Specializing in the representation of crime victims, women and children.


By Wendy Murphy    Jun. 17, 2017

A hung jury is as good as an acquittal for Bill Cosby, and it is unlikely that any jury will ever convict Bill Cosby of sexual assault under Pennsylvania law, for two basic reasons:

  1. Rape law in Pennsylvania is among the worst in the nation because it permits many types of rape to occur with impunity, and significantly favors rapists.
  2. The jury selection process allows more rapists, and fewer rape victims, to serve as jurors in rape trials.


Andrea Constand was a very credible witness. She was by all accounts poised, and sincere, and her demeanor was consistent with that of a person of integrity. Bill Cosby took the Fifth. His lawyers made much of Ms. Constand’s mistakes on things like dates and phone calls, but her testimony about the sexual violence she suffered was clearly credible – in part because it was corroborated by Cosby himself, who testified in a civil lawsuit years ago that he did, in fact, drug Ms. Constand before imposing himself sexually on her body. In short, the only factual issue in dispute in the case was whether Ms. Constand consented, and on that critical issue Ms. Constand was very clear. She did not consent, period. The defense produced no evidence showing that Ms. Constand changed her statements about consent, or at any time told anyone that what Cosby did to her was consensual.

Hardly a "he-said she-said" as many commentators have claimed, the Cosby trial was a "she-said, he basically confessed," but it still won’t be enough to convict because the law in Pennsylvania is terrible for women and excellent for rapists who drug their victims.

Cosby was charged with three different types of sexual assault. One charge required proof that Constand was "unconscious" or "asleep" during the assault, but she testified that she was awake, albeit "frozen," paralyzed, and unable to move her body. Paralyzed is not the same as unconscious, and if she was violated again when she lost consciousness, which may well be true, there is no evidence of that crime, obviously, because an unconscious victim cannot testify about what happened when she was unconscious.


A second drug-related charge required proof that Cosby "substantially impaired" Constand’s ability to "appraise or control" her conduct by "administering" drugs or intoxicants "without [her] knowledge." This charge was not provable beyond a reasonable doubt because Constand and Cosby both acknowledged that Cosby provided the drugs openly, and Constand consumed them willingly. That he then pushed her to drink a glass of wine suggests he also put something in her drink, but no such evidence was produced.

It was helpful to the prosecution’s case that Cosby made damning statements to Constand’s mother, essentially admitting that he had intentionally harmed Constand. He also made several inconsistent statements about the drugs. On one occasion he said the pills were herbal. Another time he said they were from a prescription bottle, and in a third statement, he said they were over-the-counter Benadryl. And he made a weird statement about not penetrating the victim with his penis "asleep or awake," which is a protest-too-much thing to say, and implies a sense of guilt about what he did do when Constand was unconscious, but again, an implication is not much evidence.

The prosecutor argued that Constand’s testimony was bolstered by Cosby’s admission that he had a habit of intentionally using Quaaludes to sedate women for sex, but Quaaludes are white, and the pills the victim took in Pennsylvania were blue. A reasonable person could infer that the pill’s blue color, along with the victim’s behavioral symptoms (vision problems, "rubbery" feeling, and loss of control over her body 20 minutes after taking the pills) indicate that the pills were probably benzodiazepines, which are commonly used as rape drugs, but other than color, there’s no proof they were benzos. Cosby himself said (during one of several lies) that the pills were Benadryl, which is also used as a rape drug, especially on college campuses and in combination with NyQuil, which can cause paralysis and unconsciousness. Still, lack of clarity about what the pills were is not sufficient proof that Constand was incapacitated "without her knowledge."

In states other than Pennsylvania, the law is much better for victims because proof of drugging without the victim’s knowledge is not required. The focus in most states is simply whether the victim had sufficient capacity to make a decision about giving someone sexual access to their body, regardless of whether the victim took drugs herself, or was secretly administered drugs by another. This approach appropriately recognizes that lots of people, men and women alike, choose to become intoxicated but do not also choose to be raped.

