A familiar cliche has it that it’s better for 10 guilty men to go free than for one innocent man to be unjustly convicted. The big question is: does that go for Bill Cosby, too?
Following an investigation, it was deemed there was “insufficient credible and admissible evidence” to pursue the case, and charges were dropped. Cosby and Constand later settled a civil lawsuit for $3.38m (€2.85m).
Over the coming years, more than 50 women came forward to make similar allegations that they had been plied with sedatives and then abused by the star when they were powerless to resist. In 2015 Constand’s case was reopened.
The first prosecution led to a mistrial. The second resulted in Cosby receiving a three- to 10-year sentence.
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Last week he was released only two years into his sentence after a ruling that he had not received a fair trial.
Cue public outrage, with prominent women declaring his release to be “horrifying” and “sickening”, and stating this was the reason why many victims don’t come forward at all.
Many of those who had accused Cosby — the “sister survivors”, as they are known — felt betrayed.
They had every right to feel that way. Despite misogynistic myths that unscrupulous women regularly make up stories about innocent men, the harsher truth is most sexual assault goes unreported and unpunished.
Those who do come forward can find the experience as much of a traumatic ordeal as the assault itself. They frequently pay a heavy price for simply telling the truth.
But the question remains: if courts of appeal are there to protect individuals from misuse of power by the criminal justice system, then does that stop being true just because Cosby may be a very bad man?
The star was released because it was found he had reached an agreement with the original prosecutor in 2005 that he would not be charged with the same offence again, and that evidence he gave back then in a civil disposition could not subsequently be used against him.
For most lay people, the fact such legal minutiae can be used to overturn a guilty verdict in a horrific case like this will cause them a considerable amount of moral discomfort.
Surely all that matters is whether he’s guilty or innocent of drugging and assaulting women? But these constitutional safeguards are there for a reason, and can’t just be disregarded when they become inconvenient.
What’s odd is how people who are apparently happy for murderers, terrorists and other serious criminals to be released on technicalities develop moral qualms when it comes to rape and other forms of sexual abuse.
One can share every bit of their dismay at the way the law is routinely manipulated by lawyers to help shifty and obscenely rich clients wriggle off the hook, while still wondering why they’re not equally outraged when people who have allegedly committed serious offences avail of the same legal sleights of hand.
Criminals game the system all the time. Solicitors and barristers do very well out of it. South Dublin is full of large, detached period properties bought off the proceeds.
Still, so-called “human rights lawyers” are feted despite consistently using technicalities of the law to the benefit of some of the most dangerous people imaginable, while the prosecutor who cut a deal with Cosby’s lawyers back in 2005 is now vilified.
Earlier this year a British MP highlighted how foreign criminals were exploiting human rights legislation to avoid deportation after serving their sentences. Rarely do those who see themselves as belonging on the liberal left express the same outrage at the misuse of legal loopholes in such cases — even though the consequences can be devastating.
Some of these people have gone on to commit rape and murder. That’s a direct result of placing the principle that it’s better to release 10 guilty men than send an innocent one to jail above the rights of past — and potentially future — victims. When it’s Cosby, all of a sudden it’s a scandal that must be loudly protested.
Disquiet at his release is justified. Cosby has always maintained his innocence, but he did make previous incriminating statements about his use of sedatives on women for the purposes of sex.
Even if he hadn’t, the testimony of dozens of credible women should still be enough to convince even the most dogged devil’s advocate that he had, and has, a case to answer.
Sadly, though, the law is imperfect, messy. It can’t fix what’s wrong with a broken world. It just puts sticking plaster on the festering wounds. Maybe we expect too much of it.
Cosby’s conviction came right at the start of the MeToo movement, before film producer Harvey Weinstein stood trial. It felt like a huge moment.
“Finally women are believed,” said the lawyer who represented many of his accusers. Actress Rose McGowan, who made rape allegations against Weinstein, said: “Thank you society for waking up.” The co-founder of the MeToo movement said the verdict made her cry.
But if corners were indeed cut in the effort to secure justice against predatory men, then perhaps the most important lesson is to ensure the highest standards of legal integrity are upheld, even — perhaps especially — when the public mood has been outraged, rather than conclude that it’s acceptable to cut corners if the end result betters society as a whole.
MeToo took on an asymmetric system of power that had allowed many wealthy and powerful men to escape being held accountable for their treatment of women far below them on the ladder. If some innocent men were caught up in the crossfire, then that was accepted as necessary collateral damage. That wasn’t right either.
Cosby’s release is just the other side of that coin. Sloppiness too often allows the guilty to walk free, as well as making victims of the innocent.
This isn’t the end of the fight. If anything, it should only just be beginning. There’s still a long way to go, but it should definitely act as a pause to reconsider the next way forward.
It has long been the case that loopholes in the law needed to be closed so bad people cannot continue to get off on serious charges on what look to most reasonable-minded people as pettifogging technicalities.
But it must be done consistently, not just in cases which involve celebrities or which attract massive media attention — or which tick certain boxes, politically or ideologically.
The fight must also continue through a loud and unwavering public discourse, as well as in the courts.
Victims deserve nothing less.
As Senator Joe Lieberman said when he was campaigning as US presidential candidate Al Gore’s running mate back in the 2000 election: “If you show too much mercy to those who are cruel, you end up being cruel to those who deserve mercy.”