Thirteen of the 50-plus women who have accused Bill Cosby of sexual assault were put forward by prosecutors to testify against him at his criminal trial this spring. But Judge Steven T. O’Neill ruled Friday that prosecutors can only call one of those women as a “prior bad act” witness.
Cosby will stand trial for the alleged 2004 assault of Andrea Constand. Constand says that Cosby drugged and sexually assaulted her at his home outside Philadelphia.
According to the Associated Press, the woman who will be allowed to testify alleges Cosby assaulted her in 1996. Though the women were not named in court papers, eleven of them have come forward publicly to describe their allegations against Cosby and are identifiable based on those disclosures, and only one of those women described an assault that occurred in 1996. That individual, who goes by the pseudonym “Kacey,” is most likely the woman who will be able to testify.
Kacey came forward at a press conference led by Gloria Allred on January 7, 2015. She says that, while she was working as an assistant for Cosby’s William Morris agent, Cosby drugged and assaulted her. She thought of Cosby as a “father figure or favorite uncle.” During a one-on-one meeting at the Bel Air Hotel — Cosby, she says, told her they would be talking about her professional future — Cosby made her take a “large white pill” to “relax.” She woke up in bed next to him. He was only wearing a bathrobe.
It is rare for evidence of this nature to be admitted in criminal cases. As Aviva Anne Orenstein, professor at Indiana University Bloomington’s Maurer School of Law who specializes in these evidence rules and has authored five papers on the topic, told ThinkProgress in 2015, “It’s considered wildly unfair” to do so.
“The essential rule of evidence is you weigh probative value against unfair prejudice,” she said. (At the time of this interview, there was not yet a criminal case against Cosby.) “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.’”
But there are exceptions, if prior bad acts can prove that the accused has committed nearly identical crimes in the past. Prosecutors in the Cosby case say just that: In court documents, they insist Cosby executed all his assaults according to a pattern, by endearing himself to women, offering counsel and mentorship to several, drugging them, then assaulting them. As the AP reports, the defense objected to this, “saying the string of old ‘casting couch’ claims aren’t part of ‘signature’ behavior.
Out of the 13 women prosecutors hoped would be able to testify, all but one say Cosby offered them pills, alcohol, or both. Anyone who has been following the extraordinary wave of accusations made against Cosby over the past few years likely knows that most of these women relate similar experiences. As I wrote last fall, when the number of allegations against Cosby had swelled to over 50:
Reading the litany of Cosby accusations can almost start to feel like playing some stomach-churning game of Clue, where instead of choosing a suspect, murder weapon, and room, you fill in the blanks with a vulnerable woman (aspiring model, auditioning actress, young writer), a substance (two white pills, a spiked Coca-Cola, wine she tried to decline) and a secluded location (hotel suite, dressing room, one of Cosby’s homes).
Constand’s case was reopened by prosecutors in mid-2015, with only six months left before the 12-year statute of limitations for aggravated indecent assault would have run out under Pennsylvania law. Cosby was charged on December 30, 2015. Despite repeated efforts to have the case thrown out — including one attempt last October in which Cosby’s attorneys claimed Cosby is “legally blind” and therefore could not “possibly defend himself” — the trial is set for June 5. If convicted, Cosby faces up to 10 years in prison.