Bill Cosby is a free man, for now anyway, because a jury never could agree on whether one of TV’s most comforting dads drugged and sexually assaulted Andrea Constand at his mansion outside Philadelphia in 2004.
Of course, Cosby had a lot going for him, in and outside the courtroom: a loud celebrity lawyer, a smiling, first-and-only wife who showed up when it mattered, and most crucially of all, Pennsylvania’s 12-year statute of limitations.
Constand is the only one of the comedian’s more than 40 accusers whose report has led to a criminal trial because in all of the other cases, the statute of limitations had already expired.
Though the prosecution wanted to put a dozen of the others who have said he drugged and/or violated them on the stand, the judge allowed the jury to hear from only one of them.
The comedian’s defense attorney, Brian McMonagle, offered a classic, off-the-rack depiction of 44-year-old Constand as a fabulist and willing participant on the “romantic” night he gave her pills “to relax” and then “danced outside [his] marriage.” At the time, she was working for the women’s basketball program at his alma mater, Temple University, where he was not just a revered alumni but a trustee.
There was one twist on the standard defense: Because Constand is gay and was in a relationship with a woman at the time of the assault, McMonagle told the jury that, well, she isn’t as gay as she claims.
And in a statement as unnaturally sweet and sticky as a Jell-O pudding pop, the defense attorney argued that even the best dads aren’t perfect. “We try to be, but we’re not ... sometimes we’re wrong.” Jurors thus no longer saw the defendant, who is 79 and legally blind, with “the adoring eyes of children ... I told you that when you look over here, you’ll see different things: You’ll see a great comedian, an artist, who taught us not only how to smile but how to love.”
Looking at Cosby, who thankfully did not teach me how to smile or how to love, I saw not good old Cliff Huxtable from “The Cosby Show,” but a man accused by dozens of women across the decades. Those women, and in fact all other sexual assault victims and their supporters, were put on trial by the defense, too. “We know why we’re here,’’ McMonagle told the jury. “Let’s be real ... We’re not here because of Andrea Constand. We’re here because of them,” he said, shouting and pointing at the back of the courtroom, where other accusers were sitting.
I also looked at Cosby and saw a man who in some ways is still one lucky guy — still supported by his wife of 54 years, Camille, and to a remarkable extent, spared the national avalanche of attention that his trial would normally have attracted by all the high drama surrounding the self-proclaimed p___-grabber in the White House.
Some of those who would otherwise have been following the testimony avidly and asking why Constand saw and kept calling Cosby after the assault — that was part of her job, she said — were instead following the testimony of fired former FBI Director James Comey and questioning why, if Comey didn’t want to be left alone in a room with President Donald Trump, he kept talking to him on the phone.
Whatever happens now with Constand’s case — whether prosectors retry the case, or they don’t — the most important question that the trial leaves unanswered is this: When are we going to update our antiquated statutes of limitations — legal limits that a modern understanding of sexual assault should have forced us to rethink decades ago?
Last year, California scrapped its statute of limitations on sex crimes altogether, and Nevada and Colorado extended theirs to 20 years. Let’s hope other states follow.
It isn’t only that it can take a long time for victims to come forward and report an attack, but that to some extent, public attitudes on rape and assault have shifted in recent years. Constand first reported Cosby to police in 2005 and got nowhere, not because detectives didn’t believe her, but because her case didn’t seem winnable.
Many prosecutors still agree to try only the sexual assault and rape cases that they know they can win. But it’s a double bind to say both that years ago we would never have taken that case, and now that we might, it happened too long ago for us to even consider it. That so many reports of wrongdoing netted only one criminal case against Cosby shows just how badly these laws need to be changed.
This column first appeared in USA Today.