Bill Cosby And Eliminating Statutes Of Limitation: A Truly Terrible Idea

There are a lot of problems with the way America handles rape crimes. Having a statute of limitations isn't one of them.

Bill Cosby (Photo by Spencer Platt/Getty Images)

Bill Cosby (Photo by Spencer Platt/Getty Images)

Bill Cosby’s been charged in Pennsylvania with a rape from nearly 12 years ago and a lot of people are wondering why Cosby isn’t facing even more heat from law enforcement given the ever-increasing number of women who have accused Cosby of raping them under similar circumstances. The answer, of course, are the various state statutes of limitations on sexual assault charges of all kinds. As with most crimes, after a prescribed number of years, most states are blocked from prosecuting people for rape any more. The length of this period may vary, but its effect is simple: at a certain point, a victim cannot avail themselves of the criminal justice system.

Which brings us to the latest “hot take” making the rounds: the statutes of limitations for rape charges should be eliminated. Sadly, there are a lot of mostly misogynist idiots out there using this issue to publicly exercise their hardened faith in the treacherous woman trope — the conniving character out to falsely accuse men of rape at every turn. Or worse, to spout downright rape apologism. This is too bad, because without denigrating the complexity of the crime and its impact on a victim, eliminating statutes of limitations is an atrociously terrible idea, and one unlikely to solve the real concerns its proponents identify.

In a New York Times Op-Ed, Jill Filipovic outlines the case for eliminating the statutes of limitations for rape:

Restrictions on how long charges can be brought after the alleged commission of a crime exist primarily to prevent the deterioration of evidence, but also to promote public order, protect criminal defendants who may have a harder time guarding themselves against long-ago accusations, and encourage plaintiffs to bring cases or report crimes swiftly.

Those are laudable goals that make sense in theory. But in practice, they undermine justice for survivors.

Sure, but that’s the point. All statutes of limitations close the criminal justice system to victims of crimes ranging from petty larceny to involuntary manslaughter for the very reasons Filipovic sets forth. In fact, some of these arguments are supercharged in rape cases. For example, rape cases in particular benefit from ready access to fresh memories and physical evidence ranging from DNA results to (often, but certainly not always) evidence of struggle to — in cases fitting the Cosby allegations — toxicology reports. Because a crime wreaks a terrible toll does not eliminate the need to promote fair trials for defendants and to dismiss those protections with a wave of the hand is specious. It’s not that America likes criminals, it’s that with each passing year, the odds increase that a criminal prosecution puts an innocent person in jail.

Filipovic provides several on-point arguments for massive reform of how America treats rape cases — but none of these points justify the proposal of eliminating limitations periods:

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Most sexual assault survivors don’t report the crime right away, especially if the perpetrator is someone they know — which applies in about four-fifths of cases. Data from the Department of Justice indicates that rape and sexual assault are the least reported violent crimes, with only around a third of victims reporting. Even when survivors do go to the police, law enforcement routinely fails to fully investigate their claims. Nationwide, as many as 500,000 rape kits still await testing.

Among the reasons survivors don’t go to the police, one is the well-founded fear they won’t be believed; another is that they may be accused of lying or even be prosecuted themselves. Cases where the accused and the accuser know each other, or where there is little physical evidence, are especially difficult to prove.

The fact that survivors underreport provides little reason to suggest the passage of 13 years can move someone already hesitant to revisit a trauma to file charges when 12 could not. That law enforcement routinely disregards or downplays rape allegations is even more irrelevant to Filipovic’s proposal. The statute of limitations means little if the police aren’t willing to investigate. If police won’t investigate a rape that occured last week what are the chances they’ll investigate one that happened 15 years ago? Ending the abomination of charging women for their own rape kits and putting a newfound premium on rape investigations are proposals that make sense. Not that I think Filipovic sees this as a zero-sum game, but those less engaged who might take this proposal to heart will end up congratulating themselves for latching onto a proposal of dubious value and then stop caring about all the other issues surrounding rape.

Even evidence doesn’t guarantee a prosecution. In the 24 states where there is no DNA exemption to the statute of limitations, if a rape kit finally is tested and there’s a match, the victim is out of luck if it has been too long.

Right. Because sexual contact does not automatically mean a rape has occurred. It’s important evidence, but just a component of a rape case.

Opening the door to more 15-year-old claims — admittedly a rare event — does nothing to combat the problems of underreporting and lazy prosecution while only undermining the protections America affords defendants. In fact the only defense of defendants in the piece is paper-thin:

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An end to statutes of limitations would also allow prosecutors more time to build thorough cases against alleged assailants, instead of rushing up against a dwindling deadline to file slapdash charges, potentially compromising the rights of the accused in the process.

This may be a strong argument for a limitations period longer than notoriously short statutes — say, Alabama’s 3-year period. But this is really stretching it for a case where the accusation is lodged for the first time 12 years down the road, days before the statute has run, and the prosecutor makes a hasty decision to move forward with the case based on little additional investigation. First of all, Bill Cosby’s case hardly makes that case — his accuser, Andrea Constand, reported Cosby around 11 years ago. If only prosecutors were as “slapdash” as Filipovic suggests in this paragraph! More likely, law enforcement would act like she suggests elsewhere in the piece, with a dismissive, drawn-out, plodding response.

Actually, there is one very important area where prosecutors do get aggressive, and that’s where they see white victims and African-American or other minority defendants. Opening the door to more old claims reactivates this bias toward racially disparate prosecutions with all the attendant miscarriages of justice that go with law enforcement downplaying rape stories involving the “wrong” victims and perpetrators — especially after a long passage of time — and ramrodding the prosecution of black and minority defendants in a forum where safeguards for the accused are already eroded by the years. If you have faith that a system with statistical biases across the board would always get it right in a 20-year-old rape case this isn’t a problem. I’m not sure I can get on board with that.

That said, the fact that access to the courts varies wildly across the country is a valid concern, but those are the vagaries of federalism. Harmonizing limitations periods across the country need not require eliminating limits — or dismissing the real concerns behind them — outright.

The criminal justice system routinely fails rape victims, a crisis that no one should take lightly. But that the system tries, generally, to promote charges filed sooner rather than later to protect defendants and the integrity of trials, isn’t one of those failings.

No More Statutes of Limitations for Rape [New York Times]
Bill Cosby Is SOL [Redline]