The law recognizes this simple concept in analogous circumstances. If a thief gives drugs to a man in a bar, then steals his wallet, the thief will be prosecuted for larceny, and the defense cannot argue that the offender had a right to take the money on the grounds that the victim did not object after becoming incapacitated. Similarly, if police give a suspect drugs before reading him his Miranda rights, the police cannot then argue that the suspect, while under the influence of those drugs, lawfully waived his Miranda rights. These laws recognize that important decisions in life have to be made knowingly, and voluntarily. If the law can protect drugged larceny victims and murder suspects, it can protect drugged women because women’s bodies are at least as important as money and Miranda rights.

But the law in Pennsylvania subjugates the value of women’s bodies, and blames intoxicated women for the actions of the men who rape them, by criminalizing drug-facilitated rape only when the victim is unconscious, or when the drugging occurs surreptitiously, irrespective of the fact that the victim lacked capacity to consent.

The third charge against Cosby alleged nonconsensual sexual assault, and is the only charge the prosecution could have proved, simply because Constand testified that she did not consent. However,the law in Pennsylvania, unlike most states, allows rapists to then argue that they mistakenly thought the drugged victim was consenting because she did not say no or otherwise express non-consent with her body. That a victim is motionless because of drugs is largely irrelevant under this charge.

The jury selection process in Pennsylvania only adds to the law’s problems for victims because potential jurors may be asked whether they or anyone close to them has ever been victimized by sexual assault, even if the assault was never reported or prosecuted, but potential jurors may not be asked whether they or anyone close to them has ever committed a sexual assault. Jurors must reveal whether they have been convicted of sexual assault, but only a small percentage of sexual assaults lead to criminal charges, much less conviction. In short, while there is no evidence that any of the jurors had a history of sexual assault, the jury selection process in Pennsylvania generally excludes victims and includes offenders.

Even though Cosby can count this as a win, the fact that he has been criminally prosecuted is its own victory given the guy’s many layers of social Teflon. His wealth, race, celebrity, and reputation for being a good man (false as it was) have insulated him from accountability for a very long time.

Contrary to the claims of Cosby’s supporters, the case had nothing to do with race. The case was about gender – gender-based violence – and Cosby’s sociopathic exercise of privilege to violently and sexually abuse dozens of women, with impunity.

Because Pennsylvania law is so bad for victims, advocates would be wise to get protests going in different states, and demand that prosecutors file new charges in other cases. States like Michigan, Illinois, New Jersey, and Georgia, for example, still have viable criminal cases against Cosby because either there is no time limit on prosecution, or the statute of limitations clock stopped running because Cosby was not "usually and publicly" residing in those states.

Prosecutors who don’t file charges in those states may lose the next election. Just ask the guy in Pennsylvania who lost his re-election bid in 2014 after refusing to file charges against Cosby in 2005, and the guy who beat him campaigned on a promise to do justice for Cosby’s victims.

Cosby has hurt too many women to be allowed to walk away scot-free. Women must rise up together, and angrily reject injustice because a sexual assault of one woman is a sexual assault of all women.

Women should use this moment in time to demand changes in the law in Pennsylvania, and help the public understand why violence against women is the natural byproduct of women’s constitutional inequality in America.

The pervasive unequal protection of women’s bodies, in Pennsylvania and elsewhere, will continue unabated unless women come together, across all lines, to get the Equal Rights Amendment passed in this country. Many studies show that the rates of violence against women are lower in countries where women have full constitutional equality.

Bill Cosby has prevailed for now, but the silver lining may be that his vile behavior brings women together again for the first time in decades. If Bill Cosby’s abuse of women becomes the catalyst that establishes women’s full constitutional equality once and for all, every one of his victims can claim victory, even though no jury ever declares the man guilty in a court of law.

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