Bill Cosby in the Court of Public Opinion

Rape and Powerful Men

It’s a familiar story. A young woman moves to Los Angeles in search of an exciting life. She meets a well-known and respected man who offers friendship and mentorship in a big city. This man tells the young woman he is impressed with her work and thinks she has talent. He pays for her room and board while she gets her career off the ground.

A few months later, this man invites the woman to meet him at a restaurant and club he owns. At the club, the man offers her some wine and pills to congratulate her on the hard work she has done. She drinks the glass and passes out. When she wakes up, she’s naked in a hotel bed. The man, her benefactor, is standing nearby with nothing but a bathrobe on. He throws $200 at her and then walks out the door. According to sixteen different women, this man was Billy Cosby over the course of his forty years as a comedian, writer, and actor.

The Court of Public Opinion

Even non-attorneys will sense there is something odd about these allegations. The only lawsuit filed against Bill Cosby alleging sexual assault and/or rape was in 2004 and that case was settled in 2006. The other sixteen women, with claims dating as far back as 1965, haven’t come forward until this year. Indeed, these women haven’t filed any lawsuits and only one woman has filed a police report. Instead, they’ve taken to the Facebook and other social media outlets to persuade the larger public.

I’m not going to discuss whether the allegations are true. The only evidence so far are the womens’ testimony, a few witnesses, and a picture of Cosby in a rather ugly bathrobe. No one should be determining innocence or guilt based on testimony about incidents that took place decades ago.

However, there are reasons why women are often reluctant to bring charges against their rapists. Trials are public affairs and that can’t be changed because the Constitution gives criminal defendants the right to confront their accusers. The most widely used defense in rape cases is consent and defense attorneys will often use a victim’s sexual history as evidence of whether she would have consented to sex with the alleged rapist. Although this type of defense is limited by rape shield laws today, evidence about a woman’s sexual history was fully admissible during most of Cosby’s career and any woman trying to bring a case against Cosby would no doubt have her virtue questioned.

Cosby’s attorneys have already given us a picture of what Cosby’s defense would look like. Cosby’s alleged victims have moved on with their lives despite the encounters with Cosby. One woman is a drug addict with a history of criminal conduct; another is a disbarred lawyer after a dispute about a legal fee. These prior moments of dishonesty undermines the creditability of the accusers. Character attacks will likely be a primary defense if any of these claims go to court and with good reason. If the only evidence is testimony, then the best strategy is to discredit the witness giving the testimony. The public spotlight, especially against a popular man like Cosby, will make a spectacle out of the woman’s sex life.

Settling Rape

Based on all these factors, the best thing these women could probably do is to sue Cosby in civil court and then settle the case before it gets to trial. District attorneys have been reluctant to prosecute Cosby because there isn’t enough evidence to prove that he is guilty beyond a reasonable doubt. Civil law uses a lower standard of evidence, so convincing a civil law judge to keep the case alive will be far easier despite the scarcity of evidence.

Some people might view settlement as a way for Cosby to buy himself out of court. In fact, one victim claims that Cosby gave her $200 after raping her as an unspoken agreement to keep quiet. However, there is a difference between a rapist giving women money to stay silent and a legal settlement. First, the offer will not be a further attack on the woman’s dignity. A rapist giving money to a victim will make the woman feel like a prostitute whose body was only worth $200. Settlements for sexual assault will recognize that the woman was wronged and that she has rights beyond being a piece of meat for the rapist’s pleasure.

Second, the alleged victim would have time and advisors to consider whether a settlement offer is a good one. Settlements, unlike hush money, are not “take it or leave it deals”; the plaintiff can negotiate for a good price or go to trial. The important thing is that the woman will have the ability to control what she wants, rather than what the rapist wants.