The Cosby conviction avoided a common pitfall – illicit drug mystique

In my previous post about the role of drug testimony in the Cosby trial, I noted that the skepticism on both sides about the effects of diphenhydramine (commonly sold in North America as Benadryl) was unwarranted and was contributing to a kind of unhelpful illicit drug mystique that hovers around allegations of predatory drugging. Given the storied length of time between the incident (2004) and the first criminal trial (2017), it should have been obvious from the beginning that there would probably never be any certainty about what, exactly, Bill Cosby handed Andrea Constand that evening to help her relax.

In the end, as it should have been, the path to conviction was simpler: the deposition and Cosby’s own words about how he deployed methaqualone (Quaaludes) during his interactions with women. Even if his intended inference was that “back then” a great deal of drug-taking was consensual, and therefore the pills flowed like candy, this does in no way erase the consent and capacity issue. In fact, he said in the deposition that he did not take the drugs himself, essentially implying that he sought tactical advantage through chemicals. This theme permeated the criminal complaint filed in 2015.

I thought once Judge O’Neill permitted the deposition material in the current trial, the Cosby legal team might persist with what I think of – and I have seen this before in serial drugging assault cases – as the “demimonde defense.” The idea is that the accused and the alleged victims were involved in the same subculture that sanctioned recreational drug use, excess drinking and multiple sexual encounters. Therefore, it is often implied – and this has to be just shadow-sketched, not fully spelled out – that everyone involved should have known what to expect, that norms and boundaries are present but not conventional, and that the accused was a peer participant rather than a criminal predator or exploiter. The short hand in this case has been something like: well, it was the 70s and these were Hollywood people, or aspired to be.

But it’s not the 70s, and Andrea Constand was a child then. Even if one were to countenance such arguments to counter the testimony of prosecution witnesses brought in to build an argument that Cosby had engaged in a distinct pattern of criminal behavior dating back decades, Constand was certainly no part of such a demimonde. The defense veered away from it, and instead tried to raise some doubt about when the alleged incident occurred, which also had the potential advantage of throwing the statute of limitations into question.

Indeed, by day 8 of the trial, defense attorney Becky James affirmed the irrelevance of Quaaludes use in the 1970s, as it was clear that it cast a shadow over the specifics of the drug issue in the current matter of Constand’s testimony, and wasn’t helping Cosby at all. Constand reported feelings of weakness, disorientation, and a sense of paralysis after taking the tablets. Cosby says he gave her Benadryl. Obviously, Cosby intended this to be exculpating. Unfortunately, many people, including the press, seem to also think of diphenhydramine as a cuddly little antihistamine that couldn’t possibly produce the same effects as a now off-market legendary tranquilizer like Quaalude. Even the defense’s expert, Dr. Harry Milman, insisted that Benadryl wouldn’t have those effects, and that government regulators would have dealt with the drug more harshly if it did. It seems that Dr. Milman was drawing upon a rather a quick and apparently not very successful Google search.

But Cosby need not have given Constand methaqualone, or any specific CNS depressant, to get the desired incapacitated effect. Enough Benadryl would in fact do that – as would any other number of anti-anxiety or insomnia medications – if given in heavy doses. And the prosecution witness, Dr. Timothy P. Rohrig, explained this on the stand. Jon Hurdle of the New York Times reported that

Under direct questioning from M. Stewart Ryan, an assistant district attorney, Dr. Rohrig said Ms. Constand’s testimony that she became disoriented and lost the use of her arms and legs matched the effects of diphenhydramine, the active ingredient in Benadryl.

Dr. Rohrig said the effects include sleepiness, blurry vision and dry mouth. “Benadryl will do that, plus a hangover effect,” he said. “All the symptoms and the timing are consistent with the ingestion of diphenhydramine.”

Dr. Rohrig said diphenhydramine has been used in numerous cases of “drug-facilitated sexual assault.” He said the effects of Benadryl would take 15-30 minutes to begin, and would reach their peak in one to two hours. The drug has been produced in round, blue pills, like the ones Ms. Constand said she took, but has also been available in oblong or oval shapes, Dr. Rohrig said.

Rohrig’s job was to explain how this drug can be (and has been) used in incapacitating assaults, but it should also remind us that in a world of pharma-ubiquity, no cleverness or illicit market prowess is needed engage in this kind of predation. Broken trust and opportunism come first. Any number of readily available substances – let’s not forget alcohol — can assist, but they can’t plan, plot, assault or exploit on their own.

Cosby was found guilty; his lawyers say they expect to appeal the conviction. — May 2018

Get my book, Drink Spiking and Predatory Drugging: A Modern History for only $9.99 as an e-book (all formats) on May 17, 2018 as part of Palgrave’s Daily Deal.

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Cosby Trial: Cold medicine in an alleged drugging case is … nothing to sniff at.

Bill Cosby is currently on trial for an alleged sexual assault on Andrea Constand in his home near Philadelphia in 2004. Last year, a previous court case ended in mistrial. In the interim, of course, the world learned of many more allegations against the entertainer over the decades.

At various times, Bill Cosby has claimed to have given women cold or allergy medicine. This was, I’m sure, intended to sound more benign than the Quaaludes (methaqualone) that he admitted purchasing, during a deposition in the civil case Constand brought against him in 2005.  He said then that he got Quaaludes to give to women he wanted to have sex with, and also admitted that he didn’t take that drug himself, as it made him sleepy.

