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Susan Estrich commentary: Another avenue of justice: Judy Huth v. Bill Cosby

Summary: Judy Huth waited nearly 50 years. That is one long-delayed victory. But the fact that Bill Cosby will finally have to pay for what he did that night should give pause to those who would prematurely declare the death of the #MeToo movement at the hands of Amber Heard. Forget about Heard.

Bill Cosby
Actor and comedian Bill Cosby arrives in 2018 at the Montgomery County Courthouse in Norristown, Pennsylvania, for a pre-trial hearing on sexual assault charges.
.(REUTERS)
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Sometimes justice delayed is still justice. That was the case this week for Judy Huth, who met once-beloved comedian Bill Cosby back in 1975 and was 16 years old when he sexually assaulted her while giving her a tour of the Playboy Mansion. A California jury found that Cosby intentionally caused harmful sexual contact with Huth, and awarded her $500,000 in damages.

Susan Estrich
Susan Estrich commentary
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Huth described herself to reporters as "elated" by the verdict. "Seriously, it's been so many years, so many tears, just a long time coming."

One of Huth's attorneys, the prominent feminist lawyer Gloria Allred, said that the victory represented "real change" by showing that "there is another avenue of justice," through the civil system that "held (Cosby) accountable for what he did to her."

There are important differences between the criminal and civil route, both in terms of the possible penalties -- loss of liberty versus damages -- and the standards of proof. In a word, it is easier to prove sexual misconduct by a preponderance of the evidence than it is to prove rape beyond a reasonable doubt.

Huth was lucky in one regard. She did not go to the Playboy Mansion alone that night. She went with a friend; the friend brought a camera and went on to testify in her behalf almost half a century later.

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Most of the time, sexual assault doesn't happen in front of witnesses. While the formal requirement of corroboration, once uniquely applied in rape cases, has been abandoned as a matter of law, in practice it remains critically important, especially in cases involving nonstrangers. Criminal convictions for rape are still more difficult to secure than convictions for other crimes, in part because of the stigma rape carries but also because of the unique problems of proof.

Consider this: We are much more likely to believe a woman would have sex with a man she doesn't know very well than, say, give her car to him.

The significance of Huth's case is that it points the way to another route for retribution. A civil judgment compensates, and even without the award of special punitive damages, it also punishes. The harm done to Cosby by the jury's verdict far exceeds the value of the check he will at long last be writing to the now 64-year-old woman.

A civil judgment also offers a form of closure that many victims have sorely missed, having been discouraged from filing a complaint at the time, or having been told that their case will be hard to sell to the jury who is being asked to permanently brand the accused.

Thirty-something years ago, in a moment of some despair about the difficulty of changing rape law, I asked my then research assistant to look at the civil route to retribution. Many rapists are judgment-proof, it is true, but men who abuse their power to secure sex often have significant assets. Moreover, even where the defendant is simply not worth suing, there may be third parties who failed in their duties to light the stairwells in the parking lot or provide security in the hotel. Third party liability is yet another route.

Judy Huth waited nearly 50 years. That is one long-delayed victory. But the fact that Bill Cosby will finally have to pay for what he did that night should give pause to those who would prematurely declare the death of the #MeToo movement at the hands of Amber Heard. Forget about Heard.

The heroes of the summer are the women who remembered, her friend who kept the pictures, the lawyers who stood by her and the jurors who believed her. All told, a far better picture than the one that emerged from the Virginia slugfest that was the Heard-Depp trial. There is, as Allred said, "another avenue of justice."

Susan Estrich can be reached at sestrich@wctrib.com .

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Related Topics: COMMENTARYCRIME AND COURTS
Opinion by Susan Estrich
Susan Estrich is an American lawyer, professor, author, political operative, and political commentator. es. She can be reached via sestrich@wctrib.com.

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