The trial of Bill Cosby, the actor and comedian known as “America’s Dad”, ended in a mistrial last Saturday. The judge was forced to declare the outcome after the jury remained deadlocked after deliberating for 52 hours over six days.
Cosby was being tried for drugging and sexually assaulting Andrea Constand at his home outside Philadelphia in 2004. The charges include three counts of felony aggravated indecent assault, each covering a different aspect of the alleged crime. Count 1 alleges that Cosby did not have consent when he inserted his fingers in Constand’s genitals, Count 2 alleges she was unconscious or semi-conscious at the time and could not consent, and Count 3 alleges all of this occurred after he gave her an intoxicant that impaired her.
Dozens of other women have accused Cosby of drugging and then molesting and sexually assaulting them--Cosby has an additional 10 civil lawsuits pending against him. However, only one of these other women, Kelly Johnson, was allowed to testify in the Constand case. Johnson has accused Cosby of drugging and molesting her at a Los Angeles bungalow in 1996. The prosecution had wanted to put 13 others on the stand, but in February Judge Steven O’Neill ruled the others couldn’t testify on the grounds that it would prejudice the jury against Cosby. Even 482 kilometres away in Pittsburgh and sequestered since the trial began June 5, the jury of seven men and women were still unable to reach a unanimous verdict.
District Attorney Kevin Steele immediately declared that he would retry Cosby. As per Pennsylvania law, he has 120 days to do so. He said Constand “is entitled to a verdict in this case and the citizens of Montgomery County, where this crime occurred, are entitled to a verdict in this case. And we will push forward.” Steele said that prosecutors felt good about the case, but “there’s always tweaks.” It reflects his campaign rhetoric during 2015 when he attacked longtime incumbent, Bruce Castor, for having “refused to prosecute Bill Cosby” and promised “tough sentences for sexual predators.”
Unfortunately, this mistrial highlights once again how hard it is to prove a sexual assault allegation, particularly against well-known figures and celebrities. The sheer number of Cosby accusers who have come forward, and the consistency of their descriptions of his modus operandi, are so overwhelming that they produce little doubt that Cosby used his fame and power to lure and assault women. I know it’s innocent until proven guilty, but after so many allegations spanning so many decades, it’s infuriating that Cosby has been able to walk away unpunished and relatively unscathed.
There are a variety of reasons for this, and one opinion piece in USA Today touches on some of the main points:
- Cosby’s accusers were acquaintances or dates. Date rape wasn’t even part of the lexicon on the 1960s and 70s, when many of the alleged assaults occurred.
- Cosby was not only protected by his celebrity status, but his fatherly image associated with his famous shows were hard to disperse. Most of his alleged victims were young and unknown — an aspiring actress of 19, a secretary at a talent agency, a 21-year-old working for a film producer — no match in a he-said, she-said battle with Cosby. Even the news media all but shrugged when Tamara Green, a lawyer, went on NBC’s Today in 2005 and accused Cosby of drugging, undressing and groping her in the 1970s. Her story got some coverage but lacked credibility in the eyes of the media and public.
- Cosby was aided by the dangerous trend of judges granting secrecy. In a sworn deposition in 2005, in a civil case brought by Constand, Cosby admitted he had obtained Quaaludes with the idea of giving them to women he wanted to have sex with, and that he gave them to one young woman and “other people.” But no one knew about this until a decade later, when a federal judge lifted the seal that Cosby and his lawyers fought feverishly to hide. If not for court-sanctioned secrecy, his accusers might have known about each other and been more willing to come forward earlier.
Combine all these factors with the volatile nature of sexual assault cases, and it’s easy to see why this was a clusterfuck. The mistrial isn’t as conclusive a failure as a not-guilty verdict, but it’s frustrating to see jurors succumb to ambiguity in this particular case. Jurors reportedly asked the court for multiple clarifications: they asked to rehear portions of the 2005 deposition; they asked for guidance on the phrases “without her knowledge” and “reasonable doubt”. It’s so far unclear which concerns specifically derailed the jury’s unanimous verdict, but hearing all this is so frustrating. Sexual assault is
Outside the courthouse, Cosby’s fans rallied every day to shout his innocence to the media and anyone present. I shudder to think of anyone actively supporting a serial rapist, but here we stand. Cosby’s contributions to pop culture - I Spy, Fat Albert, the Cosby Show - have earned him the sort of impunity reserved for celebrities who act badly. While I think he should be treated as a pariah, his fans apparently consider him a hero of sorts. By now, the number of women publicly accusing Cosby has grown to 60, but of course, sexual assault is an impossible he-said she-said dynamic so that many cases will never go to court.
We follow the Blackstone’s principle in our system, placing an extraordinarily high burden of proof on the prosecution. Formulated in the 1760s by William Blackstone, the presumption is that it’s better to have 10 guilty people go free than have one innocent person suffer. This method, which already favours defendants, becomes next to impossible to prosecute in sexual assault cases thanks to the nature of the crimes. Especially as male defendants are favoured over their mostly female accusers, it’s starting to look more and more like Cosby is one of those ten people.
Honestly, this whole situation just makes me tired. After the high profile trial of Canadian radio host Jian Ghomeshi last year, I lost a lot of hope that the justice system will ever serve its sexual assault victims fairly. The very nature of these crimes translates to the accuser being put through the wringer, with their sexual past, reputation, and any instances of sexual activity in any form used to destroy their character and therefore credibility. It lends credence to why so many victims choose not to report or pursue charges against their abusers.
Look, I understand there will always be the argument that there are false rape and sexual assault claims. But only around 2% of all rape and related sex charged are determined to be false--the exact same percentage as for other felonies according to the FBI (and these are only the reported cases, which are estimated to only number around 40% of actual occurrences). So while they do happen - and are extremely problematic when they do occur - the actual amount of fake cases are not as frequent as touted. Put another way, we are much more likely to disbelieve a woman who says she was raped than when she says she was robbed. If that doesn’t scream fucked up, maybe we need to reevaluate So even if some women are just jumping on this Cosby bandwagon of accusations, of the 60 victims, only 1 is fake. Do those 59 women not deserve some vindication? Does being a celebrity, being a man, being old - Cosby will be turning 80 soon - somehow exonerate past crimes? I’d like to think that every person should be held accountable for their actions, but this weekend’s mistrial takes away a huge chunk of that faith.
Maybe the retrial will renew it. We’ll have to wait and see.