Nearly 12 years after Bill Cosby allegedly drugged and sexually assaulted Andrea Constand, his arrest in Pennsylvania on a charge of aggravated indecent assault subjects him to the possibility of criminal penalties for the first time. One reason that the prosecution is happening now is simple—this is prosecutors’ last opportunity to charge Cosby before the statute of limitations expires. But in 2005, when memories and evidence were relatively fresh, prosecutors chose not to pursue charges. The change was undoubtedly prompted in part by the enormous number of women who have now accused Cosby of similar conduct, but may also indicate a more general shift in attitudes about rape and sexual assault. While it is too early to say whether it will break any new legal ground, the case is now taking place in a historical moment when questions about intoxication and consent to intoxication are hotly contested.
In 2005, then-Montgomery County District Attorney Bruce Castor declined to prosecute Cosby, citing “insufficient credible and admissible evidence.” With the exception of statements in depositions conducted in Constand’s civil lawsuit against Cosby, though, the bulk of the information contained in the Affidavit of Probable Cause supporting issuance of a warrant for Cosby’s arrest was known to authorities in 2005. Constand’s account is essentially that Cosby offered her pills to help her relax; that after she took the pills and drank some wine which Cosby pressed upon her she began experiencing blurred vision and difficulty speaking; and that Cosby then told her to lie down, assisted her to the couch, positioned himself behind her, and then touched her sexually, including penetrating her with his fingers. According to the affidavit, Cosby was questioned in 2005 about these allegations and agreed that he had given Constand pills when she complained of tension and inability to sleep (he claimed that they were Benedryl, which he agreed made him go to sleep right away when he took it); that he had not told her what the pills were; that he had engaged in sexual activity with her; and that when Constand’s mother confronted him about his actions he offered to pay for Constand to go to graduate school. Constand’s mother also spoke with police and stated that Cosby had told her that he gave Constand prescription pills and would mail her the name of the pills. Cosby nonetheless claimed that his activity with Constand was consensual, and prosecutors declined to charge him.
Depositions conducted in the course of Constand’s civil lawsuit against Cosby do add some additional detail which is likely to assist prosecutors—among other details, he acknowledged that he had obtained seven prescriptions for Quaaludes that he did not intend to take himself, but intended to use for young women he wanted to have sex with. The current District Attorney has pointed to the depositions’ release as one reason to reopen the matter, but as creepy as some of Cosby’s deposition statements come off, in my opinion his initial statements to police were also quite damaging. Notably, those depositions were conducted in 2005, but prosecutors apparently made no effort to obtain them until 2015, when they were unsealed at the request of the media.
The Pennsylvania law that applies to this case today is the same that was in effect in 2005. It is clear that penetration is aggravated indecent sexual assault if it takes place without the complainant’s consent, or while the complainant is unconscious, or where a defendant has “substantially impaired” the complainant by giving her drugs or intoxicants without her knowledge in order to weaken her resistance. While it isn’t clear that Constand claims that she technically lost consciousness during her encounter with Cosby—she described herself as “in and out” but was able to describe his actions while she was in that state—since at least 1997 the Pennsylvania courts interpret the law to consider a person “unconscious” when she lacks the conscious awareness that she would possess in the normal waking state. Change in the law does not appear to explain the change in the charging decision.
One other major change since 2005 is in the sheer number of Cosby’s accusers—though even in 2005, Constand was not the only one.
As a society I believe that we are now talking more about what it means to consent to sexual activity, how sexual partners should communicate about consent, and when a person simply cannot consent, than we have ever done. Concepts like “affirmative consent” are gaining ground on college campuses and making inroads into the criminal law, as the American Law Institute considers amending its guidance on rape law to include an affirmative consent standard. Colleges almost universally provide that a person who is incapacitated cannot give consent; others go farther and say that a student who is “intoxicated” cannot consent.
In my own practice, I follow closely how these issues are playing out in the context of campus disciplinary proceedings against students accused of sexual assault as well as in the broader criminal law. While I welcome efforts to protect women generally and female students in particular, I have concerns that some well-meant initiatives will have unintended effects. Attempts to regulate sexual conduct can run the risk of sweeping too broadly and of criminalizing conduct that is essentially innocent or simply trivial. These are genuinely difficult issues, and promoting the ideal of consent is not a simple task to achieve (particularly using the hatchet of criminal law.) All of that said, in the context of these difficult current debates, the Cosby case—in which he is alleged to have given a woman a drug, didn’t tell her what it was, and then engaged in sexual activity while she was only partially conscious and unable to either consent or effectively object—is an easy one. That context may explain prosecutors’ change in attitude as much as any intervening change in the evidence or substantive law.