Why Cosby verdict is probably less breakthrough than anomaly

Clockwise from above: Bill Cosby, Hollywood mogul Harvey Weinstein, music producer Russell Simmons and director James Toback. Bill Cosby accuser Andrea Constand (centre) after the guilty on all counts verdict was delivered in the sexual assault retri
Bill Cosby accuser Andrea Constand (centre) after the guilty on all counts verdict was delivered in the sexual assault retrial at the Montgomery County Courthouse in Norristown, Pennsylvania. PHOTO: AGENCE FRANCE-PRESSE
Clockwise from above: Bill Cosby, Hollywood mogul Harvey Weinstein, music producer Russell Simmons and director James Toback. Bill Cosby accuser Andrea Constand (centre) after the guilty on all counts verdict was delivered in the sexual assault retri
Bill Cosby (above) , Hollywood mogul Harvey Weinstein, music producer Russell Simmons and director James Toback.PHOTO: REUTERS
Clockwise from above: Bill Cosby, Hollywood mogul Harvey Weinstein, music producer Russell Simmons and director James Toback. Bill Cosby accuser Andrea Constand (centre) after the guilty on all counts verdict was delivered in the sexual assault retri
Bill Cosby, Hollywood mogul Harvey Weinstein (above), music producer Russell Simmons and director James Toback.PHOTO: REUTERS
Clockwise from above: Bill Cosby, Hollywood mogul Harvey Weinstein, music producer Russell Simmons and director James Toback. Bill Cosby accuser Andrea Constand (centre) after the guilty on all counts verdict was delivered in the sexual assault retri
Bill Cosby, Hollywood mogul Harvey Weinstein, music producer Russell Simmons (above) and director James Toback.PHOTO: REUTERS
Clockwise from above: Bill Cosby, Hollywood mogul Harvey Weinstein, music producer Russell Simmons and director James Toback. Bill Cosby accuser Andrea Constand (centre) after the guilty on all counts verdict was delivered in the sexual assault retri
Bill Cosby, Hollywood mogul Harvey Weinstein, music producer Russell Simmons and director James Toback (above).PHOTO: REUTERS

NEW YORK • The guilty verdict against Bill Cosby was hailed by some as long overdue.

Not just because his victim, Ms Andrea Constand, first reported his sexual assault on her 13 years ago, but also because, as a lawyer for other Cosby accusers put it, "women were finally believed". Getting there required surmounting significant obstacles: a victim who waited a year to report the crime and gave two different dates for the attack, a prosecutor who declined to act, a new district attorney who raced against the statute of limitations and, finally, a first trial in which the jury could not agree.

That was before a series of revelations that caused a seismic shift in public awareness of sexual assault by powerful men. And this is after. But those who know the legal system best say the verdict is not the bellwether that many would like. Criminal convictions in sexual misconduct cases where the victims and the accused knew each other will remain exceedingly hard to get.

Neither former Hollywood mogul Harvey Weinstein nor music producer Russell Simmons has faced criminal charges, despite probes into allegations against each of them. Film director James Toback, who has been accused by scores of women of sexual misconduct over decades, will quite likely never face arrest because the statute of limitations has expired.

"The Cosby trial is an anomaly," said former sex crimes prosecutor Barbara Ashcroft in Montgomery County outside Philadelphia, where Cosby was tried.

"The reality for sex crimes prosecutions against victims of acquaintance sexual assault, even post-Cosby conviction, is the cards are stacked against them."

Last Friday, one of Cosby's publicists, appearing on Good Morning America, compared Cosby's case to that of Emmett Till, a boy who was lynched in 1955 on suspicion that he had flirted with a white woman, who later denied he had done so.

Ms Constand broke her silence since the verdict on Twitter, saying, "Truth prevails." But truth has an arduous path.

Delayed reporting by victims makes the collection of physical evidence nearly impossible and can trigger the protection of statute of limitations laws. Police, prosecutors and juries may also question why they waited so long.

Alcohol or drugs are often involved in such cases, which can affect the memory, as can trauma. The presence of mind-altering substances can encourage juries to focus on the actions of the victim, instead of the accused.

