We’re still asking the wrong questions about the Bill Cosby rape allegations

Why would someone wait for 40 years to speak up about their rape? The answer isn’t what Damon Wayans thinks.

“How big is his penis that it gives you amnesia for 40 years?”

In a recent interview with Power 105’s The Breakfast Club, comedian Damon Wayans, star of In Living Color and My Wife and Kids, joked about the recent rape allegations against Bill Cosby, while sharing his own thoughts as to why Cosby’s legacy shouldn’t be tarnished. Due to Cosby’s comments on black men, Wayans argued that many are looking for an opportunity to retaliate, claiming that the women coming forward are money-hustling liars and “unrapeable.” His comments quickly went viral, and the Internet responded.

Damon Wayans has since apologized after the backlash, saying: “For anybody who was raped by Bill Cosby, I’m sorry, and I hope you get justice.’” But in Wayans’ comments, we can see how stacked the deck is when it comes to justice for survivors. Damon Wayans argues that the amount of time many of these women waited to come forward—now numbering over 50 women—shows that their stories are automatically suspect and should be treated with a grain of salt. 

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However, it really shows that we need to rethink how rape is prosecuted, while also finding other ways to support survivors outside of the criminal justice system. When it comes to a crime where many victims do wait years—often decades—to seek justice, a statute of limitations on sexual assault will only further prevent survivors from speaking up to begin with.

In Wayans’ comments, we can see how stacked the deck is when it comes to justice for survivors.

One of the complicating factors in the Cosby case is the amount of time that has passed, since the majority of alleged assaults took place over the span of 50 years. Barbara Bowman, an actress drugged and raped by Cosby as a 17-year old in 1985, writes: “He can no longer be charged for his crimes against me because the statute of limitations is long past. That is also wrong. There should be no time limits on reporting these crimes, and one of my goals is to call for legislation to that end.”

Thirty-four states and Washington, D.C. have statutes of limitations in rape cases, the legal term for the window in which you can prosecute a suspect for sexual assault, and those policies vary wildly from state to state. For this reason, Lise Lotte Lublin—who accused Cosby of drugging and assaulting her in 1989—testified in support of a Nevada bill that will extend the statute of limitations for criminal prosecution of rape. Previously, the state’s law only prosecuted rape within four years, but the proposed law will increase the statute of limitations to 20 years.  

Understanding how the statutes of limitations can deny justice can help us better comprehend how “innocent until proven guilty” fails many survivors. The View co-host Whoopi Goldberg has long dismissed the accusations against Cosby, on the grounds that nothing has been proven. Without a court ruling, Goldberg—and others who share her viewpoint—chalked it up to hearsay. “As more information comes out, people can make judgments,” Goldberg argued. “I don’t like snap judgments.”

However, she recently had a change of heart when she learned the legal hurdles that many survivors face. As the L.A. Times reported, Goldberg had no idea that “the man accused of rape by more than four dozen women could not be taken to court regarding the vast majority of those allegations, which run from the 1960s into the 2000s.”

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But in an essay for Bustle, Lauren Holter argues that there’s a legal logic behind these policies. “The main reason for having statutes of limitations in these cases, similar to other crimes, is that it becomes much harder to prosecute a suspect years after the criminal act took place, as victims’ and witnesses’ memories fade, and evidence disappears,“ Holter writes. “The statutes also serve to give suspects some closure, so they don’t live their whole life with an allegation that hasn’t gone to trial.“

Holter raises an important point: These statutes of limitations don’t exist for other crimes—including murder. That’s because, in homicide cases, the dead body serves as tangible, indisputable evidence, regardless of how much time has passed. Many murder cases involve rape, but when the survivor does just what the word implies and survives, the violence they face doesn’t leave the same trail.

Without a court ruling, Goldberg—and others who share her viewpoint—chalked it up to hearsay.

According to Northwestern University professor Deborah Tuerkheimer, that gray area extends to the definition of rape itself—which provides a further barrier to justice. “The Model Penal Code and a majority of states still retain a force requirement, effectively consigning most rape—that is, non-stranger rape—to a place beyond law’s reach,” Tuerkheimer writes

Although it varies by state, definitions of rape only sometimes require affirmative consent, while other states might have a force requirement. Oftentimes, the law can still leave “blurred lines” between rape and sex, which are two distinctly different entities. Thus, it’s not just the statute of limitations that’s the issue—the legal definition of rape itself hurts survivors.

If the law is a searing testimony to why anyone would wait 40 years to come forward, it’s not just a matter of the justice system. It’s also about the psychology of abuse. 

As Deborah Khosabah argues in Psychology Today, one of the hardest things about coming out as a survivor is “making it real.“ She writes, “Victims of sexual abuse often deny the abuse themselves, pushing it out of awareness and burying it somewhere deep inside of them… Once it’s out there, there’s no putting it back.” While that stigma may keep some silent for years, it may keep others from coming forward at all.

However, there are ways society can evolve to make it easier for survivors to come forward, and that starts by listening to their stories. The problem isn’t that some women are “unrapeable,” it’s that so many, like Damon Wayans, are still so unwilling to believe survivors. It’s easier to believe that Cosby is innocent than to ask the hard questions about the realities of sexual abuse and the struggles of the women he allegedly assaulted. Whether or not a survivor chooses to seek justice through legal channels, we should all be striving to build a more compassionate society that supports survivors, in any means possible.

Instead of asking an insulting and inaccurate question about how a woman could “forget” her own sexual assault, we need to create a world where the stories of these 50 women are never forgotten.

Suey Park is a writer and activist based in Chicago.

Screengrab via tonyfamous/YouTube