Three small clear bags, each containing different sort of pill, were shown to the jury Thursday, and submitted as evidence, in Commonwealth v. William H. Cosby. These, the court learned, were given to Cheltenham Township police, unsolicited, by Bill Cosby in January 2005 after he provided a statement in response to Andrea Constand’s allegation that he drugged and sexually assaulted her a year earlier in his suburban Philadelphia home.
There’s decided irony in a man facing three counts of aggravated indecent assault—as well as a chorus of women reporting he drugged and sexually molested them—voluntarily handing police what appeared to be the contents of his medicine cabinet. It’s one of the many telling details arising from day four of the Cosby trial, one that focused on the “he said” of the “he said-she said” dynamic that inevitably animates sexual assault trials.
Cosby is not expected to testify. Instead, his words, as recorded in police reports and a lurid sworn deposition, are being used by the prosecution to build its case. In this context, they are illuminating Bill Cosby’s strange and troubling schematic of what constitutes “consent.”
For most of the morning and early afternoon, witness Sgt. Richard Schaffer of the Cheltenham Township police, who investigated Constand’s 2005 allegation, took the stand. On Jan. 26 that year, Schaffer, along with the chief of police, traveled to New York City to interview Cosby. By then, the case was front-page news, a shocking accusation against a beloved comedian and celebrated family man. Cosby, who has a house in Philly, gave his statement in his lawyers’ offices in Manhattan. It was unusual to do it that way, Schaffer told the court: “People usually come to us.”
Montgomery County Deputy D.A. Stewart Ryan and Schaffer read the interview. In it, Cosby defined his relationship with the then Temple University staffer as both “social” and “romantic.” It turned “romantic” on her second visit to his house, he said, when they engaged in “petting, touching of private parts.” Afterward, walking into the hallway, he said, he lifted up her shirt and tried to kiss her breast. She said “No,” he recalled. He said he stopped.
Cosby’s version of events of a trip Constand took to see him Foxwoods Casino in Connecticut, where he was performing in 2003, differed from Constand’s. She said Cosby called her to her room for “baked goods,” then she sat on the edge of the bed, while he plopped down, and shut his eyes for 15 minutes before she left. Cosby said she was there two hours: “Andrea came up got into bed and we stayed on top of covers after 11:30.” He said “I held her in my arms and we talked.” They were clothed, Cosby said, going into detail about what he was wearing: “I had on pajamas. May I describe my pajamas? My pajamas consist of long shirt goes to the knees then long pajama pants.”
The interview confirmed an unsettling piece of testimony before the court given by Andrea Constand’s mother, Gianna Constand, on Wednesday. Cosby acknowledged: “I said to her mother, guaranteeing her that were was no penile penetration.” He also told her about “petting, and the touching of private parts.”
Cosby didn’t tell Constand’s mother what kind of pill he’d given her daughter. He told police it was over-the-counter Benadryl; he took two pills when he needed to sleep, he said. He contended Constand never asked what they were, contrary to Constand testifying that she had asked and Cosby assured her they were herbal medication.
Cosby used an apparently favoured word, “petting,” to describe the encounter: “We began to pet—touching and kissing with clothes on.” Asked if Andrea ever asked him to stop, Cosby said no, adding he put his hands under her clothing and touched her bare breast and genitalia. He said she never said she was affected by the drug, or felt paralyzed or asked him to stop. He said his clothes remained on. Asked if he had sexual intercourse with Constand, he responded, “Never asleep, or awake,” a cryptic response that will give pause to anyone familiar with laws surrounding consent.
When asked why they didn’t have intercourse, Cosby indicated he didn’t want to: “I never intended to have sexual intercourse, like naked bodies, with Andrea. We are fully clothed; we are petting. I enjoyed it. Then I stopped and went to bed.” In the next sentence he provided a slightly different version: “We stopped and then we talked.”
In the interview, Cosby described the woman who’d just alleged he’d sexually assaulted her, as “truthful” and a “very open, natural, easy going person.” When asked if he’d known her to be untruthful,” he said “No.”
Inconsistencies abounded. Cosby told the officers he saw himself as a mentor, who genuinely liked Constand and was interested in her career. Later, he suggested Constand had attention deficit disorder, a learning disability and trouble “making connections.” He also said he’d tired of the relationship. “It just became work,” he said, adding: “I got a headache telling her what to do or how not to do something.”
At the end of the meeting, Schaffer told the court, Cosby summoned his driver who produced a bag with pill bottles in it. Cosby handed over one and a half pink oblong pills, a round green pill and a smaller white pill. “He said one was for his heart, the green one was herbal and I don’t recall if the other was Benadryl,” Schaffer said (the toxicology of the drugs has yet to be presented to the court). Schaffer told the court the investigation was shut down by the then-Montgomery County D.A. while police were still working the case—just hours before officers were set to meet to to plan their next steps.
