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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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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