Re-opening a Case Without New Evidence

7 million drugs for non-medical purposes      Some seven million people a month use prescription drugs for non-medical purposes. According to the National Institute on drug abuse 52 million people above the age of 12 have illegally used prescription drugs for non-medical purposes[1]. It is obvious that the use of prescription drugs for non-medical purposes is quite common.

Totonto Star Jan 21 2005

Notice that Constand just said “some pills that made her dizzy.” She does not say prescription medication. Even in her lawsuit in March, 2005, Constand did not mention prescription drugs as being involved in her case:

lawsuit in March 2005

It is evident that DA Kevin Steele and DA Risa Vestri Ferman did not find new evidence against Dr. Cosby when portions of his 2005 testimony were released in July of 2015. Rather, it appears that they used the new information released by Judge Robreno to manufacture new evidence against Cosby and bring a new and different case against him. Because the 2005 testimony had nothing to do with Constand’s 2005 case, it was not the reason Steele reopened the case.  It seems reasonable to conclude that Steele only used the new information as an excuse to create new charges against him.

The only new information released in the memoranda released by Judge Robreno in July 2015 was that Dr. Cosby had shared a prescription drug with a lover 39 years earlier. Cosby had admitted when questioned by Ferman on January 26 2005 that he had shared an over-the-counter cold medicine, Benadryl, with Andrea Constand before engaging in sex with her. The charge that Constand was bringing against Dr. Cosby was not that he used a prescription drug to incapacitate her, but that he gave her drugs that made her “dizzy” and she poorly remembered that he touched her breast and put her hand on his penis. She did not know the name of the drug that he gave her or whether it was a prescription or non-prescription drug. If Dr. Cosby gave her a prescription drug or a non-prescription drug it did not matter. The question was whether he gave the drug to her in order to drug her and have sex with her or not. DA Castor said that there was not enough evidence to charge Cosby. He said nothing about a prescription or non-prescription drug. Nobody did in 2005.

Steele makes a big deal out of the fact that Cosby, according to him, used a prescription drug, bringing forward this brand new, 2015, never-heard-before testimony from Constand’s mother:

He would have to look at the prescription bottle

This bringing up of a prescription bottle seems meant to tie in with Cosby’s quaaludes admission in 2005. If she had mentioned a prescription in 2005 then Steele could have somehow tied Cosby’s 2005 testimony to the 2005 case. As it is, mentioning it in 2015 for the first time after Cosby’s testimony was publicly released just means that she read about it in July 2015, or her daughter told her about it or Steele’s gang of detectives who interviewed her told her about it. It does not show that Cosby’s prescription drug testimony had anything to do with the 2005 case.

Sharing a prescription drug is a misdemeanor crime. It is a quite different type of crime than the crime that Andrea Constand described. DA Ferman was in charge of the investigation of Cosby in 2005. If she felt that Cosby had committed a crime by sharing a prescription drug, she could have asked him when she interviewed him on January 26 2005 for several hours. She did not.

If, in 2005, Dr. Cosby admitted he illegally shared a prescription drug 29 years earlier with a lover, and it became known during the initial investigation, it certainly would have not changed the decision by DA Castor or any DA that there was not enough evidence to prosecute him on the charges that Andrea Constand brought.

One could argue that the new evidence is that Dr. Cosby illegally gave a prescription drug to someone 39 years ago. Is this evidence for the crime of illegally giving someone a drug to incapacitate them and sexually abuse them? Absolutely not. People break the law to give other people prescription drugs for all sorts of reasons – to make money, to gain friendship, to do a friend a favor, to help a sick person who can’t afford the drugs, etc. Tens of Millions of people share prescription drugs. One recent 2014 study found:

     The prevalence rate for borrowing someone’s prescription medication was 5% to 51.9% and for lending prescription medication to someone else was 6% to 22.9%. A wide range of medicines were shared between family members, friends, and acquaintances…Sharing of many classes of prescription medication was common.[2]

