Bill Cosby’s lawyers are trying to get the sexual assault charges against their client dropped, or at least order a new preliminary hearing, by claiming that they should have been allowed to cross-examine the woman who alleges Cosby assaulted her.
Brian McMonagle, Cosby’s lead defense lawyer, argued in documents filed Wednesday that it was “hearsay” to admit testimony from the detectives who took statements in 2005 from Andrea Constand about the alleged assault.
This is the same argument that McMonagle tried to make at Cosby’s pretrial hearing on May 24. The prosecution successfully argued him down then, pointing out that a three-member panel of the state Superior Court ruled in 2015 that a victim’s statement to police is admissible at preliminary hearings.
Cosby's defense team strategy is simple, Kenneth Lipp reported last month for the Daily Beast: "discredit Constand by questioning her behavior after the alleged rape."
During Cosby’s preliminary hearing, McMonagle fixated on the detail — presented in some of the so-called hearsay evidence from one former detective, Katharine Hart — that Constand said she had taken her family to Cosby's show and brought him a sweater as a present some time after the alleged assault.
McMonagle also argued that Constand's story has inconsistencies, and that Constand herself, not Hart, should have to appear before the court and "answer questions like: 'Why did you wait so long to report?'"
Of course, it's McMonagle's job to acquit his client in any way he can. But his strategy relies on some damaging and false assumptions about rape victims — assumptions that many people share, which means that a jury could be swayed by McMonagle's arguments pretty easily.
In most criminal proceedings, defense attorneys try to show their client is not guilty by poking holes in the prosecution’s story and looking for inconsistencies. But the problem with trauma, especially rape and other sexual trauma, is that it can make people think and act in seemingly inconsistent ways, like giving your alleged rapist a gift, having consensual sex with him again at a later date, or even getting or staying married to him.
That's partly because, unlike other crimes, most rapes are committed by someone the victim already knows. That can make dealing with rape even more emotionally complicated, Julie Gurner, a doctor of clinical psychology who has worked with victims of sexual assault in psychiatric hospital settings, told Vox.
"For example, being raped by a family member, someone in their college network, a person in authority, or someone with substantial clout might make a victim feel 'guilty' for saying anything against them, or that there would be personal or professional consequences if they did," Gurner said.
The idea of actually feeling guilty about doing something to hurt your rapist probably seems utterly bizarre and impossible to imagine for most people. But it's a daily reality for survivors of abuse and assault, and it can be a really tough one to explain convincingly to a jury.
