Let’s be clear about whose fault it is that longtime entertainer Bill Cosby will be freed from prison.
After facing public accusations from 60 women spanning decades, Cosby was finally found guilty, beyond a reasonable doubt, of aggravated sexual assault in 2018. Just three years later, the Pennsylvania Supreme Court has decided to let this serial offender walk, not on the substance of the evidence backing his conviction, but because of the procedure of the prosecution. The country is evidently and rightly livid, but its ire ought to be directed toward the prosecution that botched the case, not the court that simply had to rule on whether prosecutors followed the law.
Per his own admission, Cosby is an unrepentant serial predator. In a 2005 deposition during victim Andrea Constand’s first case against the disgraced comedian, he confessed that he regularly procured quaaludes from a gynecologist who knew that Cosby intended to use them not for himself, but to give to multiple young women he was pursuing sexually. Although Cosby insisted that any subsequent sexual contact was consensual, he did confess to penetrating Constand, an act she insists was an assault committed without her consent and while “paralyzed and completely helpless” thanks to the quaaludes. Even with the possibility of having time taken off of his 10-year sentence, Cosby refused to apologize.
In the court of public opinion, Cosby was clearly guilty by any common standard, and the court clearly found that he had inadvertently confessed to his own guilt. But how that confession of guilt was obtained and then used in his criminal trial is precisely why a guilty man will, quite legally, walk free.
During the initial criminal case investigating Constand’s allegation in 2005, then-Montgomery County District Attorney Bruce Castor believed that she would have better luck seeking justice in civil court, where the evidentiary standard is a mere preponderance of evidence, than criminal court, where guilt must be proven beyond a reasonable doubt for a conviction. As such, Castor brokered a non-prosecution deal with Cosby in exchange for his testimony, agreeing that he would render it admissible only in civil court, not criminal court.
It’s true that given the year elapsed between the alleged assault and Constand coming forward, material evidence would be lacking, making a conviction more difficult. But Castor’s other reasoning can be described, at best, as wildly ignorant of how sexual assault victims cope. At its worst, Castor appeared to be victim-blaming.
“As evidenced by the number of telephone calls that she recorded, Constand continued to talk with Cosby on the phone, and she also continued to meet with him in person after the incident,” the Pennsylvania Supreme Court decision read. “D.A. Castor found these recurring interactions between a complainant and an alleged perpetrator to be atypical.”
Furthermore, Castor said that Constand’s attempts to coax Cosby into an admission of guilt over clandestinely recorded phone calls “could be interpreted as attempts by Constand and her mother to get Cosby to pay Constand so that she would not contact the authorities.”
In other words, Castor believed a criminal court would interpret Constand as a gold digger who cried rape.
At the time, Constand relented, winning more than $3 million from Cosby in exchange for silence during a civil suit, and the comedian seemed likely to continue his career unblemished. But a decade later, Constand filed a motion to negate the confidentiality agreement from the case, given Cosby’s own candor in the press. As a result, Cosby faced new criminal charges related to Constand’s allegations. By this point, Castor was no longer the district attorney, and the new one decided to renege on the non-prosecution deal, using the 2005 admission in the 2015 criminal case.
The state Supreme Court found other flaws in the prosecution, significantly including the introduction of compelling testimonies of other alleged victims into the criminal case. But at the crux of the conviction’s weakness is that in rendering a testimony admissible in criminal court after a previous district attorney obtained it specifically with the guarantee that it wouldn’t be, the state violated Cosby’s Fifth Amendment right to not incriminate himself.
The court’s decision is undeniably infuriating, but based on the available evidence, it was correct. The real culprit here, other than the credibly accused rapist himself, is Castor for invoking every awful stereotype about women to let a guilty man walk free.
The overwhelming majority of sexual assault victims knew their attacker prior to their assault, and the overwhelming majority of those assailants are repeat offenders. As evidenced by the deluge of allegations against convicted rapist Harvey Weinstein, it’s not uncommon at all for victims to remain in contact with their attackers, and if anything, Constand’s phone stings demonstrated that she wanted to bring as credible a case forward as possible. In fact, it was the dismissive attitude of Castor that she likely wished to avoid.
Cosby deserves to rot in some place worse than prison, but everyone deserves constitutional rights. Blame the prosecution, not the Supreme Court, for robbing justice from Cosby’s victims.
