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Could A California Evidence Law Change The Case Against Bill Cosby? Legal Experts Break It Down

CREDIT: JOHN MINCHILLO/INVISION/AP/FILE
CREDIT: JOHN MINCHILLO/INVISION/AP/FILE

On Friday, Bill Cosby will give a long-awaited deposition in the civil case of Judy Huth, who claims Cosby assaulted her at the Playboy Mansion in 1974 when she was 15 years old. This is Cosby’s first deposition since 2005, the transcript of which was released earlier this year and revealed, among other things, that Cosby admitted on the record to giving women quaaludes with the aim of using them for sex. Friday also brings a special episode of Dateline, which will feature 27 of the 50-plus women who have accused Cosby of sexual assault.

Meanwhile, the LAPD has said it will investigate all claims of sexual assault against Cosby, whether or not they fall within the statute of limitations. Why do those cases matter? Under California law, alleged victims of sex crimes can testify in court as witnesses, even if their own cases didn’t result in any criminal charges. California is in the minority — only 15 states have laws like this on the books — and it also happens to be the site of many of Cosby’s alleged assaults.

These investigations have been going on since December, when LAPD chief Charlie Beck told the Los Angeles Times, “We don’t turn people away because things are out of statute. You come to us, especially with a sexual allegation, we will work with you. We address these things seriously, and it’s not just because it’s Mr. Cosby.”

So how exactly does this law work, and how big an impact could it have on the Cosby case? To find out, I called up a few legal experts: Aviva Anne Orenstein, professor at Indiana University Bloomington’s Maurer School of Law who specializes in these evidence rules (she has authored five papers on the subject); Michele Gilman, professor at University of Baltimore School of Law and co-director of the Center on Applied Feminism; and Tamara Lave, associate professor at University of Miami School of Law and author of several papers on sex crimes and evidence law.

Let’s go back to a simpler time: 1994

“We generally do not allow people’s prior bad acts to be mentioned during the trial on a specific event,” said Orenstein. “It’s considered wildly unfair. “

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We all use knowledge of prior bad acts to make choices in our day-to-day lives: Boycotting the restaurant that gave you food poisoning, refusing to have your hair cut by the stylist who told your friend it was a good idea to get bangs, deciding not to leave your dog with the neighbor who let his cat escape through a window.

This law is a dangerous law. It makes it much easier to convict an innocent person.

But the problem with character evidence in a court of law (as opposed to everyone’s favorite court, the court of public opinion) is that “it makes it too easy for the prosecutor to prove something,” said Lave. “The fear is that it reduces the burden of proof. And jurors, instead of taking their job really seriously, will go, ‘Well, this is a bad guy. And even if the prosecutor didn’t prove it, we think he deserves to be punished because he did something.”

In 1994, Congress passed a statute, Rule 413, that allows evidence of prior sex crimes and prior incidents of child molestation to be admissible in those cases. “That was a huge change in the law,” Gilman said. “Congress at the time felt these particular types of crimes are different than other crimes, that people who commit them are particularly depraved and particularly likely to recommit these types of offenses.”

“There are not many sex crimes prosecuted at the federal level; it’s usually a state issue,” Gilman went on. (Notable exceptions: The military, Indian reservations, and, every now and then, assaults that occur on airplanes.) “So it became: Will the states follow Congress’ lead and create this kind of loophole?” Since 1995, according to Orenstein, fifteen states, including California, have enacted similar laws that let in prior evidence of sex crimes.

What makes California special

“One thing that’s interesting in California is that the defendant does not need to have actually been convicted in prior sex crimes in the past,” Gilman said. “An arrest alone is enough, even if the charges are dropped or were never even filed. We’re not even talking about convictions. We’re just talking about arrests. And that’s why [with] Cosby, who has never been convicted of this stuff, this law [would] be allowed in his trial and allow these prior victims to testify.”

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“In the federal court code, if something is older than ten years, it’s not going to be allowed in,” said Lave. But California “does not have that rule. California allows cases that are really old to come in. That means the cases from the ’70s would not be time-barred.”

Keep in mind: None of this prior alleged sex crimes can automatically be admitted. The California court still “has the discretion to exclude prior sex crimes if including them would be substantially prejudicial.” So the fact that some of these alleged incidents occurred decades ago “is a factor the California court will surely consider when it determines which of these victims can come in and testify in any case.”

“Cosby and his lawyers know that if this case comes forward in California, these women will be able to testify,” said Gilman. “And that will shape whether they’ll consider plea-bargaining and other options.”

What’s the general consensus in the legal profession about these laws? (Spoiler alert: Not great!)

“This is sort of my life’s work,” said Orenstein. “And I’ll prepare you for the fact that I think they’re terrible rules.”

She explained: “The essential rule of evidence is you weigh probative value against unfair prejudice. The unfair prejudice is that they’re going to hate the person, and want to punish him for his past crimes that he may or may not have been punished for, to say, ‘This is the time for punishing him, I’m not sure if he did this charged crime but he sure as hell did these other things.’”

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“To me, it says we can’t believe women unless we see five other people,” said Orenstein. “And [in improving] the treatment of rape victims, the solution is not to take away the civil rights of the accused.”

Orenstein also believes in a feminist argument against these laws, that “there’s a danger, because prosecutors become less interested in prosecuting cases without priors. Once you’re allowed to use them, you might feel like one woman won’t be believed. You need a whole gaggle. That’s part of the feminist argument against these rules.”

