The reality is that in our society, Black women are most likely to be sexually assaulted, not believed, marginalized and negatively impacted. According to a report from The National Center on Violence Against Women in the Black Community, for every Black woman who reports a rape, at least 15 remain silent about their own assaults. Black women are least likely to have the financial resources to come forward at work for fear of losing their jobs, and least likely to have the money to hire lawyers and pursue civil cases.
The shockwaves are still rippling from the Cosby ruling, but the issues at hand are not new to those of us who have followed the case closely. Though the arguments are complex, the decision is ultimately a clear case of the court getting it wrong. And the court’s findings have the potential to wreak havoc far beyond Cosby’s case.
The court ruled that a prosecutor’s 2005 decision to not pursue a criminal case against Cosby was ultimately used against him at trial.
The trial court twice previously rejected this conclusion, and a Pennsylvania appellate court agreed.
The alleged non-prosecution decision by then-District Attorney Bruce Castor has been fraught with problems from the beginning.
It was never reduced to writing in the form of an official plea agreement nor a legal memo. Castor said that putting the decision in writing was “unnecessary” because he didn’t think the case against Cosby would get any better.
Citing promissory estoppel, a doctrine that essentially legally enforces a promise, the court ruled in favor of Cosby. It’s unfathomable that the Pennsylvania Supreme Court would uphold this. This undermines the specific legal method in which immunity is granted to criminal suspects, i.e., in writing and entered with the court. Further, the state Supreme Court’s finding gives unfettered powers to prosecutors to enter into side deals with dangerous criminals that bind future district attorneys in perpetuity. Imagine if the original prosecutor’s decision not to move forward with charges against the White men (who were not yet deposed) in Brunswick, Georgia who shot and killed Ahmaud Aubrey was binding on the prosecutor who subsequently had the courage to indict the three men involved Aubrey’s heinous killing.
Last year the court agreed to hear Cosby’s appeal to overturn his conviction based on two points. One was that witness testimony on the defendants’ “prior bad acts” should not have been allowed. Although the court ultimately did not address this point, this argument from Cosby’s attorneys is also flawed.
Our justice system has a long history of allowing prior bad acts testimony in select circumstances, including domestic violence assaults — and the Pennsylvania Supreme Court has upheld its relevance. Such testimony, offered under oath, provides critical context for judges and juries, particularly in cases of “he said, she said,” where there is a lack of forensic or physical evidence but a long history of similar acts that strongly suggests a pattern of behavior.
Beyond the insult to Andrea Constand and the more than 50 women who have come forward to share their stories of being sexually assaulted by Cosby, the decision is a blow to all women.
Cosby was the first major celebrity arrested and prosecuted during the #metoo era. His conviction was a watershed moment for the movement. It marked a changing of the guard. Women would finally be heard and believed. Powerful men were no longer off limits. Prosecutors would no longer shy away from pursuing justice when the accused is wealthy and famous.
This decision — although limited to the unique circumstances of Cosby’s case — could have a chilling effect on the prosecution of sexual assault cases. It may compound victims’ valid fears around confronting the rich and powerful. Prosecutors may be reluctant to pursue charges, and might second guess introducing prior bad act witnesses even when they provide critical context.
The moment and movement that finally began to take hold with the Cosby conviction was long overdue. Now, as women again find their voices stifled, the tide may well turn against us.
