More than a ruling: the insidious effect of overturning the Cosby conviction for survivors

By: Elizabeth Fegan

Jessica had a full life. She was finishing a grueling veterinary surgery fellowship while raising her kids as a single mom. She was tough and had long lived by the belief that hard work and dedication led to success. This determination is also what drove her years ago as a star student athlete, a track standout who competed at the highest levels.

Amid her memories of athletic prowess were darker recollections of being groomed and later sexually abused by her college track coach, which had been haunting her for years. She did the right thing back then, filing a complaint with the school. But when the school dismissed her coach’s actions as inappropriate but not sexual, Jessica did what many victims do – she tried to bury the memory and move on with her life. That was until her surgical assistant told her she had an important call. The name of the caller jarred her— it was a fellow student athlete to whom she hadn’t spoken in years.

Jessica took the call. Her former competitor broke down and told her she was also abused by the same coach. Later, a third woman came forward and shared a very similar story – the coach methodically gained their trust and sexually abused each of them at different times, and at different colleges.

These three women, buoyed by their collective strength, decided to speak up and speak out. My firm took their case, and brought a lawsuit against the coach, John Rembao, who at the time of filing was still coaching track, then at a high school.

SafeSport, the organization that oversees coaching, suspended Rembao last year after my clients came forward with their claims.

For survivors of sexual assault like Jessica and her fellow student-athletes, coming forward can be a traumatic experience, but it also has the power to do social good, as it did in the Rembao case. However, we know survivors’ willingness to go public with their stories isn’t common.

When I talk with sexual assault survivors, I hear their reluctance to step forward. It usually involves a mix of misapplied guilt: ‘what did I do to deserve this?’ and fear that they will be the ones held in judgment, facing a deluge of rhetoric that they are at fault for the abuse or are just seeking attention or money.

Others don’t report because they fear retaliation will affect every aspect of their lives, possibly undoing the very fragile balance they’ve managed to navigate after experiencing trauma. The facts paint an even bleaker story, revealing a system that is stacked against survivors from the beginning. The Rape, Abuse & Incest National Network (RAINN) reports that out of 1,000 sexual assaults, 975 perpetrators go free.

It has been a long battle to give survivors the voice they deserve in seeking justice, and we’ve seen some glimmers of hope.

The #MeToo movement has empowered survivors, largely women, to stand up and speak out against their abusers, demanding large-scale change for protections and, importantly, accountability. This was never more apparent than in my work on the civil sexual assault case against Harvey Weinstein. For these women, the rallying cry wasn’t just justice – it was change.

We saw other advancements on the legal front. Recognizing it takes time for survivors to come to grips with their abuse – as we saw with Jessica and the student-athletes – many states have extended the statute of limitations, the window in which victims can pursue allegations of abuse, or opened look-backs that revived expired claims of childhood sexual abuse.

There are also significant issues remaining that hamper our ability to hold abusers accountable. For example, under current law, members of a board of directors could be held accountable for financial indiscretions in a court of law. But as we saw with the Weinstein board of directors – the same board that Weinstein handpicked to buoy his power and leverage his social currency, with full knowledge of his misconduct—the courts shielded the directors from any consequence.

Then we come to the recent decision to overturn Bill Cosby’s conviction. While his release was the result of the court’s decision, it nonetheless rattled our collective sense of fairness and propriety.

I could rail on various aspects of the ruling. The most galling is that, after the original district attorney (DA) investigated the rape claims, he entered into a gentlemen’s agreement with Cosby, effectively saying that his office would never bring criminal charges against Cosby regardless of any additional evidence or admissions.

The fact that the state supreme court gave credence to this bargain was wrong, pure and simple.

The ruling is a gut-punch to sexual assault survivors and advocates who were starting to believe that survivors could find justice. Cosby’s own self-incriminating statements, we all thought, would certainly support his conviction. The lower court’s decisions to uphold that conviction led us to believe that the system was finally taking seriously the allegations of sexual abuse against powerful men. The state supreme court’s decision to overturn that conviction has shattered our collective hope.

But the most damaging aspect of this ruling is that survivors, like my client Jessica, may rethink their decision to step up and share the painful truth in order to pursue their claims. They might now conclude that the deck is stacked, and they should sit down and be quiet.

I am not done with the fight and will continue to push for changes to ensure the rights of survivors.

One of the first ways we can do this is by insisting on transparency in the criminal and civil systems. The fact that the DA’s agreement wasn’t part of the official record is a concern that should sound alarms across the profession. We rely on this transparency so we don’t isolate and protect wrongdoers.

We also need to continue to rethink how we set statutes of limitations and how we can better account for the trauma of lived experience, recognizing that many survivors may take time to report or pursue civil claims, especially as police and prosecutors conduct investigations.

Finally, we need to continue to utilize the full weight of the system to hold serial abusers accountable. This includes using claims like the Trafficking Victims Protection Act (TVPA), which is the federal sex trafficking law, to prosecute people like Weinstein and Cosby who use their power to isolate victims they intend to abuse. The more that we pursue these cases, the more we can right the scales of justice and effect meaningful change.

This isn’t the first miscarriage of justice, and it won’t be the last. For the sake of survivors, we can and must do better to dismantle a system that propagates a legacy of reluctance and silence so survivors, again, are empowered to speak up.

More information on the Rembao case can be found here.


Read the op-ed on NBC here.