How Defamation Applies To The Bill Cosby Scandal

The rape and sexual assault allegations in the Bill Cosby scandal are by equal parts shocking and frustrating.

Shocking, because if true, it is difficult and disturbing to believe that the comedian America has come to know and love over decades could perpetrate such heinous crimes. Frustrating, because statutes of limitations make it unlikely that he will ever stand trial against these allegations.

The public, Bill Cosby and the women making allegations against him do have some hope for resolution however. This hope comes in the form of a defamation suit filed by accuser Tamara Green.

I’d like to explore some of the legal issues in this case.

Statute of limitations

Because the passage of time makes it far more difficult to effectively litigate a case, statutes of limitations bar proceedings from being brought after a period of time that is set based on the type of crime. These laws exist to protect defendants from unfair trials in which they may not be able to adequately defend themselves due to the disappearance of evidence, the death of witnesses and the blurring effect that time has on memory.
This being said, there are some crimes for which there is no statute of limitations. Murder, for example, has no statute of limitations for a couple of reasons. First, the state is always interested in finding and prosecuting murderers. Second, the victim of murder necessarily has no way to posthumously bring charges against his or her attacker.

Child sex abuse similarly has no statute of limitations in many states because of the difficulty that many victims have in admitting the abuse and finding the courage to face their attacker in a court of law. By contrast, most states do have statutes of limitations on sexual assault cases.

In Bill Cosby’s case, it appears that all of the accusers are alleging sexual assault that occurred longer ago than the statute of limitations. This does not include Andrea Constand, who settled with Cosby in 2006 for an undisclosed amount of money.

Another accuser, Judy Huth, is putting forward an interesting argument. She is suing for the recovery of damages for childhood sexual abuse that was “discovered” in the past three years, despite the actual alleged assault being past the statute of limitations. The strategy is eye catching, but Cosby’s lawyers are already demanding sanctions for the filing of the lawsuit.

Defamation

This is where things get interesting.
Defamation is a tort – a civil wrong that is recognized by law as grounds for a lawsuit. Any statement, written or oral, that injures the reputation of a third party is considered to be defamation. Worth noting is that, while there are some torts that are also criminal violations, the purpose of a tort is limited to the recovery of damages.

Four elements are required to establish a prima facie case of defamation:

1. A false statement purporting to be fact concerning another person or entity;
2. Publication or communication of that statement to a third person;
3. Fault on the part of the person making the statement amounting to intent or at least negligence; and
4. Some harm caused to the person or entity who is the subject of the statement.

Newsweek’s Katie Baker interviewed Tamara Green back in February of this year about Constand’s 2006 lawsuit, which Green was a part of. The interview is a fantastic read by itself. While Green was not involved in the settlement, she added her story to support Constand’s, in which she describes Cosby drugging and attempting to rape her before dropping two $100 bills on her coffee table and leaving.

Cosby’s publicist gave Newsweek a statement that was printed with the article. It read, “This is a 10-year-old, discredited accusation that proved to be nothing at the time and is still nothing.”

Bill Cosby and his lawyers have been extremely careful regarding public statements of this nature precisely because of the possibility of a defamation suit. An explicit denial of Green’s claim allowed her to file a complaint claiming that Cosby’s publicist “stated by innuendo, implied and/or insinuated, that Defendant Cosby’s drugging and sexual assault against Plaintiff Green never occurred, and therefore that Plaintiff Green lied and was a liar.”

What happens next? That depends upon how the case proceeds. It is possible that the court will attempt to verify whether the allegedly defaming statement is indeed false under the first element. It is also possible that the court will find that the comments don’t amount to labeling the plaintiff a liar, that Cosby isn’t responsible for his reps’ statements or that his reps didn’t know that the statements were false before making it to that point.

An attorney for Cosby responding to the lawsuit told ABC News, “We are very confident that we will prevail in this proceeding and we will pursue claims against the attorneys who filed this action.”

Time will tell. Regardless, a court hearing is always preferable to a trial of public opinion.

As an entertainment attorney, I can tell you that celebrity defamation is nothing new. Check out some of my previous posts on some of the hottest celebrities and their battles with defamation cases.