Updated, Saturday, October 9, 3:25pm
So this happened last night:
Might be time for a new hashtag. #OrangeCosby
— Tom Bergeron (@Tom_Bergeron) October 7, 2016
When Tom Bergeron created the hashtag #OrangeCosby (which immediately began trending), he may have said it best, but he didn’t say it first. I made the Trump-Cosby comparison a while back, even before the latest sexual assault lawsuit against Trump had been scheduled for a hearing.
Bergeron went on to clarify the comparison for anyone needing help understanding how bragging about sexual assault relates to committing sexual assault:
Sorry to lose you but the arrogant, sexist, dehumanizing sense of entitlement and power is common to both. It starts there. https://t.co/rL3YSY7Upm
— Tom Bergeron (@Tom_Bergeron) October 7, 2016
If my own Facebook feed is any indication, millions of misguided Americans are lining up to defend Trump and dismiss his p***y-grabbing comments for one inane reason or another. Yet, when it came to Cosby, an almost universally-beloved figure, the public was quick to re-cast him as the ultimate villain. Maybe it’s because Cosby is a black man and an underlying current of racism propelled the public’s willingness believe he did what he was accused of. Maybe it’s because Cosby wasn’t running for president, so those who turned on him weren’t forced to question their own ideologies as a result of doing so. Either way, though, the similarities are striking. And even more striking are the differences. So much about the rape allegations against Trump is more disturbing than those against Cosby.
In two weeks, Bill Cosby will be formally arraigned in the case Commonwealth v. William Henry Cosby. The world will be watching, but not out of true suspense. Most people will follow the case expecting to hear lurid details about the comedian’s alleged sex crimes, and will follow the trial to see the spectacle of a beloved entertainer hitting rock bottom. At the same time, Doe v. Donald J. Trump, a federal civil case for sexual assault, will proceed against Republican frontrunner Donald Trump (if a judge decides not to dismiss it). That case, though, is unlikely to receive even a fraction of the media and public attention that Cosby’s case will.
The disparity in public perception between the Cosby and Trump cases is fascinating. From a purely legal standpoint, the allegations against Trump are way worse than the ones against Cosby. Trump’s alleged victim, who filed the lawsuit, claims she was a thirteen-year-old child when the assault happened, while Cosby’s was a grown woman. Trump’s alleged attack was overtly violent, while Cosby’s was not. And the claims against Trump come with someone claiming to be an eyewitness, while Cosby’s does not. In fact, everything from procedure to substance weighs as badly, if not worse, against Trump as it does against Cosby. But, strangely, I even find the case against Trump hard to believe.
Just to examine a few aspects of the cases:
Statutes of Limitation
The criminal and civil statutes of limitation have long since run on most of the sexual assaults alleged by women who have accused Bill Cosby. The one criminal prosecution that is proceeding against Cosby is for the alleged 2004 sexual assault of Andrea Constand, making Pennsylvania’s 2015 prosecution come in just under the wire of the applicable statute of limitations. Sidebar: the civil cases that have been filed against Cosby aren’t for sexual assault, because too much time has passed to bring those. Instead, the civil cases allege that Cosby defamed the plaintiffs by calling them liars in response to their public accusations of sexual assault. That alleged defamation didn’t happen until after the women came forward, so their civil claims have no statute of limitation woes.
By contrast, Trump’s statute of limitations drama is actually far more unusual. Trump’s anonymous accuser has alleged that the Donald raped her back in 1994, when she was thirteen, and that the 20-year statute of limitations never even started running. Ms. Doe argues that the statute is “tolled” because Trump threatened her. Sidebar: tolling statutes of limitation is standard practice in a variety of instances. For example, if a plaintiff is a minor when a cause of action arises, that statute could be stopped (or “tolled”) until the potential plaintiff reaches the age of majority. The same concept works when a plaintiff is incarcerated or is mentally disabled. The concept of tolling is to hit “pause” on a lawsuit for the purpose of effectuating fairness to disadvantaged plaintiff. Statutes of limitation are also tolled when their reason for suing is obscured (as in the case of a medical malpractice victim who does not discover a surgical tool accidentally left inside him until years after the wrongdoing actually happened) or when they are prevented from bringing suit for some other reason. That’s this plaintiff’s sweet spot.
According to the plaintiff, Trump threatened to harm or even kill her and her family if she came forward with any accusations:
“Any statute of limitations … is tolled owing to the continuous and active duress imposed upon Plaintiff by Defendants that effectively robbed Plaintiff of her free will to commence legal action until the present time. More particularly, Plaintiff was unrelentingly threatened by each Defendant that, were she ever to reveal any of the details of the sexual and physical abuse caused to her by Defendants, Plaintiff and her family would be physically harmed if not killed. The duress has not terminated and the fear has not subsided. The duress … rose to such a level that a person of reasonable firmness in Plaintiff’s situation would have been unable to resist.”
