexually assaulted. That’s how jaw-droppingly high this number is.

It's unlikely that the women who suffered at the hands of Cosby will ever see true justice. But hopefully their stories will make us more believing when other women come forward in the future alleging sexual assault. Perhaps that will save some women – perhaps even your daughter or sister - from the same fate.

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Dean Obeidallah is the editor of The Dean's Report. He is also is a former lawyer, turned political comedian/writer and a columnist for The Daily Beast.  He co-directed the recently released comedy documentary "The Muslims Are Coming!"  You can follow Dean on Twitter

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