Bill Cosby accusers face legal limits in U.S., unlike in Canada
Canada has no statute of limitations for laying a sexual assault charge and more flexibility to sue
The many women now accusing Bill Cosby of decades-old sexual assaults are unlikely to ever see their cases in U.S. court because the maximum time for starting legal proceedings has passed.
But legal experts say that if the alleged incidents had occurred in Canada, the accusers would have more "power" to seek criminal charges and launch lawsuits against the 77-year-old comedian.
For his part, Cosby, who's mired in a scandal that has led to cancellations of some of his appearances and projects, is denying the allegations through his lawyer.
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"I think the United States should be embarrassed that we knowingly close the door as quickly as we do" to sex assault charges and lawsuits, said lawyer Wendy Murphy, who used to prosecute sex crimes and now represents rape victims, and also teaches sexual violence law at the New England School of Law in Boston.
"There’s no doubt that if you look at Canada, you have a wide window of opportunity for victims to seek redress in civil and criminal cases. That’s a far more effective public policy approach," Murphy added.
An athletics director at Temple University in Pennsylvania made the first public sexual assault allegations against Cosby 10 years ago. Police investigated but laid no charges, and she reached an out-of-court settlement with the comedian after launching a subsequent lawsuit (such a settlement is not necessarily an acknowledgment of any wrongdoing).
But that led to a number of women coming forward with allegations dating as far back as 1969. And in those matters, "it appears that the statute of limitations would prevent any criminal prosecution, and also bar any civil lawsuit," said Gloria Allred, a U.S. lawyer who has represented women in high-profile cases involving filmmaker Roman Polanski, former congressman Anthony Weiner and golfer Tiger Woods, among others.
No time limit in Canada to lay charges
Take Arizona artist Barbara Bowman, who alleged in a Washington Post op-ed piece last week that Cosby "drugged and raped" her during an encounter in New York, and said he also assaulted her in Reno, Nev., all in the mid-1980s. Or publicist Joan Tarshis, who came forward on Sunday to allege Cosby took advantage of her in a Manhattan hotel suite in 1969.
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Under Nevada law, unless a victim files a written report within four years of an assault, no charges can be laid thereafter.
In New York, because the alleged incidents were more than five years ago, even if an investigation turned up enough evidence, prosecutors would be barred from laying all but the most serious rape charges — which are the most onerous to prove. And if no criminal charges are ever filed, then the opportunity to file a civil suit has long passed.
(None of these sexual allegations against Cosby has been tested in court. In a statement on Sunday referring to all but the Temple University employee case, his lawyer said they are "decade-old, discredited allegations," and "Mr. Cosby does not intend to dignify these allegations with any comment").
Contrast that all to Canada, where there is no time limit on laying any serious criminal charge. As well, thanks to a 1992 Supreme Court decision and ensuing legislative changes in many provinces, the time limits for filing civil sex-assault claims are fairly flexible, tending to account for victims' individual circumstances. (In Ontario, for example, a sex assault lawsuit can almost always go ahead time-wise unless the defendant can prove the plaintiff should have been held to a shorter limitation period).
"It's been very liberating for survivors. You don’t have that kind of clock ticking in your head, driving you to do something that maybe you’re not ready to do," said Elizabeth Grace, a partner at LernersLLP in Toronto, who co-wrote the main legal text on civil liability in Canada for sexual violence.
"When a person has been abused, they’ve really had power taken away from them, so if the process can give them back some more power, around decisions about when to bring forward a claim, then that can be good."
Both Murphy, the former prosecutor, and Allred said they've fought for years to extend the statutory limitation periods for U.S. survivors of sex assault and abuse to bring charges and lawsuits. There have been some successes.
"But they remain, in my view, too short," Murphy said.
"The legislatures are very reluctant," Allred said, pointing the finger at "powerful interests that lobby against it," including Catholic clergy organizations.
The result is that many sex assault survivors, who often describe feeling shame and embarrassment, never have a chance at the vindication that might result from a guilty verdict or a successful lawsuit — though many also express a lack of confidence in the justice system.
Survivors of sex assaults aren't the only ones missing an opportunity for closure, said Toronto lawyer David Butt, who prosecuted many such cases in 13 years as a Crown attorney and now represents sex assault victims in the criminal context.
"A terrible thing is for a person to feel victimized and not have access to the courts to seek vindication," Butt said, "and a terrible thing on the other side is for someone to be accused of something, and the authoritative body that settles those disputes will never weigh in to settle that dispute, so the person lives under a perpetual cloud."
That may prove to be the fate of both Cosby and his accusers.
In that case, with the courts of justice closed to the alleged victims, the accusations are playing out in the court of public opinion via social and other media.
It's a forum that's "chaos," according to Helen Benedict, a Columbia University journalism professor who has written books about sexual assault and how media cover it.
"If you're making accusations against someone like Bill Cosby, there's people who wish to defend him. Nothing will stop them from digging into your past and finding naked pictures of you or whatever they can do to humiliate you or discredit you, and you have no way to stop or combat that," Benedict said.
On the other hand, Benedict said, survivors can gain the courage to come forward with their stories by seeing other victims in the limelight.
"People tend to not believe you, tend often to see you as a liar — which only happens in sex crime cases — and so to have other people come out and say, 'That happened to me too' is enormously helpful and healing."
Cosby himself has remained silent in recent days. He was asked point-blank by an NPR reporter, in an interview that aired Saturday, "Do you have any response to those charges?"
The comedian shook his head and sealed his lips.