No Wonder Cosby's Keeping Quiet: He Could Still Be Prosecuted
Rape is not as clear cut as conservatives or liberals suppose; laws on rape vary widely from state to state, and often reflect a dark legacy of racism and sexism.
As rape accusations swirl around one of America’s most beloved father figures, Bill Cosby, there are more questions than answers. First and foremost, of course, is whether he did it or not—and whether we’ll ever know for sure. Perhaps equally important are the many questions being asked about gender, race, and why some voices are listened to more than others.
But what about the legal consequences? Could Dr. Huxtable spend his last years in jail as a sex offender? Are there statutes of limitations for these crimes, which in some cases are alleged to have taken place decades ago?
And, especially in the context of 2014’s spate of sexual assault scandals on college campuses and in football leagues, where do Cosby’s alleged offenses fall within the often ambiguous laws regarding rape and sexual assault?
On both the left and the right, sexual assault seems simple. Yes means yes and no means no. Or, boys will be boys and only some rape is “really” rape. But the legal foundation beneath Cosby’s accusers is a quagmire of historical accident, and a tangle of dark historic ghosts.
Conservatives have already opined that the accusations are not of what Paul Ryan might call “forcible rape.” (CNN’s Don Lemon, no right winger, mansplained to one of Cosby’s accusers that there are “ways to not have oral sex.” Lemon later apologized. According to seven women who have come forward (sixteen have accused Cosby of sexual assault but not all have made the details public), Cosby’s alleged M.O. involves drugging his victims and then having sex with them. Odious but not quite the “classic” case of rape. Besides, some have already hinted, weren’t they asking for it by hanging out with him in the first place?
The trouble is, as all of these question marks suggest, that there is no “classic” case of rape. America’s laws regarding sexual assault are a complicated patchwork that varies from state to state.
First, contrary to some reports, not all of Cosby’s accusers claims are blocked by the statute of limitations. For example, the conduct alleged by Andrea Constand—who sued Cosby in 2005 for assault and battery, and in 2006 for defamation after Cosby’s representatives said she was just trying to extort money—took place in 2004. Pennsylvania, where the assault is alleged to have taken place, has a 12-year statute of limitations on sexual assault.
That means Cosby could still be charged.
But he probably won’t be. Even in 2005, the district attorney investigating the case said he lacked the evidence to prosecute—even though (as he now says) he found Constand credible. That is all the more true today, not just for Constand’s case but for the others as well. After 10 or more years, there’s unlikely to be any physical evidence, unless it was collected at the time. And without physical evidence, cases often come down to “he said/she said.” That is hard to prove beyond a reasonable doubt, especially when the defendant is “America’s Dad.”
This might be why Cosby is keeping mum on the accusations, despite the obvious public relations disaster. If he were to confess, he could well be prosecuted for his crimes.
Cosby’s other accusers allege conduct in California, New York, and New Jersey. This is where it gets complicated. Each of the states has totally different criminal statutes—different crimes, different elements, different sentences. Each has different evidentiary burdens to be met. Conceivably, Cosby could confess to having assaulted Tamara Green, or Joan Tarshis in 1960s-70s Los Angeles, where the statute of limitations has expired. But then, that confession could be used against him in Pennsylvania, where it hasn’t.
Likewise, the same conduct might be rape in New York (which has three degrees of rape, three degrees of criminal sexual acts, and a half dozen other sex crimes) and barred by the statute of limitations (which runs two to five years) might be mere “unlawful sexual intercourse” in California, but not barred by the statute of limitations (which runs five to 10 years). It’s a legal thicket.
Why are the laws so different from one another? The reason is that, contrary to conservative claims that rape is rape only when it’s “forcible rape” and we all know it when we see it, in fact the definitions of rape and sexual assault are moving targets that change over time. Different jurisdictions have evolved differently, at different points in history. There is simply no timeless definition of what rape is.
Indeed, conservatives arguing for “traditional” definitions of sexual assault might be dismayed to learn how awful those definitions are.
In the Bible, when women were considered the property of their fathers (before marriage) or husbands (afterward), rape was considered a crime against the woman’s “owner,” not the woman herself. If a man raped a married woman, he had to compensate her husband. (This is at least better than the Code of Hammurabi, which considered the rape victim an adulteress.) If he raped a virgin, he had to marry her and compensate her father. (Deuteronomy 22:28-29)
“Traditional values” indeed.
This “tradition” endured into 18th and 19th century America. As devastatingly chronicled in Estelle Freedman’s Redefining Rape: Sexual Violence in the Age of Suffrage and Segregation (reviewed here last year), white men could own black and female bodies. Freedman notes that fathers of victims could still sue rapists for financial compensation due to lost income, and that slave-owners could buy female slaves for sexual purposes. The evidentiary rules for conviction were nearly impossible to meet.
The results were horrifying. Women could hardly ever prove their innocence; they had to have a record of perfect chastity, and the age of consent was as low as 10. They had to show almost total resistance throughout the entire encounter.
Unless, of course, the aggressor was black. White women were lower status than white men, but they were higher status than black men. Thus, during Jim Crow, black men were routinely hanged, castrated, and lynched for alleged sexual assaults against white women. Deep racist myths of animalistic, libidinous black men—think Birth of a Nation—fueled this fire, even as white men had been legally raping black women for a hundred years.
So let’s work this out for a moment. Conservative advocates of limiting convictions to cases of “forcible rape” often rely on “traditional values.” But under those same traditional values, Cosby’s mostly-white accusers would surely prevail over an African American defendant. Traditional values in cases like his involve lynching.
Of course, if Cosby were white, then he’d prevail easily over these unchaste women accusing him of misconduct. So maybe that’s the conservative argument: subtract traditional racism (of course!), but keep traditional sexism. Or something.
As complex as a case like Cosby's would be, it reflects the haphazard way in which our laws have evolved—a process haunted by the past and yet still very much ongoing today.