More than a few people have asked me over the past ten days or so, what I think of the rape allegations being made against actor Bill Cosby, and what I think should be done about them.
This is a good question, because several of the accusations involve a mix of factors that can make a successful prosecution in this type of case very difficult. Those factors include the following:
• A lack of credible witnesses.
• A lack of forensic (scientific) evidence, in the form of semen and other bodily fluids, which are collected as part of a “rape kit” that almost all hospital Emergency Departments and Primary Care doctors use when an allegation of rape has been made. This includes an examination of the orifices (vagina, mouth, anus) that have allegedly been penetrated, together with tissue samples from the affected areas.
• The absence of a SAIN (Sexual Assault Intervention Network) Interview. This is a law enforcement protocol that allows for one police interview of the alleged victim to be shared across several law enforcement agencies (the investigating Police Department, the District Attorney’s Office, the State Police, the Medical Examiner’s Office, and if necessary federal agencies such as the FBI and ICE (Immigrations & Customs Enforcement.) This protocol documents the results of a trained police officer’s interview with the alleged victim, and spares the alleged victim from the need to be interviewed multiple times by multiple law enforcement agencies and personnel.
• A lack of photographic evidence, either of the scene of the alleged crime or of the victim’s body (see above.)
• And most importantly, the expiration of most Statutes of Limitations applicable where the alleged sexual assaults and rapes took place. It is my understanding that the Cosby alleged sexual assaults took place in several states, including New York. While each state has its own statutory period beyond which a prosecution for rape and sexual assault cannot be brought forward, most states have 15- to 20- year statutory periods of limitations.
As of the date of this post, it’s my understanding that most of these allegations from the women that have come forward so far, involve sexual assaults that allegedly took place more than 20 years ago. If this is accurate, then in my professional opinion as a Boston sex assault attorney that successful prosecution of these cases is going to be extremely difficult. That doesn’t mean Mr. Cosby is factually innocent of these allegations. In fact, I think that it’s highly unlikely that these several women have all come forward with these almost identical accusations, and that none of them is telling the truth. The fact that I am a Massachusetts sex charges lawyer, doesn’t mean that I can’t admit that ‘where there’s smoke, there’s fire.’ And it certainly doesn’t mean that Mr. Cosby isn’t going to need top-flight legal talent representing him – whether in the court of public opinion or a court of law. But as of right now, I think most of the damage that Cosby is going to suffer is going to be reputational and financial.
These allegations, and the prosecutorial difficulties raised by the statutes of limitations involved, have raised new debates about whether states should abolish or revise statutes of limitations in rape and other sexual assault cases. I’ve been a Norfolk County rape defense lawyer a long time, and I’ve seen a lot of these cases. I think that extreme care should be used before tampering with these statutes. They were created for good reasons: Massachusetts rape and sexual assault accusations, like those anywhere, can devastate an innocent person’s life. They are a “special breed” of crimes, and are the type that should be investigated and resolved as promptly as possible, not left open to accuse someone of, ‘forever.’