Bill Cosby's legal issues have dominated the news in the past couple of weeks. Here are a few thoughts on the legal aspects on the civil claims.
Defamation is a claim that someone has made a false statement that causes damage to reputation. There is a check list of things a person must prove in a defamation case. The law refers to these as the "elements" of the claim. These allegations arise from alleged sexual assaults, so why not just make a claim for assault?
Most likely, this involves the statute of limitations. The "statute of limitations" is the time limit someone has to file a claim in court. In Oregon, a case like this would have to be filed within two years of the date of the assault, but there are exceptions. Many of these plaintiffs are alleging defamation because the statements of denial are recent, and the claim is viable in that it can be filed in court. Proving defamation, however, is another issue.
The best defense to a defamation suit is to prove that the defendant's statements are true. So, in the end, this is going to be a case about whether Cosby committed the assaults as alleged.
If this were an Oregon case, there are three potential categories of damage that the Plaintiff's can claim. Economic, Non-economic, and Punitive. Economic damages are those kinds of damages that are objective, and verifiable. For example is someone defamed a business, and the business owner can link that statement to actual income loss, that is an economic loss.
Non-economic damages are the subjective, non-monetary losses. In this case, the plaintiff's are alleging that allegations that they consented to these relations has harmed them emotionally, and has caused embarrassment and humiliation. There are a lot of issues to talk about here given the allegations involved.
Then there is the issue of punitive damages. I like to call these "punishment" damages. In Oregon, a plaintiff can, at a certain point after filing her case, allege punitive damages. These damages are available if the plaintiff can show that the behavior "far exceeds the bounds of socially tolerable conduct." Drugging and raping a woman, if proven, is solid ground for proving punitive damages. Some states, like Washington, do not allow punitive damages, but Oregon does. If the plaintiff proves punitive damages, the State of Oregon gets a large percentage of the recovery to help crime victims.
The Counter Suit
Cosby filed a counter suit, and quickly learned that you have to pick your battles. A counter claim happens when a defendant is sued, and points his finger back at the plaintiff, claiming the plaintiff committed some wrongful act, and that the plaintiff suffered harm. In this case, Cosby is alleging the very same kind of claim, defamation, against the plaintiff's. The plaintiffs seized on this opportunity, and are wanting to depose Cosby's wife. Cosby resisted, but lost. He raised an issue, and that opens the door to these alleged victims to explore the issues he raised in his counter claims.
The Criminal Case
Stating the obvious, this is a problem for Cosby. The criminal charges in Pennsylvania, if proven, shuts down any defense of a civil claim arising from that case. It's the opposite of what happened in the OJ Simpson civil case. This is is because the prosecutor must prove the allegations beyond a reasonable doubt. In a civil case, but proof must only be more likely than not. So, with a criminal conviction, the liability portion of the civil case is automatically proven.
Judging by the tenor of Cosby's criminal defense team, this case is far from over. Another obvious statement.