Why The Bill Cosby Lawsuit Fills Me With Hope

Clearly, I'd be happier if there weren't over 45 women alleging that this superstar drugged and raped them -- but what's going on in the civil and criminal cases against the former Dr. Huxtable is heartening for those of us in the legal world.
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Clearly, I'd be happier if there weren't over 45 women alleging that this superstar drugged and raped them -- but what's going on in the civil and criminal cases against the former Dr. Huxtable is heartening for those of us in the legal world.

Accusations against Bill Cosby have arrived at just the right time. Now, in the wake of terrifying documentaries like The Hunting Ground, and public battles over the Safe Campus Act and the Campus Accountability and Safety Act, people are paying closer attention to the way sex crimes are investigated and prosecuted. The civil defamation suit against Cosby along with the tandem criminal prosecution for sexual assault is creating unusual legal and policy issues that, because of Cosby's notoriety, the public is scrutinizing.

Here's what I'm seeing:

1. Everyone thinks the statute of limitations creates an unfair loophole. Usually, people like the idea of statutes of limitations, particularly with regard to criminal matters. After all, we don't want the cops to show up on our doorstep to investigate something that happened 25 years ago. The evidence would be old and unreliable and it wouldn't be fair to ask us to defend ourselves against accusations about things we couldn't possibly remember clearly. That was the logic I learned back in law school, and yet, public opinion seems to have changed quite a bit since then.

Now, even those people who believe Cosby to be innocent agree that if he had raped someone back during his pudding-pop days, he shouldn't go free just because a statute of limitations had run. Twelve years ago wasn't that long ago. For rape victims, I'm sure their trauma seems like it happened yesterday. The public outrage over the 12-year statute of limitations for sexual assault indicates a general consensus that rape is too serious a crime to warrant such a short prosecutorial window.

2. The Federal Court refused to allow Camilla Cosby to avoid testifying by invoking "spousal privilege." This is big, people. Under most state and federal laws, spouses are shielded from any requirement to testify against one another in lawsuits by the "spousal testimonial privilege."

The thought process has always been that unless we're talking about a divorce or custody case, spouses should never be required to speak in open court about one another, because doing so could destroy the very fabric of the marriage. I couldn't agree more. There's not a lot that could destroy a marriage as quickly as one spouse being asked to testify about the extent to which the other is a creep. Yet, last week, a federal magistrate judge in Massachusetts ruled that Camille Cosby must give testimony about a whole heap of topics as part of a civil defamation suit against her husband.

The judge's message was pretty clear: "Okay Cosbys, whatever bizarre glue holds together your marriage isn't my concern. It's far more important to get to the truth of seven women's allegations of rape." In the legal world, marriage is considered sacrosanct. Spousal privilege and its evidentiary cousin, the marital communications privilege, have often been a problem for prosecutors handling everything from child abuse to racketeering cases. A ruling against Camille Cosby asserting her spousal privilege is a sign of the times: protecting victims of violence is simply more important than protecting marriage. Camille has appealed the magistrate's ruling about her deposition, and while that appeal is pending, her deposition is being delayed; there is, however, a very good chance that the appellate court will uphold the magistrate's ruling and require Mrs. Cosby to give testimony.

3. People are beginning to consider and understand the purpose of the legal system in general. I'm often astounded by how unfamiliar much of the general public is with the American legal system. At least half the people I talk to are unclear about the difference between the civil system (where people sue one another, usually to obtain monetary damages) and the criminal system (where the government prosecutes wrongdoers, usually to impose criminal penalties). Ignorance about how the legal system functions isn't a result of society's stupidity (okay, sometimes it is) -- but rather is a reflection of people's attitudes toward the law.

Many have a relationship with the law roughly equivalent to that with dental health: they think about it about twice a year, and basically try to avoid the topic unless a problem persists. But the Cosby situation, in its sensationalism and shocking scope, has forced us to think about the purpose and power of our legal system and some of its components. Water cooler conversation now includes questions like, "what will a civil penalty really do to punish a wrongdoer?" and "is there a way these victims can even get justice decades after being victimized?" The answers to these questions are critical to Cosby and his victims -- but the fact that we are asking them is what will become meaningful for the rest of us. When those outside the justice system begin to care about how the law protects, punishes, and empowers -- and when those concerns rival our interest in celebrity gossip and entertainment -- that's when our legal system stands the best chance of achieving the greatness of which it is capable.