Schaffer was discernibly chippy on cross examination by Cosby’s lead defence lawyer, Brian McMonagle. He clarified points and refused to have words put in his mouth. When McMonagle pointed to Constand changing the date of the alleged assault in her statements to police, a cornerstone of the Cosby defence, Schaffer noted she later said she had been “mistaken” and that it’s the complainant’s right to revise prior statements. He also corrected the lawyer when he presented Cosby’s statements as fact. “It’s his version of events,” he said. When the lawyer cited Cosby’s statement that he’d respected Constand’s “no” when he’d lifted her shirt to kiss her breast, Schaffer was derisive: “He was a gentleman there, sir,” the officer said, his voice dripping with sarcasm. He’d repeat it: “He was a real gentleman there.”
Schaffer was followed by Montgomery County Dectective James Reape who came to the case in 2015. He said they were “looking at some things that weren’t done, evidence not evaluated” in 2005. He read from the deposition Cosby gave in the 2005 civil suit Constand filed that was settled with an undisclosed financial settlement and confidentiality agreement. Unsealed by a federal judge in 2015, this document gave police the impetus to reopen Constand’s case. The defence team tried to keep it out of evidence in this case, but their arguments were overruled by Judge Steven O’Neill. Cosby’s lawyers are still fighting to exclude certain sections.
In the deposition, Cosby offered insight into how he viewed “romance “ as involving “steps that lead to some kind of permission or no permission or how you go about getting to wherever you’re going to wind up.” When asked “Permission for what?,” Cosby answered: “Any number of things. Whatever the two people want together … Doesn’t necessarily mean sexual … Permission to do whatever the two people accept.”
MORE ABOUT BILL COSBY:
- Bill Cosby’s Canadian accuser stands tall at his trial
- Bill Cosby’s accusers are already under attack at his trial
- The public theatre of the Bill Cosby trial
- Bill Cosby finally goes to trial: FAQ
When asked, “So you’re not telling us that you verbally asked her for permission?” Cosby mapped out his M.O. with Constand, a strategy that sounded disturbingly like negative-option billing. Inviting her to his home, he tested boundaries: the two would kiss and, he said, he would touch her buttocks, then her bare midriff. “I got her skin and it’s just above the hand and it’s just above where you can go under the pants.” During her second visit to his house, he said, he put his fingers into her vagina. He said he was moving slowly and waiting for a response. When he received none, he proceeded. “I’m giving Andrea a chance to say yes or no in an area that’s right there in the question zone,” he said of that instance several months before the night of the alleged attack. He also reported he believed Constand had reached an orgasm. Even though she touched him through his pants, he said, he did not have an orgasm (in his 2005 police statement, Cosby said he’d only had an erection on one occasion with Costand, the second time they were together at his house, or as he put it, “the time she said no”).
In Cosby’s telling, Constand didn’t say anything. “And I don’t feel her say anything,” he said. “And so I continue and I go into the area that is somewhere between permission and rejection. I am not stopped.” Yet he also said Constand rebuffed him when he tried to kiss her breast: “Andrea said to me either one of two words—’Stop, no’—I pull back.” Yet he’d speak of her exuding a “sexual glow,” adding: “And I take her, still feeling the glow, still feeling that the two of us are warm, not lovers, but warm. We’ve exchanged some kind of sexual feelings.” She didn’t look angry, Cosby said. “She does not say to me, ‘Don’t ever do that again.’ She doesn’t walk out with an attitude of a huff, because I think that I’m a pretty decent reader of people and their emotions in these romantic sexual things, whatever you want to call them.”
In her testimony, Constand told a strikingly different story: Cosby attempted to unbutton her pants but she deflected him by learning forward.
In the deposition, Cosby said on the night of the alleged drugging and assault, he he gave Constand one-and-a-half Benadryl divided into three pieces. He called the pills “three friends.” Again, he said Constand didn’t ask what she was taking.
They talked and then went to the sofa, he said. “But then we began to neck and we began to touch and we began to feel and kiss and kiss back.” He said he “opened my top… Then I lifted her bra up so our skin could touch. We rubbed. We kissed.” He described a passive Constand: “I moved back to the sofa, coming back in a position. She’s on top of me. I place my knee between her legs. She’s up. We kiss. I hold her. She hugs. I move her to the position of down. She goes with me down. I am behind her. I have this arm, her neck.”
The court was silent as they heard Cosby describe the tortured configuration: “I go inside of her pants. She touches me. It’s awkward. It’s uncomfortable for her. She pulls her hand—I don’t know if she got tired or what. She then took her hand and put it on top of my hand to push it in further. I move my fingers. I do not talk. She doesn’t talk. But she makes a sound which I feel was an orgasm … she relaxed her hand after pressing it during her sound. I relax. I pull my hand out after a wait of a while. I don’t say anything. I then make a move to get out.” He said he sat waiting for Constand to sleep: “I sit there and I ask her to please take a nap. Please take a nap.” He then went upstairs.
The next morning, Cosby testified, he gave Constand a blueberry muffin and tea. “She is not asking me a darn thing in a negative,” he said. “She’s giving no viewpoint of anything negative having happened to her. And I sat there and I watched her eat the muffin. I don’t think she ate all of it.”
The reading of Cosby’s sworn deposition, expected to include the parts in which he describes his past use of drugs in sexual encounters with other women, continues on Friday.