On Wednesday, the Pennsylvania Supreme Court overturned Bill Cosby’s conviction, citing a 2005 agreement made by a previous prosecutor. After assessing the credibility of the alleged victim, Andrea Constand, then-Montgomery County District Attorney Bruce Castor concluded that a conviction based on her testimony and available evidence alone was highly unlikely. So instead, he made a deal with Cosby: testify in the civil case and you won’t be prosecuted.
So Cosby testified in three separate depositions, incriminating himself on multiple occasions and confessing that he had given women quaaludes, a now-illegal, powerful sedative, before having sex with them. And then he was prosecuted in a criminal trial, despite Castor’s promise — a clear violation of Cosby’s due process and fundamental fairness rights.
The court did what it was supposed to do. Cosby was granted his freedom, despite facing allegations from 60 women, not because of a “technicality” but rather because the judicial system worked the way it’s designed to work. And that is the problem.
Castor’s conclusion that he had to rely on the words of an alleged rapist, rather than that of Constand, is another example of how little victims are believed and how difficult the justice system has made it to try and convict rape cases. He believed that, unless Cosby confessed, “there was insufficient credible and admissible evidence upon which any charge against Mr Cosby related to the Constand incident could be proven beyond a reasonable doubt,” a common conclusion made by district attorneys across the country. Out of 1,000 rapes, only 310 are reported and only 50 reports lead to arrests.
“Prosecutors all the time make decisions like, ‘I’m not going to proceed with this case, I’m not going to proceed with that case, I could never prove it beyond a reasonable doubt,’” Richard Klein, a criminal law professor at Touro Law School who spent a decade serving as a criminal trial attorney with the Legal Aid Society, told me. “So that was the assessment of that prosecutor regarding this defendant.”
Castor cited difficulties with Constand’s “credibility as a witness based, in part, upon her decision not to file a complaint promptly.” Yet countless studies have shown that it’s common for victims to not come forward or even speak of the trauma they endured in the wake of an assault — even years or decades later. Be it shame, fear, self-blame, uncertainty, not recognizing they had been raped, or what is dubbed Rape Trauma Syndrome, in which a victim pretends everything is fine while internally suffering, there are a slew of reasons why a person chooses not to come forward on a truncated timeframe that would make it easier for a prosecutor to convict an alleged rapist. Yet prosecutors often decline to take these cases, for fear they will not win and, as a result, harm their reputations and professional careers.
“No prosecutor wants to take a case to trial that they think they’re not going to win, especially a case which is highly publicized because then the District Attorney’s office just looks lousy,” Klein explained.
Castor also determined that “a prosecution would be frustrated because there was no corroborating forensic evidence” and because “testimony from other potential claimants against Cosby likely was inadmissible under governing laws of evidence.” In other words, without a rape kit proving Constand had been assaulted, a conviction was unlikely. Yet there is a documented shortage of Sexual Assault Nurse Examiners (SANE nurses) trained to administer rape kits, and a slew of hospitals that do not have rape kits. When a victim arrives at an emergency room, they’re often made to wait anywhere from four to 12 hours, and are often not allowed to drink, eat, or urinate for fear they’ll destroy evidence. Rape kits are evasive and can be physically painful, and an overwhelming backlog of untested rape kits have made it possible for perpetrators to go free.
When it takes just one District Attorney to determine a victim’s perceived credibility; one juror, who lacks a real understanding of the various responses to a traumatic event like rape, to lead to a hung jury; where both the testimony given and the evidence collected can be re-traumatizing, it’s clear that the justice system is not set up to protect sexual assault survivors, but to further harm them.
Klein does believe that things have improved in both recent years and over time. “These days prosecutors are much more reluctant to not pursue a case,” he told me. “Times have changed from Weinstein on.” In truth, there have been small changes that have worked to better protect sexual assault survivors. In 2013, “Rape Shield Laws,” designed to protect victims while testifying, barred defense attorneys from “introducing evidence of victims’ sexual behavior, history, or reputation.” In March, the Survivors’ Access to Supportive Care Act was reintroduced in the Senate, which would expand access to healthcare services for victims. And after years of rape being the only crime that required there be corroboration for the women’s claim — every other crime a jury could find an alleged victim credible on their word alone — as of 2001 there isn’t a single state that requires corroboration.
But things haven’t improved enough, clearly, and the gains made are not sufficient enough to give sexual assault victims the justice they deserve. In 2017, New Hampshire lawmakers considered a bill that would “require victims of sexual assault to corroborate their testimony if the defendant has no prior related conviction.” In a recent study, 44 percent of police officers were unlikely to believe a sex worker who claimed she was raped, and 14 percent were unlikely to believe a woman if she was married. Most rape cases still do not go to trial.
“I don’t think we’re going to have a system where the prosecutor is going to say ‘I am going to bring this case even though I don’t think a jury will convict,’” Klein said. “A prosecutor is not ethically supposed to proceed with a prosecution when the prosecution thinks that they can’t prove the case beyond a reasonable doubt.”
When the fate of a victim’s chance at justice hinges on the determination of a single district attorney, and white men lead 79 of the 93 US attorney’s offices while making up less than a third of the population, in a country where they are far less likely to be the victim of rape, the decision to overturn Cosby’s conviction was not flawed: it was a patriarchal, sexist system working as intended.
Brock Turner is an example of that. David Becker is an example of that. Austin James Wilkerson is an example of that. And now, after having just served two years in prison, Bill Cosby is an example of that.
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