By Joseph Ax
NEW YORK (Reuters) – Comedian Bill Cosby faces the latest court hearing this week in his sexual assault case in Pennsylvania, but his attorneys will again try to shift attention to his accuser.
Lawyers for the 78-year-old entertainer are set to ask a judge to throw out the charges leveled by Andrea Constand, who says Cosby drugged and assaulted her at his Philadelphia-area home in 2004.
If the Cosby case proceeds to trial, U.S. media attention will focus once more on the debate over the justice system’s handling of sexual assault cases. The issue was most recently spotlighted in June when there was a national outcry after a judge gave a former Stanford University swimmer a six-month sentence for sexual assault.
Cosby’s defense team has made it clear their trial strategy will be to discredit Constand’s account. On Thursday, his lawyers will argue Constand should have been required to testify at a preliminary hearing in May and face cross-examination.
Accusations of sexual assault from dozens of women have knocked Cosby off his longtime pedestal as one of the most beloved U.S. entertainers. Still, most of the cases are too old to be prosecuted. Constand’s allegations have led to the only criminal charges against Cosby, who has denied ever assaulting anyone and portrayed their encounter as consensual.
‘VICTIMS DON’T BEHAVE THAT WAY’
Cosby’s lawyer, Brian McMonagle, has argued that Constand should have been forced to show up at the May hearing to explain why she waited a year to make her complaint, why she could not recall certain details and why she stayed in touch with Cosby even after the alleged attack.
Experts in sexual trauma say victims often display behavior that appears on the surface to be inconsistent with assault.
“Society still has this expectation that rape victims will behave in one particular way, and we know that victims don’t behave that way,” said Jennifer Long, a former Pennsylvania prosecutor whose nonprofit AEquitas advises prosecutors on sexual assault cases.
Last month, a California judge sparked a national outcry when he sentenced a former Stanford student, Brock Turner, to six months in prison for sexually assaulting a woman. Prosecutors had sought a six-year sentence.
At the sentencing, the victim read a lengthy statement excoriating Turner and asserting she had been victimized again at the trial when his lawyer questioned her story, her sexual history and her behavior. BuzzFeed published the letter and it went viral, garnering millions of views.
ACCUSER’S CREDIBILITY KEY
As recently as eight months ago, prosecutors in the Cosby case would have been barred from calling sexual trauma experts to rebut the argument that Constand’s behavior was inconsistent with an assault.
Pennsylvania was the last U.S. state to allow expert testimony on victim behavior in sexual assault cases to be introduced at trial. In 2012, the state legislature passed a law permitting such evidence, but a trial judge declared it unconstitutional the following year.
In November, the state Supreme Court upheld the statute as lawful.
Pennsylvania still allows juries to consider whether a victim promptly reported a sexual assault as a factor in determining credibility. Long, the former prosecutor, said that can be unfair to victims, who may have to work through feelings of shame and gather the courage to report sexual violence.
“There can be self-blame for the rape,” she said. “There can be a fear of not being believed.”
Similarly, Long said, studies have shown that many sexual assault victims remain in contact with their attackers for a variety of reasons including to reassert control or simply to try to understand what happened.
But defense lawyers insist that those charged with such assaults must be allowed to ask such questions, particularly in a “he said, she said” case where credibility of the accuser and the accused is key.
“Victims can only be victimized by a defense lawyer if there isn’t substantive impeachment material that can be used against them,” said Douglas Sughrue, a Pittsburgh lawyer who is chairman of the Allegheny County Bar Association’s criminal litigation section.
CHALLENGING ‘HEARSAY’ EVIDENCE
Prosecutors at the May preliminary hearing introduced Constand’s description of the alleged attack by calling as witnesses two police detectives who took her statement in 2005.
Constand, a former basketball coach at Cosby’s alma mater Temple University, said the comedian offered her an unidentified pill that left her unable to speak or move, and then assaulted her on his couch.
Prosecutors also presented notes from an interview of Cosby himself, who told police he had given Constand a Benadryl and then engaged in consensual “petting.”
Cosby’s lawyers complained the evidence was improper “hearsay” testimony. Judge Elizabeth McHugh in Montgomery County rejected that objection at the hearing.
Pennsylvania case law permits such evidence at the preliminary stages of a criminal prosecution, though the issue is pending before the state Supreme Court.
Judge Steven O’Neill will consider Cosby’s appeal on the issue at a hearing on Thursday in Montgomery County.
(Reporting by Joseph Ax; Editing by David Gregorio)