When news broke Wednesday the Pennsylvania Supreme Court overturned Bill Cosby’s sexual assault conviction and he would be released from prison, early coverage honed in on the five accusers whose testimony helped support his conviction over the 2004 rape of Andrea Constand.
According to the Associated Press, “The Pennsylvania Supreme Court said that testimony tainted the trial, even though a lower appeals court had found it appropriate to show a signature pattern of drugging and molesting women.” That’s true — however, the state’s high court didn’t even consider that issue in deciding to overturn Cosby’s conviction.
Cosby’s lawyers filed an appeal that made two arguments: One surrounded the admissibility of those accusers’ testimonies — so-called “prior bad act” evidence — and another was based on a former district attorney’s 2005 promise not to prosecute Cosby in exchange for testimony in an earlier civil case. However, the state Supreme Court considered only the second argument and found that the agreement shielded him from prosecution and and “accordingly, we do not address Cosby’s other issue” — i.e., the testimony.
That distinction is critical. If the court had overturned Cosby’s case based on the additional testimony, it could have set precedent that would make it more difficult to prove sexual misconduct allegations, at least in Pennsylvania courts.
“I saw some reporting that I think does misinterpret the issue, having to do with other prior bad-act witnesses,” attorney Gloria Allred said during a press conference Wednesday. “Even though the decision … seemed to indicate that they felt that the testimony of prior bad act witnesses may have tainted the trial … they didn’t decide the case based on that and they were clear on that. I do hope and expect other witnesses will come forward to testify” in other sexual misconduct cases.
Allred represented accusers in both the Cosby and Harvey Weinstein cases. Both cases relied on testimony from accusers — ones who are not officially part of the main case — that helped elevate accusations from he-said-she-said by placing them into a broader pattern of sexual misconduct.
Long before the Me Too movement was named, this testimony was referred to as “me too,” Molineux, or prior bad act evidence. Attorney Lee Feldman, who specializes in California civil sexual harassment cases, said he’s seen an increase over the last two decades in judges’ willingness to accept this evidence.
“Because of the Me Too movement, this kind of evidence to corroborate someone’s story, it’s become much more accepted by the public and therefore much more difficult for judges to say … ‘I’m not going to allow it in my courtroom,'” he said.
Victim advocates say the fact that Cosby has been freed from jail based on the agreement issue — rather than on the merits of the case — will discourage survivors of sexual misconduct to come forward. Entertainment attorney and former Hollywood Reporter journalist Jonathan Handel says sloppy reporting could make that even worse.
“The unfortunate part of the rush to press coverage was people read the top of Page 1 (of the court decision) but not the bottom of it,” he said. “I do have some discomfort and fear that some victims in the future will feel, ‘Well, the heck with it, the courts aren’t sympathetic.’ The race for immediacy, the race to be the first to report, it’s the world we live in now, but it can be very much to the detriment of nuance and context.”
Allred said she’s hopeful that victims will continue to come forward. And while she doesn’t count the Cosby decision as a win, she sees a silver lining in regards to a civil case she’s litigating against Cosby in Los Angeles County.
“Now, Mr. Cosby will not be able to invoke his Fifth Amendment privilege against self incrimination — translating that in plain English, he will be required to answer our questions under oath” because he’s not in jeopardy of being criminally prosecuted, she said. “That’s actually beneficial to us and that’s why I’m looking forward to taking his deposition and really getting all the answers that we seek.”
Allred said she does expect “me too” witnesses to be an ongoing battle; arguments against the admissibility of such testimony is part of Weinstein’s appeal.