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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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)