The Cosby Conviction Reversal Reveals a Faultline in Our Justice System for Sex Assault Victims: Unfairly Short Statutes of Limitation

Posted in: Injury Law

The Pennsylvania Supreme Court sent shockwaves through the sex assault survivor community when it let Bill Cosby off on a narrow technicality. Over 50 women have accused Cosby of assault, and the testimony at his second criminal trial sealed the truth: this man is a predator. A jury said so, because the evidence is overwhelming.

So why did the Pennsylvania Justices let him out? Because they said District Attorney Bruce Castor gave Cosby a deal that his successor couldn’t renege—a promise not to prosecute the charges brought by Andrea Constand in a press release, which then opened the door to Cosby being sued for civil damages. He settled for $3.4 million in that case and admitted to slipping Quaaludes to women to have sex with them, aka, to rape them.

The Pennsylvania Supreme Court’s majority held that Castor’s public promise not to prosecute was binding and that, therefore, Cosby never should have been prosecuted by Constand. His Fifth Amendment rights were infringed, they said, because he relied on Castor’s press release. The decision wasn’t unanimous for obvious reasons. Justices Wecht, Todd, Donohue, and Mundy were for the majority opinion. Justice Dougherty and Chief Justice Baer filed a concurring and dissenting opinion, agreeing that Cosby’s due process rights were infringed, but only after evidence was introduced in the criminal case that would not have been available if Castor had not induced Cosby into the civil depositions. Justice Saylor disagreed entirely with the majority’s decision, finding that Castor’s press release was not an unconditional promise to Cosby that he would never be prosecuted, while also noting concern with the trial court’s choice to introduce testimony from other asserted victims from 15-22 years ago. One also has to ask why the court felt it necessary to decide the issue at all.

This Decision Is Disturbing, Because No Other Victim Has Been Able to Press Charges

A central reason this decision is so disturbing is because no other women have been able to prosecute. The unfairly short statutes of limitation (SOL) for rape of a child or adult have played right into Cosby’s manipulative hands, leaving this one woman to pursue criminal justice. God bless her for pursuing him again and again, and for the other victims who testified at his second criminal trial. This is what the #MeToo movement should be all about: survivors corroborating each other and doing whatever they can to put the bad guys away and make them accountable. Unfortunately, this time, a sweetheart deal by a District Attorney paved the way for Cosby to be released. While the decision is a kick in the gut, it is unlikely to be repeated.

Let’s just be clear: any prosecutor who provides Castor-like cover for a perpetrator today is going to regret it if one more victim comes forward. Choosing to protect a powerful man from his crimes—when the facts are right there—turns a prosecutor into an aider and abettor. Alex Acosta, whose failures I discussed here, can speak to that reality.

In this case, the system went out of its way to ensure that there would be at least one criminal conviction for his repeated crimes. The reason for the finality here is unfairly short SOLs for rape across the country. The good news is that we know the solution: get rid of them.

SOL Reform for All Sex Assault Victims—Regardless of Age—Will Ensure This Never Happens Again

The country has been on a tear in the last several years opening SOLs and access to justice for child sex abuse victims in one state after another. The pace of progress has become more intense, as the irrefutable logic of SOL reform is setting the standard for justice, as you can see here.

The reform of criminal SOLs has led the way. At this point, 86% of states have no criminal SOL for at least the most egregious child sexual abuse crimes. The reasoning behind child sex abuse SOL reform has extended to adult victims—the toxic combination of trauma, shame, and humiliation keep many sex assault victims from coming forward, regardless of age—as states like Illinois, Maryland, and Wyoming have eliminated the SOL for all sex assault victims, regardless of age. The good news is that the world is getting better for victims now and in future.

It’s not as easy as it should be, though. We can’t revive expired criminal SOLs, according to the Supreme Court in Stogner v. California, so we can’t fix the fact that so many victims have been blocked from prosecuting their perpetrators. Yes, Cosby has won that game in the criminal context.

Yet, we can revive expired civil SOLs and give the victims their day in court, the public discovery they seek to vindicate their claims, and the trials for the truth. The end result of civil lawsuits is not that the perpetrator goes to jail, but at least he (and/or his enabling institutions) are forced to pay for what they did. That is justice, too. It also serves the public interest. The public needs to know who is dangerous and how they operated if we are going to begin to stop this epidemic and level the playing field.

The child sex abuse SOL reform movement has paved the way, and we now see its reasoning extending to those who deserve to receive justice whether they were assaulted as a child or an adult. The state to take the lead on the civil SOL revival movement for all sex assault victims is New Jersey, which opened a two-year window to justice for all child sexual abuse claims and for those sexually assaulted as adults. Until November 30, 2021, New Jersey sex abuse and assault victims will be able to bring a civil claim for abuse, regardless of when the abuse happened and regardless of how old the victim was when they were abused or assaulted.

I hope that survivors of sex assault won’t take this unfortunate, oddball case to heart. The world really is changing for the better for survivors, and the path forward is clear.

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