10:19am PT by Ashley Cullins
Bill Cosby's Sentence: Experts Weigh Implications of the #MeToo Era
Bill Cosby's conviction for the 2004 sexual assault of ex-Temple University employee Andrea Constand is the first of its kind in the #MeToo era, and his designation as a sexually violent predator and the sentence of three to 10 years in prison could be an indication that he won't be the last powerful, famous man to see the inside of a jail cell.
Cosby's case is unquestionably unique. It involves multiple trials, an agreement to not prosecute from a prior district attorney, varying decisions on the admission of "prior bad acts" witness testimony, allegations that the judge held a grudge against a key witness and that prosecutors tampered with evidence. Despite the atypical aspects of his case, experts believe it can shed light on how future juries and judges will treat #MeToo-related matters — including Cosby's own civil cases.
Former prosecutor turned litigator Priya Sopori says she was surprised by Cosby's sentence, given his age and health.
"I think it would be tough to argue that he continues to be a danger to society as an 81-year-old blind man," says Sopori. "This isn't about protection. This is about retribution. From my perspective, it is a good sentence."
While the jurors have said they weren't influenced by the #MeToo movement, Sopori believes they were at least educated by it.
"I think that one of the differences between the first trial and the retrial was that Cosby's team went after her credibility, which I think is really out of touch," she says. "I hope what we've learned through the #MeToo movement is that there are a multitude of very complicated reasons why victims don't come forward, and veracity really isn't one of them."
Judge Steven T. O'Neill made it abundantly clear that in his courtroom Cosby's celebrity status didn't do him any favors, which experts expect will continue as other Hollywood honchos see their day in court.
"It's fair to say that the movement, coupled with the extended two-day sentencing hearing and powerful victim impact statements, all played a role in sending a message that celebrities will not get special treatment, no matter how old or infirm they might be," says entertainment litigator Mathew Rosengart, a former federal prosecutor.
#MeToo may also be shaping the kinds of testimony courts are willing to consider.
"While speculative, it's also possible that the movement informed some of the judge's evidentiary decisions — including his decision to allow five witnesses in addition to Ms. Constand to testify against Cosby under what we call 'prior bad acts' evidence — which is often disallowed by courts under the theory that its probative value is outweighed by supposed undue prejudice to a defendant," says Rosengart. "That crucial decision might have been dispositive in the jury's analysis of 'reasonable doubt,' as it went the other way during the first trial, which was more of a 'he said, she said,' resulting in a hung jury."
Now that Cosby has been convicted of a violent felony, Sopori says, his criminal background can be used against him in civil court. (Both Lisa Bloom and Joe Cammarata, whose clients claim to have been assaulted by Cosby and are suing for defamation after their claims were publicly denied by his camp, tell THR they intend to do just that.)
"It shows a certain method of operating by Cosby that has been repeated in many of his victims' allegations," says litigator Bryan Sullivan, who notes that civil liability is a lower standard than criminal liability. The jury must find him liable by only "a preponderance of the evidence versus beyond a reasonable doubt."
Once the plaintiffs' lawyers establish a modus operandi, odds of which are boosted by the conviction, Sopori says it will be easier for the court to justify the discretionary decision to admit prior bad acts evidence and #MeToo testimony. She expects the precedent set here will extend beyond Cosby's own legal fights.
"I hope it has an impact on the way these kinds of cases are prosecuted, and that it has an impact on the willingness of victims to come forward," she says. "Ultimately our greater understanding of victim psychology is going to change the way that we view, prosecute and convict criminals."
Cosby may be the first person to stand trial since the #MeToo movement began last year, but Sopori says his conviction sends a powerful message and he won't be the last to face a jury.
"A tremendous body of work and respect in the industry is not going to protect you," she says. "You can't cloak yourself in your success. If there was anyone who would have been able to do it, it would have been Bill Cosby."