With the latest revelations about Bill Cosby arising out of a deposition in a civil lawsuit from a decade ago, the country is talking about sexual assault, celebrity, and what to do about the problem. This is an important conversation.
With dozens of women having come forward alleging that Cosby drugged them and then sexually assaulted them, and some like Janice Dickinson and several others suing for defamation after he denied their allegations, there are few people left who are actively defending Cosby. There are some die-hards like Whoopi Goldberg, but for those familiar with patterns of sex abuse and assault, this story line is all too familiar.
The American instinct is to hear this most recent information and immediately ask about criminal charges. We believe in putting things right through the law. Sadly, just as with so many child sex abuse victims, though, the vast majority of these sex assault victims are cut out of that system by statutes of limitations that favor predators rather than the vulnerable, as I discuss here. But the statutes of limitations are just one part of the story.
Why Are There So Many Secrets About Sexual Assault?
Rape shield laws have protected the identities of victims, but the identities of perpetrators have also been kept beneath the radar through a combination of factors.
First, as mentioned above, the statutes of limitations often favor the predator over the victim. That keeps claims out of court, which is the most reliable pathway to public disclosure.
Second, prosecutors have prosecutorial discretion. They cannot possibly charge every sexual predator brought to their attention. They need evidence beyond a reasonable doubt, as well as corroborating evidence, and they have necessary discretion to reject cases that are likely to be losers in court (even if they completely believe the victim(s)).
Third, these crimes are fraught with humiliation and shame, sometimes leading survivors to choose to not press charges or to keep civil proceedings in the dark. It is not that they want to keep the identity of the predator secret as much as they don’t want their own identity released, or they are not in a place of strength to handle public disclosure.
Fourth, until relatively recently, judges and lawyers often believed that these were singular cases and that a perpetrator might well only assault one victim. The phenomenon of serial predation is a relatively new arena for study and public education. If the rapists weren’t likely to do it again, there was little need to publicly disclose their identities. Now we know differently, but the instinct to secrecy on these issues dies hard.
Enter the new information on Cosby arising out of his deposition in a civil case ten years ago. How is it that so many women could accuse Cosby, but this near-confession was suppressed for 10 years? The answer is that courts too often seal records in sex abuse and assault cases to help the powerful, whether it be a religious or nonprofit institution or a celebrity.
Another Frontier in the Fight Against Sexual Assault: Sealed Admissions in Civil Cases
These latest revelations raise a new topic of discourse in the war against sex assault: the sealing of court records. The only reason the world knows that Cosby made this damning admission is because the Associated Press sought the records. There was a confidential settlement agreement binding the survivor, and therefore she could not reveal the information. For all those survivors out there who might be contemplating walking away from a confidential agreement to reveal their attacker to the world, think about that carefully, because you can be sued for breach of contract as well as asked to return any damages you received as part of the settlement. The survivor in this case was saved from that decision, because the AP stepped up and because the court’s hands were free to release the information under state law.
Thus, this is a relatively unusual case, because according to the court, the settlement agreement was not approved by the court, and therefore the court was under no obligation to keep it confidential. In addition, the law of the state permits sealed records to be released after two years if the court finds that there is a public purpose in the release; it did so find, citing the fact that Cosby is a “public moralist.”
Cosby’s lawyers argued that the records should not be released because they would cause embarrassment. That argument is what has kept so many admissions in the dark.
Few know how often courts are asked to seal the proceedings in sex assault and sex abuse cases. Religious entities, schools, and organizations that have been sued for sex abuse routinely ask to have the proceedings under seal. Why? Again, to avoid public embarrassment. And courts for decades have routinely granted such requests, reasoning that these are “private” crimes, that the public need not know, and out of deference to the powerful like celebrities, bishops, and politicians. Professional courtesy in a sense, I suppose, though it now seems like a deal with the devil.
Of course, we now know for a fact that the public does need to know who the sexual predators are. It is time for a victim-centered system wherein sealing of records relates solely to the needs of the victim, and where the risk of “embarrassment” to the defendant is presumed to be an inadequate reason to protect the powerful.
The Role of the Press
There was a time when the press, like the courts, nodded in silence as the powerful asked for anonymity when accused of horrific sex crimes. That day passed once the Boston Globe uncovered the cover up of abuse by Catholic bishops and the waterfall of information on abuse by the powerful and those in important institutions started flowing.
Had the Associated Press not pursued these records, Cosby’s admission would have remained mired in legal limbo. The press has played a critical role in revealing the sweep of sexual assault and abuse nationwide from the churches to the Boy Scouts to Penn State to Horace Mann and even, finally, families. It was the press that pushed the revelations about Josh Duggar to the surface, opening the door to justice for at least one of his victims.
So if you are wondering why you never knew that sex assault and abuse were so common, the answer is because we constructed a system that suppressed that knowledge. We are finally unpacking it, and the Cosby revelations wrung out of a released civil lawsuit deposition are another big step in the right direction.