Dozens of women say that Bill Cosby sexually assaulted them, but the entertainer faces criminal charges in only one case, largely because of legal deadlines.
The deadlines, or statutes of limitation, are intended to ensure that cases are investigated promptly and defendants are tried when memories are still fresh and evidence available.
But the Cosby accusations already have prompted attempts in at least two states — including California — to remove barriers to prosecution.
Gov. Jerry Brown, who has vetoed bills to extend legal deadlines for filing lawsuits over child sex abuse, must now decide whether to abolish time limits for charging someone with rape, sodomy, lewd or lascivious acts, oral copulation, and continuous sex abuse of a child. Most of the crimes now carry a 10-year statute of limitation.
No one knows how many additional prosecutions a longer deadline or the abolition of any time limit might bring. California’s bill was not based on any study or systematic research, and allegations of decades-old crimes are often hard to prove — and difficult for a defendant to contest.
“But at least it gives victims an opportunity for law enforcement to really look into this,” said San Bernardino County Dist. Atty. Mike Ramos, a co-sponsor of the bill. “At least they have their day to sit down and say what happened.”
The measure would affect only sex crimes that occur next year and or later — retroactivity would probably render the proposal unconstitutional — and offenses for which the statute of limitations has not expired by Jan. 1.
Child molestation charges now may be filed any time before a victim reaches the age of 40. The bill would remove that age limit.
Deadlines for bringing criminal charges vary from state to state, but most have statutes of limitation for rape.
In California, there is no time limit for filing murder charges or for embezzlement of public funds. A rape that results in serious injury to the victim or that was committed with a weapon or by multiple perpetrators also can be charged at any time, as can crimes that carry life sentences.
Some legal analysts expressed skepticism about abolishing time limits for sex crime charges.
“I have concern whenever we have knee-jerk legislation that seems to follow on a particular case or cause,” said Loyola law professor Laurie Levenson, a former prosecutor.
The passage of time in such cases makes it more challenging to assess credibility, examine motivations and find corroborating evidence, she said.
UC Berkeley law professor Franklin Zimring said the bill could result in questionable prosecutions, including some based on recovered memory.
Although prosecutors generally do not file charges without enough evidence to prove them, other factors might come into play, Zimring said.
“The prosecutor might take cases which have an enormous amount of publicity or an enormously attractive victim or an enormously vulnerable and important defendant,” he said.
California law used to make it extremely difficult for prosecutors to win rape convictions, said Stanford University law professor Robert Weisberg. Now the tide of public sentiment has turned, and the state in recent years has been extending legal deadlines for filing sex crime charges.
Among the legal justifications for statues of limitation, Weisberg noted, is the “the principle of repose.”
“Even if a charge might be valid, citizens are simply allowed to get on with their lives at a certain point,” he said. The law says “they shouldn’t have the Sword of Damocles hanging over them forever.”
Indeed, the law seeks finality in all sorts of contexts, said UCLA Law Professor Beth Colgan. Appeals, even in death penalty cases, cannot be brought once a legal deadline has expired.
Current law already allows for flexibility when a DNA links someone to a rape. Prosecutors have a year after the DNA hit to file charges, even if the the 10-year deadline has expired. The new proposal would affect victims without this evidence.
USC law professor Susan Estrich, a rape victim and scholar who has written a book about sexual assault, agreed that prosecuting a rape 20 years after it occurred would be challenging.
“But if you have proof of rape, beyond a reasonable doubt, I would want that proof to be presented and that man to be punished,” she said in an email, stressing that she was referring to rape and not the other sex crimes covered by the bill.
State Sen. Connie Leyva (D-Chino), who introduced the legislation, cited U.S. Department of Justice statistics that one in six women are raped or have suffered an attempted rape in their lifetimes.
The corresponding figure for men is one in 33, she said, and only two of every 100 rapists serve prison time. She said the statistics included reports of spousal and statutory rape.
Leyva acknowledged she has no idea how many victims might seek prosecutions under her bill, which is favored by law enforcement and victims groups and the Women’s Law Center and opposed by the ACLU and criminal defense lawyers.
When the Legislature in 2002 gave victims of child sex abuse an additional year to file lawsuits, 1,000 new complaints were filed. But filing a civil suit is much easier than persuading a prosecutor to bring criminal charges.
Years later, Brown rejected two bills that would have allowed for more child abuse lawsuits. In refusing to sign the latter of the bills, Brown said statutes of limitation were about “fairness.”
Brown has until Sept. 30 to act on Leyva’s bill.
A Senate analysis said it would cost the state $300,000 annually or $13 million over 10 years if 10 additional individuals were sent to prison each year because of it. Also, because the state is under court order to reduce the prison population, more people might have to be paroled, the analysis said.
Regardless of how many new prosecutions the bill would spur, Leyva said, it was important to show that “we take rape very seriously in California.”
“At least a woman or a man who comes forward isn’t going to have the door slammed in their face simply because it has been 10 years and one day,” she said.