Despite Bill Cosby's sheer number of accusers, at first many Cosby friends and fans found their allegations hard to believe. Not Dr. Heathcliff Huxtable! Then a judge unsealed a court document. In it, Cosby admits to procuring Quaaludes and intending to drug women for sex. Now, most find the allegations hard to deny.
Yet, many find it shocking to read that Cosby's dozens of accusers have no legal remedy. Although nearly forty women accuse Cosby of being a rapist in multiple states across the United States and even in Canada, the statute of limitations for criminal actions has run in just about every state.
The statute of limitations in criminal actions was created for several reasons. The main reason is that evidence deteriorates over time. Over the years, several exceptions arose to toll the statute. In sex abuse cases, there is an interesting tolling provision in some states called delayed discovery. The exception recognizes the psychological effects of sex abuse. If a victim represses his or her memories, the statute will start to run again when the victim consciously remembers what happened. The rule is incredibly strict. If a victim shows that he or she had any knowledge whatsoever that something wrong occurred at the time of the crime or shortly thereafter, this exception will not delay the statute. It only applies to people who completely repress their memories. Once a victim realizes the abuse, there is usually about three years to file a claim, depending on the state. Most of Cosby's accusers say they realized they had been raped shortly after it allegedly occurred; so delayed discovery would not apply to any of them.
The Cosby show was filmed in New York and many of Cosby's accusers are from New York. Interestingly, in 2006 New York abolished the statute of limitations on sex crimes. However, the old statutes in place when the crimes allegedly occurred are what govern, which is why Cosby's accusers in New York can't file claims.
But, the fact that states are doing away with statutes of limitations on sex crimes demonstrates a widespread recognition that the statutes are unjust. Many victims of sex abuse are ashamed, traumatized and in some cases too intimidated to come forward for several years, sometimes decades. Furthermore, the thought of confronting their abusers in court is also a deterrent. Often abusers are either close family members or people in a position of power, who use their power to intimidate victims. Giving sex abuse victims only a few years to file a claim, ignores the intensely psychological and circumstantial factors that prevent them from coming forward in the first place. Even if victims do eventually come forward, there is often a he said, she said dilemma. Many victims do not immediately go to a hospital to preserve physical evidence, which makes these cases very difficult to prosecute.
However, in a case like Cosby's where we now have an unsealed court document that may act as a corroborating piece of evidence and lend credibility to some of the stories, there should be a remedy for these women to have their day in court. In this latest document, made public by the Associated Press, Cosby admits to procuring Quaaludes, which were outlawed in 1984. He says he held onto the prescriptions for the purposes of giving them to women to have sex. This brings me to a very important question, why isn't the Department of Justice bringing a federal criminal case against Cosby for serial rape? He is being accused of raping dozens of women in several states. There is no statute of limitations on sex abuse cases in federal court, so every one of these women could have their claims heard in one suit. Furthermore, the allegations fall under the definition of sex abuse for federal purposes. The statute in title 18 of the U.S. Code, section 109A reads, in part, that whoever "causes another person to engage in a sexual act by threatening or placing that other person in fear ....or engages in a sexual act with another person if that other person is ...physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act; or attempts to do so, shall be fined under this title and imprisoned for any term of years or for life." The minimum sentence is typically twenty years to life for federal sex abuse crimes. Almost all of Cosby's accusers say he rendered them physically helpless by drugging them and then raped them. Several women claim they were minors at the time.
Typically sex abuse is tried at the state level and states retain jurisdiction. However, if I were prosecuting this case, I would argue that the statutes of limitations at the state level violate the plaintiffs' constitutional rights to due process. The Fourteenth Amendment says that no state shall deprive anyone of life, liberty or property without due process of law. Prosecutors should use this lack of due process at the state level, to get federal jurisdiction and try Cosby as a serial rapist. Yes, there is a lack of evidence in most of the cases, however, that doesn't mean there isn't any evidence. Dozens of women can testify. One of Cosby's accusers in Los Angeles claims that she was raped at the Playboy mansion and drugged in front of Hugh Hefner, who should be subpoenaed as a witness. All of these claims should be investigated for further relevant evidence. The most powerful piece of evidence is that unsealed court document from the case Cosby settled. His sworn testimony, admitting that he acquired Quaaludes for the purpose of drugging women for sex, is incriminating. Maybe prosecutors can even call that famous obstetrician, Dr. Heathcliff Huxtable as an expert witness. We still don't know if more evidence and other potential accusers are out there. A federal case could encourage others to come forward. At the very least, these women should have their day in court.