That’s a pretty mammoth claim. Trump is certainly powerful enough to have exerted 22 years of duress on someone. Alternatively, the whole thing could be fabricated. Trump’s attorneys have vehemently denied the allegations, even have gone so far to say they may go after the lawyer who filed the lawsuit. Either way, though, it’s alarming that this isn’t daily, front-page news. People say all sorts of things in the media, but when a federal lawsuit is filed, that’s a little different.
As each of the (now 57) women who accused Bill Cosby of rape came forward, we saw the tide of public opinion change dramatically. Simply put, there is strength in numbers, and while one woman might have been lying, most of us believe that it would be unlikely for all 33 women to be lying. So that sets the Trump case apart from the Cosby case, right? Well, not really. Donald Trump has also been accused of sexual assault in the past. One such accuser was his wife, Ivana, who testified that Trump violently attacked her, ripped out her hair and forcibly penetrated her without her consent. Later after they divorced, Ivana did a flimsy recant, explaining that she hadn’t meant “rape” literally.
And Ivana isn’t the only one. Jill Harth accused Donald Trump of sexual assault, and she has also taken her allegations to federal court. Ms. Harth’s lawsuit told the frightening story of Trump’s forcing her into his daughter Ivanka’s bedroom, holding her there against her will, and molesting her while she protested. Ms. Harth sued back in 1997, but the lawsuit was quickly drooped. However, Harth has reaffirmed her story recently in a Twitter war with Trump.Trump also denied those allegations at the time. But while Bill Cosby’s apparently sordid history received intense media attention immediately after he was accused, no such avalanche has affected Trump. Sure, Harth plus Ivanka doesn’t add up to 57, but Cosby’s ship started sinking as soon as the first corroborative story surfaced. And was without the help of political haters.
Sexual assaults rarely involve credible third-party witnesses; when they do, though, the result is usually pretty damning for the perpetrator. The recent prosecution of Brock Turner bore such a result. The witness observing Turner mid-assault was a key factor in helping the public conceptualize Turner as villain, unlike the many rape cases in which the public fills in the factual blanks with victim’s own fault.
In Jane Doe v. Donald Trump, a witness statement is attached to the Complaint, saying (among other disturbing things), “I personally witnessed the Plaintiff being forced to perform various sexual acts with Mr. Trump and Mr. Epstein. Both Mr. Trump and Mr. Epstein were advised that she was 13 years old.” And that’s not even all of it. “Tiffany Doe” went on to certify, “I personally witnessed four sexual encounters that the Plaintiff was forced to have with Mr. Trump during this period, including the fourth of these encounters where Mr. Trump forcibly raped her despite her pleas to stop.”
Of course, Tiffany Doe could be lying. But that’s true of any witness swearing to any statement attached to any lawsuit. Andrea Costand could be lying about Bill Cosby assaulting her. The doctor who said he gave Quaaludes to Cosby to use on his victims could also be lying. But somehow, our collective reaction to the Cosby allegations is completely different from our reaction to the Trump ones.
That difference in reaction is deeply disturbing in its lack of clear root cause. Bill Cosby was a beloved family entertainer whose brand was built on wholesomeness and good, clean fun. The picture of him allegedly drugging and raping models is diametrically opposed to the Heathcliff Huxtable we all loved. By contrast, Donald Trump is an unapologetic misogynist who bullies, antagonizes, and threatens on a daily basis without any serious regard for consequences. He has been publicly exposed as someone who preys on the weak as a large-scale business strategy.
Yet, even I barely believe that Jane Doe’s allegations are true. And I can’t point to a single rational reason why. I’m most frightened by the possibility that the public’s general lack of interest in Jane Doe v. Donald J. Trump is a product the same personal-brand hype that catapulted Trump into the 2016 election. Just as he has convinced millions of Americans that he is a shrewd and infallible businessman, he may have convinced us that he would never have victimized a young girl. Just as he has painted himself as a “political outsider” despite having dined and golfed with presidents and governors, he may have created a fictionalized version of himself who could never be violent. Trump has induced millions of people to become unwavering supporters; he may well have convinced his political opponents that he’s, “bad, but not bad enough to have done that.”
Follow Elura Nanos on Twitter @elurananos
This is an opinion piece. The views expressed in this article are those of just the author.