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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SAVE THE DATE: Get the e-book for $9.99 on May 17, 2018 — one day only Daily Deal from Palgrave.

image of book cover Title is Drink Spiking and Predatory Drugging: A Modern History
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Update, 5/21: The Daily Deal is over, but the paperback version is slated for the summer of 2018.

Palgrave is featuring my book Drink Spiking and Predatory Drugging: A Modern History as a Daily Deal on May 17. For one day only the e-book (for all formats) will be available for $9.99

In the meantime, previews are available at Palgrave, Amazon, and Google Books.

And related content is available here on my blog.

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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Backhanded Victim Blame and the Current Drugging Scare: excerpts

In the book, Drink Spiking and Predatory Drugging: A Modern History, I make the argument that exaggeration of the date rape drugs threat (among students, particularly, but not limited to them) has a pernicious effect on voluntarily intoxicated victims of violence and exploitation.

Situations in which drugging explanations are insisted upon when both tests and circumstances suggest otherwise has the dual negative effect of sidelining claims about the sexual assault itself, and contributing to a basically melodramatic view of the problem. Left out in the cold, then, are all the more mundane experiences that most assaulted women recognize as their own. (p 248)

One of the things I spent some time mulling over was how to present the argument in such a way that didn’t fall into the “this problem is a distraction from that problem” trap. Distraction arguments, after all, can be lazy:  take any two things happening at the same time and say that one is a distraction from the other. Obviously, surreptitious drink spiking followed by rape does happen, and I detail some of these in the book. But in the case of this drug scare, the relationship between the roofie obsession and the desire to escape any talk about voluntary alcohol consumption – for fear of victim blaming – is fairly stark and very direct, and I wasn’t the first, by far, to notice it:

Amanda Hess sarcastically called out the “date rape drugs industrial complex” as fomenting fear about a relatively rare occurrence and trying to shift talk about rape back to the lurking stranger…. Hess noted the face-saving qualities of the formulation: “Now, society is ready to accept that a rape victim is still a rape victim if she goes out to a bar with her girlfriends and has a few drinks—as long as her intoxication is capped off with a surprise roofie.” It’s basically a form of victim-blaming that manages to look like victim sympathy at first. Many opinion leaders and policy makers are squeamish about asserting the simple right of intoxicated people (women in particular) to not be assaulted, no matter how they got that way. (p. 142-143)

Hess mentioned some research I’d done with Adam Burgess and Sarah E.H. Moore on the topic. But she formulated the problem so concisely that it advanced my thinking about the topic greatly when I went to write the whole book. And then I began to find evidence of this backhanded victim blame everywhere. Tennis star Serena Williams, opining in 2013 about the Steubenville rape case, infamously exemplified the attitude in a Rolling Stone interview:

“I’m not blaming the girl, but if you’re a 16-year-old and you’re drunk like that, your parents should teach you: Don’t take drinks from other people. She’s 16, why was she that drunk where she doesn’t remember? It could have been much worse. She’s lucky. I don’t know, maybe she wasn’t a virgin, but she shouldn’t have put herself in that position, unless they slipped her something, then that’s different.” (Williams, quoted in RS, 6.18.13)

Then that’s different: it’s “real rape.” The fear women have of blame for their own victimization is not irrational; it is grounded in the harsh judgment of intoxicated victims. Williams was roundly criticized for these remarks, and she did eventually walk them back. But this was just a celebrity version of a widespread but often unacknowledged attitude, that characterizes not only victim blamers but, more troublingly, people who claim to be victim defenders, including campus anti-rape activists, journalists, district attorneys, and legislators.

To expect a person who has been assaulted while drunk or high to take on the additional burden of pretending they were “plied” with drugs or alcohol as the only route to the legitimacy of their experience of violence is doubly burdensome. It denies the larger reality of drug and alcohol use across the world as a route to pleasure-seeking and sociability. It favors only the sober victim, the old-school innocent victim against whom all the rest are measured. (261)

I am one and you are too? Narcissism, violence, lessons not learned, and the case of the Hot Chocolate rapist

 

On October 9, 2016, the Daily Mail (UK) reported the death of Harry Barkas, Australia’s so-called “hot chocolate rapist” who was convicted of drugging and assaulting women to whom he offered rides home from nightclubs. At the time, this offender’s exploits were covered as a serial rape case, rather than attempting to shoehorn it into the public drink spiking scare narrative. In Drink Spiking and Predatory Drugging: A Modern History (Palgrave Macmillan, 2016), I wrote about the failure of the press and other public health and safety communicators to learn about the nature of this crime from key American and Australian serial cases like Barkas’. Below, I provide an adapted excerpt from my book that refocuses on misplaced trust, context, and links to a chapter that discusses the dynamics of this crime.

