After years of allegations, Bill Cosby was finally charged with sexually assault in Pennsylvania on Wednesday. But newly released documents suggest that, at least in this case, the delay was unnecessary. The essential information that underlies the charges against Cosby has been known to prosecutors for more than a decade.
Sexual assault allegations are frequently very difficult to prove. Absent physical evidence, it is typically the word of the alleged victim versus the accused. Often, the victim alleges sexual assault and the accused claims the sexual activity was consensual. It makes it very difficult for victims to overcome the presumption of innocence in a criminal trial.
Indeed, this was what prosecutor Bruce Castor suggested when he declined to prosecute Cosby for the sexual assault of Amanda Comstand in 2005. From Castor’s release:
[T]he District Attorney finds insufficient, credible, and admissible evidence exists upon which any charge against Mr. Cosby could be sustained beyond a reasonable doubt. In making this finding, the District Attorney has analyzed the facts in relation to the elements of any applicable offenses, including whether Mr. Cosby possessed the requisite criminal intent.
Castor went on to praise Cosby for his “cooperation.” He suggested that Comstand might share culpability, saying, “[m]uch exists in this investigation that could be used (by others) to portray persons on both sides of the issue in a less than flattering light.”
Today, a new prosecutor, Kevin Steele, announced he was reversing the decision and charging Cosby with “aggravated indecent assault, a second-degree felony.” Steele said the charges were “a result of new information that came to light beginning in July 2015.”
But the criminal complaint shows that the case against Cosby has been remarkably strong for 11 years. The new information bolsters the charges against Cosby but the core evidence that underlies the charges has been known to prosecutors for more than a decade.
The basic facts of the case are straight-forward and undisputed. Cosby met Comstand, who is 37 years younger, through Temple University. He befriended her and provided her with “guidance and career advice.” In early 2004, Cosby called Comstand and invited her to his home to discuss her career. He then gave her pills and alcohol. Soon, Cosby began to fondle Comstand, including penetrating her vaginally with his fingers.
The question for prosecutors was whether this sexual contact was consensual. A related issue was the nature of the pills he gave to Comstand.
Cosby’s own version of the events suggested that the sexual contact was not consensual
Cosby told police in 2005 that he gave Comstand “one whole pill and one half pill” of “over-the-counter Benadryl.” But Cosby also told police that the pills he gave Comstand “would make him drowsy and go to sleep right away.” Cosby said “he would not take the pills and go out and perform.” He also admitted that he did not tell Comstand “on that night or anytime thereafter, the true identity of the pills.”
Therefore, even if Cosby’s 2005 story is taken at face value, he has admitted to giving Comstand pills he knew would put her to sleep and then started sexual contact with her when he knew she would not be fully conscious. The prosecutors noted today in the complaint that sexual contact with a person who is floating in and out of consciousness cannot be consensual under Pennsylvania law.
In the complaint, the prosecutors take care to establish they can prove their case without establishing that Cosby gave Comstand prescription or illicit drugs. “He knew the victim could become sedated, and likely rendered incapable of resistance, by her ingestion of wine and Benadryl, or wine and another substance, know only to Cosby, with similar effects,” the prosecutors allege.
Cosby’s admitted behavior after the alleged assault suggests the sexual contact was not consensual
Cosby told police in 2005 that, after the incident, he talked to Comstand’s mother and “apologized twice” and asked what Comstand’s mother wanted him to do. He then called Comstand’s mother back and offered to pay for her to attend graduate school. He also attempted to get Comstand and her family to meet him at a Florida hotel so they could “iron out whatever these problems happen to be.”
Cosby’s conduct after the incident is consistent with the victim’s version of the events: that she was drugged and sexually assaulted while unconscious. It is unclear why Cosby would offer Comstand large financial payments for fully consensual sexual conduct.
Cosby admitted he concealed the true nature of the pills from Comstand and her mother
Cosby acknowledged he didn’t tell Comstand exactly what kind of pills he was giving her. He also acknowledged he told Comstand’s mother that he would write down the name of the kind of pills he gave Comstand and send it to her in the mail. (He claimed his eyesight was bad.) He never did.
Had Cosby given Comstand a normal dose of Benadryl, it’s unclear why he would want to conceal that from Comstand or her mother.
This is where the “new information” comes in. In a deposition connected to the civil suit filed by Comstand, Cosby admitted he obtained prescriptions for Quaaludes and provided Quaaludes to at least one woman he planned to have sex with. It’s unclear whether that information would be admissible in a criminal trial against Cosby, since it doesn’t directly relate to his conduct with Comstand. If it is admissible, perhaps to show a pattern of conduct, it would help the state’s case. Steele claims it was an important factor in his decision to file charges, but Cosby’s deposition testimony about Quaaludes is not a central component to his case.
What the charges do reveal is that the prosecutors likely had sufficient information to charge Cosby for more than a decade. The biggest thing that’s changed since then in not the information that was available to prosecutors but the media environment and the public perceptions of Cosby.