But the “cold medicine” pivot doesn’t point to a lack of predatory intent. A little primer about the potentially big effects of diphenhydramine is order.

We commonly know diphenhydramine as an over-the-counter remedy, in the form of a little pink antihistamine; the most well-known brand name of this drug is Benadryl. It can make people drowsy, and in fact many people informally use it on themselves (or even their pets) to coax sleep on an otherwise agitated situation. This is a relatively safe practice if no alcohol is involved, and the dose is kept low. But at doses above the recommended 25-50 mg level, there have been reports of blackouts, feelings of heavy limbs or paralysis, and disorientation. There are also methaqualone and diphenhydramine combination pills; some formulations of these are blue tablets. Higher doses of diphenhydramine alone have been made in blue tablets, as well.

Recently, concern has emerged about nightlife welcoming the “Benadryl cocktail.” For the record, this is an ill-advised mixture. People have been mixing heavier drugs, like tranquilizers, with alcohol for a long time; in the 1950s, the Miltown Martini was much in vogue. I can remember a particularly notorious dorm party at college that involved NyQuil and vodka. Most people’s interest in these concoctions is also voluntary, recreational, and for self-dosing; nonetheless, diphenhydramine can and has been used in a predatory way. Nearly any substance can be pressed into predatory service under the right circumstances. Playing armchair toxicologist, by simply guessing on the basis of a victim’s symptoms, is not wise. To use legalistic language even outside a court setting: you’re piling on additional burdens of proof that are unnecessary if you simplimage of pills falling out of a bottley take a broader view of the total circumstances. The question really is: did someone suffer exploitation or assault, in part because they could not consent or resist?

The 2015 criminal complaint against Cosby takes diphenhydramine seriously – and it should. At a high enough dose, Benadryl absolutely could produce the symptoms that Constand described.  She said that he gave her three blue pills represented to her as herbal supplements, after she mentioned feeling out of sorts. Quickly, heavy symptoms emerged – dizziness, disorientation, and difficulty moving and staying conscious. She says she was also aware of a great deal of sexual touching during this time but was unable to resist or move away.

The prosecution this time around has a refreshing approach to the drugs aspects of the case — refreshing for being circumspect. It’s an approach, I think, with the practical goal of withstanding limitations the court might have (and did previously) place upon evidence about Cosby’s alleged pattern of behavior over the decades. But the role of drugs in the complaint keeps its sights on the underlying offenses. It takes a notably different tack than previous drugging allegation cases in some state courts and before college disciplinary boards. In my 2016 book Drink Spiking and Predatory Drugging: A Modern History, I identified a common, but often perilous, temptation to make drugs that central issue in assault cases, rather than the assault itself.

The key thing here, for establishing the non-consensual nature of the encounter, is the fact of Constand’s incapacity. The specific charge related to Cosby’s drugging behavior relates to facilitation of sexual assault, that he knowingly offered drugs that would lead to the incapacity and thus could not then argue that the encounter was consensual.

In this way, Cosby’s disassembling is the issue, not whether or not Constand took narcotics, high-dose diphenhydramine, or “herbal” supplements from Cosby. She took something from him, as they both agree, and became disoriented, weak, and only sporadically conscious afterward. This criminal complaint keeps it simple, in other words: Constand was in no state to consent, and the defendant’s behavior with whatever he may have given her strongly suggests consciousness of guilt and intent.

Contrast this approach with the one used in prosecuting and confirming convictions against Jeffery Marsalis, another Philadelphia-area case where the defendant was accused of multiple serial rapes and druggings:

But in trying to establish the likelihood of drugging, the press and the courts seemed at times, disturbingly, to rest their accusations of assault on it. It was a successful gambit for them, but risky. And it once again deferred the question of what right women had to bodily integrity when voluntarily intoxicated, as many of the women also were. So much emphasis was placed on the drugs that Marsalis’ violence—his decision to rape and exploit—seemed like some mechanistically simple and inevitable outcome of his drugging scheme. For instance, the courts belabored how he could have obtained drugs through his nursing and emergency medical technician (EMT) work. But by the time of the Marsalis allegations, in the early 2000s, obtaining drugs for such a purpose was hardly difficult. Benzodiazepines were everywhere. GHB was a popular club drug. Diphenhydramine (which was brought up as a possibility) is available over the counter. Basically, anyone who wanted to drug anyone else would not find many obstacles of a chemical sort. There basically are no barriers to means, nor have there been for a very long time. [p193]

The prosecution made the same mistake when they prosecuted Marsalis for a similar case in Idaho, developing a deep expert witness roster based on a theory of GHB drugging. Toxicology evidence was negative, and was misrepresented by a detective initially, although that wasn’t the only evidence that suggested drugging. But the drugs preoccupation put the conviction in jeopardy during appeal, where Marsalis’ lawyers argued, convincingly to at least some of the appellate judges, who dissented from affirmation of conviction, that the prosecution had made a particular drug scenario the centerpiece of its case, misrepresented the evidence, and then tried to argue that it wasn’t central. Once again, however, the appellate court majority did decide that the central issue was the complainant’s lack of capacity to consent, not an intricate and well-documented road map of chemical predation. A close call, and an example of how a drug-centric shaping of a case, can jeopardize the centrality of assault upon an incapacitated person.

The Cosby complaint takes its unknowns in stride, rather than running from them, headlong into phantom evidence that then weighs down the accuser with absences. It remains to be seen whether this broader-view approach makes a difference.

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