“I think feminism is concerned about the rights of the outsider,” said Orenstein. “And the presumption here is that being a rapist is such a weird, deviant thing that if we could catch the guys who do it all the time, we would be a safer society. But the truth is, there are a lot of rapists among us, and it’s not something that is particularly prone to saying, ‘Well he did it before,’ because a lot of people did it before.”

It’s hard to do when you feel compassion for the victims and you know the guy is guilty.

“Most of the legal profession was totally opposed to these laws that allow in prior sex crimes and prior molestation” when they were first introduced, said Gilman, and she agrees. “As an evidence professor and also as an advocate for women’s rights, I still would not want these types of laws passed in my home state because I think they just undermine some core principles around the rights of the defendant to a fair trial,” said Gilman.

In Lave’s opinion, this law “makes it much more likely that someone who committed a crime is convicted. It also makes it much more likely that someone who didn’t commit a crime is convicted. This law is a dangerous law. It makes it much easier to convict an innocent person.”

Why these laws can still sound appealing

These laws are driven by a real, urgent concern: It is extraordinarily difficult to convict rapists. A majority of rapes aren’t reported to the police. Only three out of every 100 rapists will spend even one day in prison. The justice system, more often than not, fails victims of sexual assault at every step of the process. So while this law, according to most legal experts, is deeply problematic, it comes from a place of legitimate desperation, a sense that something needs to be done to combat a crime this brutal and rampant.

“There are a lot of social pressures in addition to legal pressures” that influence a rape victim’s decision not to report an assault, said Gilman. In the case of many of Cosby’s alleged victims, “these incidents happened before rape shield laws were passed, when courts really did throw a rape victim’s prior history under the microscope.” Today, “even with rape shield laws, they’re not foolproof, information gets out to the media anyway. So the legal system doesn’t make it easy to press charges, and neither does societal pressure that a lot of these victims were facing. There’s definitely things we could change to make the justice system better for these victims.”

“They’re so seductive and appealing, and when people pass these kind of laws, I understand exactly why,” said Orenstein. She cited the William Kennedy Smith case, the first rape trial to ever be televised, in which Smith, then-Senator Edward Kennedy’s nephew, was accused to raping a woman, “and three women who didn’t know each other said, ‘He did the exact same thing to me.’” But the jury never heard testimony from the three women — their testimony was barred by the judge, twice — and Smith was exonerated. “So it’s very persuasive, especially when the defense is consent, to have someone say: You can discredit each woman separately, but when they all come together and say, the exact same thing happened to me, you go, Oh my God.

Cosby in particular “is an incredibly appealing example,” said Orenstein, and she sees how “people are fed up with these guys saying, ‘she consented.’ If you get all these women in the room, you can’t say that anymore.”

People are fed up with these guys saying, ‘she consented.’ If you get all these women in the room, you can’t say that anymore.

When thinking about these laws, Orenstein said, “You might want to worry, not about Bill Cosby… You don’t worry about the rules when you have a guilty person. But that’s exactly the mentality you want to avoid in a free society. I really want to emphasize, it’s hard to do when you feel compassion for the victims and you know the guy is guilty. But what does that trial look like? The victim is on the stand for two hours, and you have two hours of testimony from unrelated crimes.”

With this law in play, what could happen to Cosby?

Lots of ifs here, people. If a criminal case is brought against him in California — which would mean a victim coming forward who alleges an assault that took place within the past six years — and if that case actually goes to trial, and if he is convicted, he may serve jail time.

Should that criminal case arrive, will all 50-plus accusers testify? Probably not. “It would be time-consuming, it would be cumulative — just giving the same evidence over and over again — and it’s really hard to believe that Cosby could get a fair trial with 50 women there,” said Lave.

This is the sort of layman ethical conundrum: Is it unfair for Cosby to face 50 women if he did, in fact, rape 50 women? “Remember, Cosby is presumed innocent,” said Lave. “And in our criminal justice system, the person who has the constitutional right is the accused. It’s all about the accused.”

That doesn’t mean those women would never have the chance to speak publicly in court about their experiences, though. “If Mr. Cosby was convicted, at his sentencing, all these people would be able to stand up and speak, and the judge would be able to consider that,” said Lave.

If there’s no criminal case against Cosby right now, why does any of this matter?

For one thing, there could be a criminal case in the future, at which point all of the information from accusers could be admissible. And beyond that, this investigation, and the publicity surrounding it, “gets people to believe that someone who looks avuncular and nice and hawks Jell-o could be a rapist, said Orenstein “And that, in itself, it breaks down the rape myths… At the very least, investigating this stuff is useful and important because even if you can’t try him on it, you can shame him and you can make it very clear that all of a sudden, you don’t just have Teflon because you’re a likeable celebrity.”

“I think that what the police and prosecutors are doing is right,” said Lave, even “if they can’t get a conviction. That doesn’t mean there’s no value in what they’re doing. What these women are saying happened to them is really serious. I would imagine that if this happened to you and you felt isolated and ashamed and angry, it would be empowering to have the detective and prosecutor talk to you, and not be condescending, and say, ‘We think what happened to you is serious.’ As a citizen, I think it’s worth having my taxpayer dollars go to that.”