Cosby’s Scorched Earth Strategy

After months, er, years, of tight lips about sexual assault allegations, Cosby, via his legal team, has come out swinging against his accusers and the media.   The NY Post reports that a “battalion” of private investigators received six figures to tunnel into the private lives of the women accusing him of sexual assault. Even aggressive attorneys are criticizing the “scorched-earth strategy” reportedly implemented by Cosby’s lawyer, attorney-to-the-stars Martin Singer, to sling dirt at the victims, hush and insult them, and then blame the media.

Co-opting the military term, a scorched earth strategy perfectly describes the legal defense used in sexual assault cases. That is, destroy anything that might be useful to the enemy while bulldozing through their territory.  Pre-emptively annihilate resources available.   Punitively ruin anything of value to the opponent. In war, it’s usually food and energy supplies and natural resources most vulnerable. Scorched earth strategies have appeared in most major wars, used at times by Hitler, Stalin, Napoleon.  Agent Orange was itself a scorched earth tactic when Americans used this herbicidal warfare tool to kill crops and foliage during the Vietnam War.

In sexual assault cases, it’s long been true that anything negative about a victim’s past can be used against her, creating a victim-on-trial situation.  The thing that’s different with Cosby is that there aren’t even legal proceedings pending.  Except for, oh, the adjudication underway in the court of public opinion.  By hiring investigators to sniff around, he’s sending a don’t-you-dare message to the victims.  On top of that, though, results of the muckraking are already being published, such as the report of the conversation a PI had with one victim’s (Beverly Johnson) ex-boyfriend. Singer chastised the media for publishing false information, claiming that the account of Johnson’s ex-boyfriend undermined hers.  However, Singer failed to mention that this same ex also pled guilty to and was the subject of a criminal protective order filed by Johnson

Could this amount to witness/victim intimidation?   To the extent that these invasions do cause damage to the victims, it could actually re-set the statute of limitations clock which for many has already expired in civil court.

Absurd is that it’s Martin Singer of all people behind this strategy of humiliating victims into submission, using the threat of privacy exposure to silence them.  You know why that’s absurd?  Because a couple months ago he was storming the likes of Google grandstanding for sexual privacy on behalf of women.  He threatened to sue Goggle for $100m on behalf of his celebrity clients whose nude images were stolen and released without consent.  Though he was on shaky legal ground with the threat to Google, his verbiage about sexual privacy was notable, describing it as a “basic human right.”  Singer claimed that Google “acted dishonorably allowing and perpetuating unlawful activity that exemplifies an utter lack of respect for women and privacy.”  He went on to say “If your wives daughters or relatives were the victims of such blatant violations of basic human rights, surely you would take appropriate action.”

Singer has done other praiseworthy work in the name of privacy, such as representing pop stars to prevent unauthorized sex tapes and personal diaries from being sold.

But I guess for some attorneys, ethical stances adapt according to who’s paying the retainer.  With his work for “America’s Dad,” Singer has done a 180, now orchestrating the types of privacy invasions he so recently condemned.

One last thing about the media threats: I can’t help but add that Singer’s threats to the media (Buzzfeed, CNN, The Daily News) after they published unflattering portrayals of Cosby is a little quaint. It’s arrogant, outdated, and naïve for him to think that his client, an ugly-sweatered schlub who once hocked pudding pops, has the gravitas to sway the media like this. Our media has bigger things to worry about, like North Korea.

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