From Chapter 6, Who and Where are the Druggers? 

(Other chapters are available as book previews at Amazon.com and Google Books)

 

[…] Chef John Xydias of Melbourne was accused of drugging, raping, and videotaping 13 women he had met through work. In some cases, he was introduced to his victims by a man named Harry Barkas, who was, at roughly the same time Xydias got caught, accused of being the “Hot Chocolate” rapist. Barkas, who worked in a medical clinic and had access to drugs, approached women as they left nightclubs and offered them a ride home. According to a 2008 Herald Sun article, he then offered them hot chocolate into which he had slipped tranquilizers and sleeping pills, including Rohypnol. Barkas was charged with a string of attacks between 1991 and 2005, and Xydias between 1995 and 2006. Both were in their mid-40s.

Xydias typically met women through the restaurant business, and Barkas sometimes did, too.  The Age, a newspaper in Melbourne, reported that one of Barkas’ victims worked at the same restaurant he did and regarded him as “an older brother or uncle.”   Xydias drugged and filmed many women while dressing them up and assaulting them. Upon sentencing in 2010, when he was convicted of 86 charges relating to 11 victims, he told the court that the women only lodged charges against him as vengeance for not continuing a relationship with them. Like other such serial offenders, he claimed that the acts were consensual and that the women were heavy drinkers and drug users.

While it may be the case that the reason nearly all of the men [accused of multiple attacks] say the acts were consensual is strictly a legal strategy—when the prosecution has a recording of your raping behavior, there are not that many defenses left—it is possible that pathological fantasy, on some level, has made this claim seem real to the offenders. They often see themselves as decadent nightlife hedonists who push the boundaries—so they think, well, why wouldn’t or shouldn’t their victims be? As in, I am one and you are, too. As edgeplay, they might even consider it relatively tame— “just” drugs. Xydias’ pre-sentence psychiatric report called him emotionally disconnected, as reported by the Sydney Morning Herald.  Barkas’ report suggested a narcissistic personality disorder; his ability to be accountable for his actions was limited; he was suspected of many more assaults than he could be charged with due to lack of evidence.

There was some question of Xydias’ relationship to Barkas. Though they were childhood friends and frequented the same venues, they did not, apparently, offend against the same women. Barkas appears to have been more sporadic with his assaults, with a suspected cluster taking place in the mid-1990s and another right before his arrest, leaving a gap of more than a decade, according to the Herald Sun. Although police suspected there must have been more victims in between, that is not entirely clear. Barkas was sentenced to 13 years and Xydias, 28.

The legendary public-place drink spiking, followed by a carry-off and assault, as we have seen, has too many moving parts to really be very common. What we find in its place, much more commonly, is voluntary intoxication followed by misplaced trust, or coevolving with it, and then victimization in a private setting. As with acquaintance rape generally, it is really the moment of misplaced trust that is exploited by the assailant. Intoxication helps, of course, in reducing the ability to resist unwanted sex, and as such, is simply another tool to facilitate an act of violence. Drugging can make detail retention hazy enough that the victim questions what really happened, and may be more reluctant to report it, though this amnesia is not guaranteed, any more than it is with large amounts of alcohol or voluntary drug ingestion. Culture then piles on by blaming women who drink for anything that happens after. On both individual and collective level, the gaslighting begins. Some gaslighters are better at this sort of thing than others. [I continue in the book by talking about the US case of Jeffery Marsalis]

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Forget the Screaming Headlines about Drink Spiking on Campus