According to the National Institute on drug abuse 52 million people above the age of 12 have illegally used prescription drugs for non-medical purposes. It is quite common to share prescriptions medications, done by ten million people a year. On the other hand, cases of people deliberately using drugs to make a long time friend dizzy and then sexually abusing them is extremely rare. We can figure out how rare by looking at the results of a 2013 recent study at a sexual assault center in Norway http://www.ncbi.nlm.nih.gov/pubmed/23910880%5B3%5D. They studied 264 sexual assault cases and this is the key finding: “57 patients (22%) suspected proactive DFSA, but only five had findings of sedative drugs that were not accounted for by self-reported voluntary intake. No cases could unequivocally be attributed to proactive DFSA.”[ DRSA stands for drugging-facilitated sexual assault.]
In other words, 57 patients thought they had been drugged with sedatives, but only 5 had sedatives in their body. It was impossible to tell if they had taken them voluntarily or not. At least 92% of women who thought they had been drugged were not. This alone suggests that there’s less than a 8% that Constand is correct when she says that she was drugged.

Five out of 264 would indicate that sedatives are used in about 2% of sexual assault cases. If we take the 2% statistic and apply it to the number of police reported sexual assaults in 2005 (Constand reported her sexual assault a year after it happened) we get this: 2% of 93,934 reported sexual assaults (https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2005) = 1,879. This is a reasonable estimate of how many drug-facilitated sexual assaults were reported in 2005. Let us assume that every single one of those reported assaults were true and involved sedatives and was done by a different person. If we assume 50 million people have illegally used prescription drugs for non-medical purposes, the odds are 26,609 to one that any person illegally using prescription drugs for non-medical purposes committed a drug-facilitated sexual assault. There is no connection between using prescription drugs for non-medical purposes and using drugs to assault a person.

There is no connection between the two behaviors. One can make an analogy to bouncing checks and robbing banks. Tens of millions of people write bad (bounced) checks each year. There were about 6,957 bank robberies in 2005 (https://www.fbi.gov/stats-services/publications/bank-crime-statistics-2005/bank-crime-statistics-bcs-2005). Bouncing a check at a bank and committing armed robbery are both illegal. That is about all they have in common. Bouncing a check does not make you any more likely to rob a bank. If someone is accused of committing armed robbery and the DA finds that there is not enough evidence to prosecute that person in 2005, it would be absurd and illegal for a new DA 11 years later to reopen the case because he found that the accused person had once bounced a check at another bank 39 years earlier. This is the same type of absurdity and illegally that went on with DAs Ferman and Steele in the Cosby case.

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[1] http://www.drugabuse.gov/related-topics/trends-statistics/infographics/popping-pills-prescription-drug-abuse-in-america
[2] In a study funded by the U.S. Justice Department in 2005, 45 different drugs that “have been or could be used in DFSA (drug-facilitated assisted sexual assault) were studied. Quaaludes was not included.

The report studied 144 “willingly enrolled” women who went to clinics claiming that they had been drugged and sexually assaulted.  The study found only 40% of the women truthfully reported their illegal drug use. It concluded “the subject’s own drug use was more likely a factor in facilitating a sexual assault than surreptitious drugging.

Estimates of the Incidence of Drug-Facilitated Sexual Assault, Negrusz, Adam, Juhascik, Adam, Gaensslen, R.E.

[3] http://www.medscape.com/viewarticle/824561 American Journal of Public Health,

Prescription Medication Sharing: A Systematic Review of the Literature, Kebede A. Beyene, MSc; Janie Sheridan, PhD; Trudi Aspden, PhD

[4]J Forensic Leg Med. 2013 Aug;20(6):777-84. doi: 10.1016/j.jflm.2013.05.005. Epub 2013 Jun 25. Ethanol and drug findings in women consulting a Sexual Assault Center — associations with Clinical Characteristics and suspicions of drug-facilitated sexual assault.Hagemann CT, Helland A, Spigset O, Espnes KA, Ormstad K, Schei B.

 

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Philosopher Jay

I have a Ph.D. in Philosophy from the University of South Florida. I am currently teaching Philosophy courses at a local Florida college. I have a wife who is a Montessori school teacher and a 21 year old daughter and 2 year old granddaughter.

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