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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