The news and screaming headlines surrounding the release of a new research study on drink spiking focused on what was hailed as a surprising new discovery about the problem. Women’s Health noted that the percentage of people victimized was appalling, and Cosmopolitan seemed both horrified and somehow relieved that it wasn’t just “an urban myth.” I wonder what number of drink spikings might be taken in stride – I do hope the answer to that remains ‘none’ despite all the misleading fanfare. But you can’t blame the press entirely here. As a social science researcher and writer, I know that it’s very hard to control the media spin on your research, but a press release about the study issued by the American Psychological Association (APA) dodges the study’s limitations and also, oddly enough, its strengths.
“Just a Dare or Unaware?” by Suzanne Swan and associates is being published in the research journal Psychology of Violence. The featured findings do sound pretty dire. But taking a more granular look at the research — and giving better attention to the toxicology and other public health literature, should temper the creepy press enthusiasm a little here.
The researchers developed a pretty interesting survey data set on drink spiking, which suggests that about 7.8% of the college student respondents believed they’d been given drug-spiked drinks. It was an impressively large, multi-campus survey in the US (just over 6,000 respondents.) More than 1% said they’d spiked other people’s drinks. Swan and her associates carefully note that there’s no way to know whether the respondents were really drugged, or whether they mistook their symptoms of excess alcohol for something more sinister. As we can see, the press doesn’t seem to see that as much of a problem, and assumes that suspicion of drugging is indicative of it. It isn’t.
Most toxicology studies — including all of the ones briefly cited in “Just a Dare” — strongly indicate that most people who believe they’ve been drugged and seek help at emergency rooms have not been. Most commonly, they present with extremely high blood-alcohol levels, and sometimes common street drugs. If you want to read a good summary of this research, David Grimes article in The Guardian explains much of the consensus in the field, and reiterates scientists’ plea to pay greater attention to alcohol itself. (And here is a starter bibliography I put together for my recently published book on the topic, Drink Spiking and Predatory Drugging: A Modern History, from Palgrave Macmillan.)
That aside, it seems to me that the press, and to some extent the researchers, have kind of buried the real striking findings here. First, the new study sheds fascinating light on the myriad reasons for drink spiking — both the reasons as interpreted by people who suspect it was done to them and those that say they drugged others. It doesn’t actually refute the urban myth analysis; indeed, it largely supports it. The researchers unfortunately insist on using Weiss and Colyer’s 2010 article in Deviant Behavior and the article I co-authored in 2009 with Adam Burgess and Sarah E.H. Moore in the British Journal of Criminology as a kind of fake touchstone for an “it’s all an urban legend” trope, against which they present what they claim is their own “no, it’s not” data. But both of these articles were about the date rape drugging scare, and in particular the scenario by which a stranger slips a drug into a drink at a bar or party and then hauls off the compromised victim to a private place to sexually assault them. Other social scientists (Valverde and Moore; Berrington and Jones) have pointed out problematic aspects of this scaremongering, early on, from a gendered violence standpoint.
Also buried in Swan’s study is the finding that in a sample of 6,064 students, 67 report being drugged and then subject to unwanted sex (acceding to verbal coercion or hectoring, such as the threat to end a relationship), or actual forced sex. That’s 1.1% of the total sample, and 14.5% of the students who report a suspected drugging experience. (It looks like an additional 13 students suspect sexual victimization, but weren’t sure.) In other words, most people attribute drugging incidents to motives other than the chemically-facilitated rape that the press has touted as an omnipresent danger for more than 20 years. The “date rape drugs” scare has contributed to attempts to breathe new life into the War on Drugs and has people focused on so-called “predator drugs” that are mostly consumed voluntarily, for pleasure or to manage other drugs’ let-down symptoms. According to the respondents in Swan’s study who suspect they were drugged — about a third of whom were male — the some commonly surmised reasons were variations on intended fun and recreation (such as “to loosen me up” and “to have more fun.”) Some said it might have been for malicious reasons, or a mistake. A surprising number (47 respondents) said they just didn’t know.
As for the study’s claim that 7.8% is “higher than expected” — I suppose it all depends on how you see it: That’s honestly lower than even I would have expected, given the hype of the last two decades. I certainly can concur with Swan et al.’s conclusion that public health and public safety interests need to focus on developing interventions that “move beyond the exclusive focus on sexual assault and should address the varied motives of those who drug others.”

[15 scientific studies on drink spiking]   [a summary of scientific consensus on spiking]