Prosecutors may be reluctant to bring charges in a case they think they cannot win. And even if a case reaches the courtroom, juries may accept that sex occurred but question whether it was consensual, asking for physical evidence of resistance or injury that may not exist.

Those factors taken together make the legal standard to win a criminal conviction, beyond a reasonable doubt, usually insurmountable, analysts say.

"Jurors often say they did not convict not because they did not support the defendant, but because the state did not meet this very high standard of proof," said Mr Ken Broda-Bahm, a jury expert with the law firm Holland & Hart.

"On the other hand, the public standard is, 'What do you think happened?' which jurors are specifically asked not to do."

In New York, the Manhattan district attorney's office is investigating a claim by Ms Paz de la Huerta, an actress, that Mr Weinstein raped her on two occasions in 2010, and an allegation that the mogul forced an acting student, Ms Lucia Evans, to perform oral sex during a business meeting at his office in 2004.

District attorney Cyrus Vance Jr has been criticised for failing to act on an earlier complaint against Mr Weinstein, and police have said that they developed a strong criminal case based on de Ms la Huerta's account. But Mr Vance has said his office is still gathering evidence.

This month, Mr Vance appointed to the investigation a new prosecutor who is known for winning convictions in cases with little physical evidence. But in 2011, the prosecutor also recommended throwing out a sexual assault indictment against Mr Dominique Strauss-Kahn, the former head of the International Monetary Fund, after the reliability of the complainant, a hotel housekeeper, came into dispute.

In Los Angeles, prosecutors are investigating a claim that Mr Weinstein raped a woman in a hotel room in 2013, The Los Angeles Times reported. The woman did not immediately report the crime, so no rape kit was taken. Mr Weinstein is also under investigation for a sexual assault in London.

In all, Mr Weinstein has been accused of rape, assault or sexual misconduct by more than 80 women. His representatives have denied the criminal allegations, saying that any sex acts were consensual.

Mr Simmons has been accused of sexual assault and other crimes by at least 10 women. He has denied having sex that was not consensual.

Three women who said their assaults took place in New York - Ms Tina Baker, Ms Drew Dixon and Ms Toni Salle, each of whom said Mr Simmons raped them in encounters between 1988 and 1995 - said they spoke with a detective from the NYPD's cold case squad.

But the detective cautioned them that their allegations could not be prosecuted because the encounters occurred outside the statute of limitations. The detective also told them their accounts would be kept on file for potential use should a more recent case surface.

The statute of limitations for sexual assault in California - where some of the claims against Mr Simmons and Mr Weinstein have been made - had until recently been 10 years. But in the wake of the allegations against Cosby, California eliminated statute of limitations protections for sexual assaults in 2016. The new rule applies only to crimes committed after Jan 1, 2017.

New York abolished the statute of limitations on rape in 2006, but there is still a five-year limit for other types of felony sexual assault.

This month, the Los Angeles County district attorney's office announced that Mr Toback, 73, who has been accused of sexual misconduct by scores of women over decades, would not be charged in five separate investigations because the allegations were beyond the statute of limitations.

The Los Angeles Times has reported that hundreds of women had come forward to complain about Mr Toback, who has denied wrongdoing.

One critical difference between Cosby's mistrial and his conviction was that in the second trial, Judge Steven O'Neill allowed five women in addition to Ms Constand to testify. All said they believed Cosby had drugged and sexually assaulted them. In the first trial, only one other accuser could testify.

Cosby's lawyers are likely to raise the decision to allow the additional testimony on appeal.

"Even though it is the first celebrity #MeToo case, it is not typical," said Northwestern University law professor Deborah Tuerkheimer, a former prosecutor.

The law, Prof Tuerkheimer said, responds slowly to social change: "Unless and until #MeToo has penetrated to every member of society, when you choose 12 people at random, there's just no telling what's going to happen."

NYTIMES

A version of this article appeared in the print edition of The Sunday Times on April 29, 2018, with the headline 'Why Cosby verdict is probably less breakthrough than anomaly'. Print Edition | Subscribe