Bill Cosby was a television dad and husband who stood for what was right. He spoke out for good values and was honored by various colleges and universities. Our society regarded him as a fine person, a model citizen.
Now he is something different, a person widely reviled for taking advantage of countless women.
The courts exist to protect everyone, and that includes Bill Cosby. Last October a Massachusetts federal judge ruled that a defamation case brought against him by three women could go forward. They say that Cosby damaged their reputations when his representatives denied their allegations of sexual misconduct. On January 21, a judge in Pennsylvania went the other way and threw out a defamation case brought against him by one of his accusers. As in Massachusetts, Cosby had denied her molestation charges, and she argued that he was defaming her character by calling her a liar.
In my view, the Pennsylvania judge has the better of the argument. The presumption of innocence is part of the criminal law, not civil, but the women suing Cosby must still meet their burden of proof. That means they must show by a “preponderance of the evidence” (meaning more likely than not) that what they say happened did, in fact, happen. Cosby, like anyone being sued, has a legal right to rely on this legal requirement. If that were not true, anyone being sued in a civil matter would be left in the impossible situation of having to remain silent (outside the courtroom) in the first case for fear of prompting a libel or slander case based on denying the accusations made against him. The law should not require such a choice.
Now comes the latest twist in the Cosby saga, the only criminal case brought against him, On Tuesday, Groundhog Day, Cosby’s lawyers argued that the court in Pennsylvania should lift that shadow and dismiss the case. The motion was based on a supposed 2005 verbal agreement between Cosby and the former District Attorney, who told the judge that he didn’t believe he had enough evidence back then to bring charges against Cosby. According to his testimony, he hoped that Cosby would not plead the Fifth Amendment in a civil case brought against him by a woman named Andrea Costand. He wanted to help make Ms. Costand a “millionaire,” he said, and intended his assurances to last “for all time.”
Cosby did give a deposition in Ms. Costand’s case admitting to sexual acts with several women after feeding them Quaaludes. That case was settled for an undisclosed amount..
On Wednesday, the day after Groundhog Day, the judge ruled that the sexual assault case can proceed. He had tipped his hand during the hearing when he referred to the absence of any witness to the promise not to prosecute, apparently unconvinced by what the former prosecutor had said under oath.
The judge ruled correctly, but it shouldn’t matter whether such a promise was or was not made. The law has long recognized something called the “statute of frauds,” which says that if an agreement can’t be performed within one year, then verbal isn’t enough—it has to be in writing. That doctrine may not be directly applicable here, but the analogy is pretty close.
Another reason why the promise shouldn’t matter is that contracts, whether verbal or written, require “consideration,” meaning a quid pro quo. Here, it’s hard to see what the state got back in 2005, other than the prosecutor’s personal desire to help one of Cosby’s victims. That should not be enough to get Cosby off the hook. His lawyer at the time, now deceased, could have insisted on an enforceable document, signed by both sides, but apparently chose not to do so.
That does leave a problem. A decade ago, Cosby may well have relied on the DA’s verbal assurances when he incriminated himself and testified to his improprieties. Fairness should keep those deposition admissions out of the criminal case. That would strike the proper balance and leave Pennsylvania with the obligation to prove guilt beyond a reasonable doubt.
Whether it can meet that burden remains to be seen. Meanwhile, Cosby’s winter just got a lot longer.