The Right Decision in the Cosby Case

By Susan Estrich

December 12, 2019 5 min read

On Tuesday, a three-judge panel in Pennsylvania rejected Bill Cosby's appeal of his rape conviction, holding that it was proper for the judge to allow five additional women to testify that they, too, had been drugged and sexually assaulted by Cosby.

That evidence did not come in at the first trial, which is almost certainly why the first jury hung.

"He said, she said" cases have always been difficult. "He said, they said" is another matter entirely, and always has been. The problem has been getting such evidence.

Back in the 1980s, I sat down and read every decided rape case from every state for the preceding 50 years or so. It was easier than it sounds because the patterns were so stark. The law was all wrong in those days, imposing requirements unique to rape cases including corroboration. But those requirements were manipulated — which is to say they were always fulfilled — when you were dealing with a black-on-white rape, or a stranger with a gun, or a gang rape. One woman complaining about a man she knew, or might have known? Good luck. Most such cases were never prosecuted then and are never prosecuted now.

The pattern was the same in the sexual harassment cases, which I read a few years later. All the same biases were imported, even if the legal rules were not. It was the "nuts and sluts" defense, I started calling it 30 years ago. Since you could no longer argue that women needed to lie about rape to cover up their lack of virtue, defense lawyers needed another reason to reject the women's accounts. Why would an adult woman lie? Easy. Because she's a nut. Or a slut. Or both.

In order to protect women from having their sex lives paraded in front of them by defense lawyers, many states passed rape shield laws making such evidence irrelevant. Those laws were never intended to protect serial rapists and harassers from responsibility, but that's how many courts interpreted them. So in the first Cosby case, the testimony of the other women who had been drugged and raped by Cosby was excluded.

The thing about the nuts-and-sluts defense is that it doesn't work with multiple victims. Quite simply, one woman might be a nut, and a second woman might be a slut, but by the time you have three women complaining that a man behaved unlawfully, he has a definite problem — the rule of three.

Virtually every state evidentiary code has a provision that allows pattern evidence of similar bad acts. That would seem to be an obvious basis for admitting testimony from the other victims. But courts were reluctant to use it — insisting, for example, that the cases be identical, which is just unrealistic — or invoked the rape shield law as a basis for a rule of "symmetry."

There was no symmetry. The only evidence a rape shield statute excludes is prior evidence of the alleged victim's consensual sex with other individuals. If, on the other hand, the alleged victim had previously complained of rape in similar circumstances, that would certainly be relevant. By the same token, no one is trying to admit evidence of a defendant's consensual partners. It's the other women who testified that Cosby raped and drugged them who did him in.

In a recent interview, Cosby said: "When I come up for parole, they're not going to hear me say that I have remorse. I was there. I don't care what group of people come along and talk about this when they weren't there."

Sorry, Bill. They were there. Not that night, but the other nights. He won the "he said, she said" contest the first time around, but the power of five made what she said far more plausible than what he did.

"Me Too" isn't just a movement. It's a legal theory that, when properly applied, puts men like Cosby where they belong.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

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