We Asked a Lawyer How Bill Cosby Is Going to Fight His Sexual Assault Charges

Bill Cosby was on Wednesday for a decade-old sexual assault case in Pennsylvania that started the controversy consuming his career. The alleged victim is a former Temple University employee named Andrea Constand, who has long claimed that the world-famous comedian molested her in 2004 after handing her some blue pills and instructing her to take them with wine.

formally charged

This past July, a long deposition from Constand's civil suit against Cosby was unsealed, and in it, he admitted to using Quaaludes to get women to become more amenable to his sexual advances. Dozens of women have come forward to say they had similar experiences, and Constand's outstanding accusation—the first officially levied against Cosby—became a hot-button political issue in suburban Philadelphia, and across the country. The charges were finally filed just days before the statute of limitations was set to expire in the Constand case. (Many of the other allegations against Cosby concern incidents where the statue of limitations have run out.)

That such a high-profile alleged serial rapist is finally facing criminal charges seems like a positive development. But does Cosby looking at the possibility of jail time mean anything for the 50-plus other women who have accused him of assault? And what are the chances he actually winds up behind bars? We spoke to Stuart Slotnick, a New York defense attorney, about what might happen next in the Cosby saga, and how his criminal case is likely to play out in court.

VICE: So what do these charges in Pennsylvania mean for the dozens of other women who have made similar accusations against Bill Cosby? Will there be more criminal charges forthcoming, and will this force other prosecutors to reexamine old cases?
Stuart Slotnick: I don't think that these charges have anything to do with what could happen with other cases where the plaintiffs made allegations against Bill Cosby. The reason is because in many of the cases, the statute of limitations has run out. That means the prosecutor cannot bring a case even if they want to bring a case. This particular case was looked at about ten years ago and the prosecutor [essentially] said, "I've examined this, and I don't want to bring the case." That was a discretion call. Now there are prosecutors that might want to prosecute Bill Cosby but can't, because they're barred by the statute of limitations.

So many, if not most of the cases are barred [from going to criminal trial]. And in other cases, if there are cases that fall within the statute of limitations, there is no doubt that they will be examined closely by prosecutors. But I don't think it should have any impact on what a prosecutor does. Just because someone has been prosecuted in one jurisdiction does not mean they will be prosecuted in another.

Well, even if there aren't more charges, will Cosby be able to get a fair trial? The sheer number of women will certainly be in the back of any juror's mind, right?
That's a really good question, because anyone who has been living in the United States has been hearing about the parade of horribles related to Bill Cosby. There's no getting around it, unless you live in a cave. He needs to find jurors who will promise that they will be fair and impartial and disregard everything they've read and seen on TV. And that could happen. It's not gonna be easy, but that's his lawyer's job. Sometimes jurors go in and wanna sit on the jury, particularly in a celebrity case. There are many people who want to sit on this trial and will claim they are fair and impartial while they're not.

What will the defense's strategy be in this case?
There is no question that the defense will say that he had sex with Constand and it was consensual. There is no question that they will say that Bill Cosby is a target, that he is a victim of a political witch-hunt, and that he is a victim of extortion by the complainant, who was really seeking money in this case.

There was one district attorney who is the head prosecutor of Montgomery County, whose office originally got the complaint about Cosby and closed the case. The last election, the candidate who ran for district attorney criticized him and said he didn't prosecute Cosby and was weak on crime. They're gonna say this was a campaign promise from someone who knew nothing about the case because he was just a candidate. [Editor's note: In fact, Cosby's attorneys did that very thing on Wednesday, around the same time this was conducted.]

They'll also point to the fact that the allegations were examined when they were made—a time when there was no press about it. There was no pressure. Today, it's a very different situation. There's been tremendous media, and some may argue that translates to pressure on a district attorney to prosecute Bill Cosby.

Does Cosby's counter defamation suit against women who accused him of defamation (and sexual assault) affect the criminal case, or is that irrelevant?
I think it does, because he has maintained his innocence rather than just silently trying to make it go away. He's suing people, and the defense will wanna bring that up. Because you know what a defamation case does? It only republishes what you didn't want to be out in public in the first place. So why would someone do that? He knew when he sued these women that it was gonna create a whole new area of press and publication and put it out there again instead of letting it go away. The inference is that he's defending himself against false allegations, and it will no doubt be brought up at trial.

On the flip side, how can the prosecution prove that this assault happened? The night in question was more than a decade ago, so doesn't it just come down to he-said-she-said?
You know, there's two bits of evidence at this point. The first piece is the complainant's testimony. That is enough to convict for these crimes. However, they have more. They have the deposition testimony of Bill Cosby discussing the use of Quaaludes and discussing the fact that he had sex with her—although he said it was consensual and the prosecution says she couldn't consent because she was so intoxicated.

The problem is there's no physical evidence or DNA, which jurors nowadays expect to see. They watch TV. They know all about saliva, they know about Monica Lewinsky's dress. That evidence in a case that's very old probably doesn't exist.

Another issue for the prosecution, by the way, is that there are prior statements in which the complainant said nothing happened on days in which she's now saying something did happen.

I'm assuming the defense will also harp on the fact that Cosby tried to have sex with Constand before the alleged assault and she kept spending time with him.
It's an obvious argument to make that if somebody is making aggressive sexual advances towards you, then you stop going to their house. When someone reaches over and unbuttons your pants and you are so freaked out that you leave, but then you go back to their house on another date… The prosecution's theory is also not that he drugged her by slipping something into her drink, but that he offered her pills and said, "Here, take these." The prosecution has to prove this thing beyond a reasonable doubt, and facts like these raise questions.

I would also think that the prosecution could just argue that she's gay and therefore couldn't be interested in Cosby, but then again, how do you legally prove that?
That is a great point for the prosecution, because if she testifies and says it's not consensual, she can say she had no interest in him. But you can't [prove that legally]. The question the defense will bring is, "Did you ever have a boyfriend? Did you ever have sex with a man before?" and if the answer is yes to any of those questions, it may raise issues with the jury. Because we've seen reports that she's gay, but then it becomes, "Is she bisexual? Was there a point in time that she wasn't out of the closet or aware of her feelings?"

Let me tell you something: Investigators are going to be interviewing her friends from high school to find out if she ever had a boyfriend.

So what does Cosby face if he's convicted of this, and does the fact that so many people have accused him affect how sentencing will go?
It's up to ten years. And [the other allegations] could affect sentencing. If he's convicted of this case, then the prosecution will argue that it's not an one-off incident, and he's a sexual predator, and you should consider this while sentencing him.

Bill Cosby should be concerned, because the prosecution might try to bring in other complainants. And even though he's not charged with sexually assaulting the other complainants, there is a body of law that allows prosecutors to bring in uncharged alleged crimes to show that it's a common scheme or plan—or a modus operandi, an MO. So I can guarantee they will try to bring in other people to testify and say, "He called me up under the guise of an audition, he gave me alcohol and pills, my vision went blurry, and the next thing I knew I was naked and it was hours later."

If they can get that evidence in, it's very damning.

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