Bill Cosby might have never seen the inside of a jail cell if not for an unlikely group of heroes who brought a 10-year-old case back from the dead.
In 2004, the comedian, then 67, allegedly drugged and sexually assaulted Andrea Constand, a 30-year-old former basketball player he had met at Temple University. The following year she went to police, who investigated Cosby, but district attorney Bruce Castor said he did not have sufficient evidence to charge him with assault. Castor basically said the case at the time was basically one of he said/she said.
That’s when Constand filed her civil suit against Cosby, forcing him to be cross-examined by her attorney under oath. The case was settled in 2006, the statements were sealed, and the story went away.
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Until Hannibal Buress called Cosby a rapist in October 2014, a routine that went viral and ignited 14 months of accusations, attention, and lawsuits.
Still, Cosby might have avoided prosecution today were it not for the efforts of the Associated Press to unseal those 2005 and 2006 statements. In a letter to the court holding the documents, the AP argued that, in light of the new accusations, the public interest in the Cosby case (reignited by Buress) outweighed Cosby’s interest in his privacy.
On July 6, 2015, federal district court Judge Eduardo C. Robreno agreed. In a surprisingly blunt memorandum, he stated that Cosby “has donned the mantle of public moralist” and thus “voluntarily narrowed the zone of privacy” to which he is entitled. He released the statements, in which Cosby admitted giving Quaaludes to women in order to have sex with them, and admitted digitally penetrating Constand when she was barely conscious—just as Constand had alleged a decade earlier.
Cosby’s admissions, given under oath (unlike those to police), gave Montgomery County, Pennsylvania’s new assistant district attorney, Kevin Steele, the ammunition he needed to charge Cosby with aggravated indecent assault. (It’s “assault” rather than “rape” because Constand can only recall him penetrating her with his finger, not his penis. In Pennsylvania, genital sexual intercourse is required for the crime of rape.)
On the one hand, they provided new evidence: Cosby admitting that he used drugs to sexually assault women. And on the other hand, they provided something to distinguish the Cosby case of today from the Cosby case of March, 2005. Now, finally, Steele had a green light.
Judge Robreno’s decision was really a judgment call. Yes, it was governed by a series of legal precedents governing privacy rights versus public interests, and the judge quoted them all at length.
But it’s easy to see how it could’ve gone the other way. After all, as Cosby’s lawyers repeated ad nauseam, he’d never been formally charged with anything. Thirty women on the cover of New York magazine was an impressive media spectacle, but nothing has been proven in a court of law. And, Cosby’s lawyers argued, what’s the point of sealing court documents if they can simply be unsealed when a media storm blows through?
It’s not hard to imagine another judge agreeing with these arguments, but Judge Robreno didn’t.
“The stark contrast between Bill Cosby, the public moralist and Bill Cosby, the subject of serious allegations… is a matter as to which the AP—and by extension the public—has a significant interest,” he wrote.
Moral of the story: If you’re going to serially rape women, as Cosby allegedly did, don’t hold yourself out as a beacon of public morality.
Cosby’s arrest on Wednesday was substantiated by a 20-page affidavit, signed by two police detectives and a sergeant, with a harrowing account of what allegedly happened.
“At no time did the victim provide her consent,” it states. “She could not move or speak and was, in her words, ‘frozen’ and ‘paralyzed’”—exactly the effects of Quaaludes, though it’s not known what exact drug Cosby gave her on that particular night, as he’s attributed the pills at different times to having been herbal supplements or Benadryl.
“As the victim lie [sic] on his couch, sedated and under the influence… Cosby fondled her and digitally penetrated her vagina.”
Disgusting, but it doesn’t mean he is going to prison.
Today’s affidavit is just one side of the story. Cosby’s attorneys will say Constand could and did consent (as he told police in 2005) and that this was sex, not assault. The state will have to prove beyond a reasonable doubt that Constand did not and could not consent, and even with Cosby’s admissions, that remains an open question—legally speaking, at least.
It is likely, though, that D.A. Steele will call not only the “Jane Does” from Constand’s civil case, but all the women from that New York cover. Their testimony is relevant to establish Cosby’s M.O., and counter his claim that this was somehow consensual. That testimony is not barred by the statute of limitations; indeed, because Cosby cannot be prosecuted for the older offenses, his lawyers will have very little grounds for preventing the women from testifying.
This will be a truly horrific, but perhaps cathartic, spectacle—particularly if the case goes to trial, and the trial is televised. Finally, 30 women will swear under oath about what Cosby did to them. Though legally relevant only as to establishing a common modus operandi, their testimony will itself provide a measure of justice—to them, and to countless other women manipulated and abused by powerful men.
And for that, we can thank Andrea Constand, Hannibal Buress, the Associated Press, Judge Eduardo Robreno, Kevin Steele, and dozens of women who tried to tell the truth, even when no one wanted to listen. It takes a village to take down a monster.
