Who’s on trial in the Cosby case?

June 27, 2017

The outcome of the trial of Bill Cosby on rape charges is a stark reminder of how difficult it is for survivors of sexual assault to get justice, writes Rachel Cohen.

DENIED, DEMEANED and dismissed. Survivors of sexual violence often suffer a second round of abuse when they speak out about their experiences. Many of the dozens of women accusing "America's Dad," Bill Cosby, of sexual assault have withstood public judgments and jabs over the course of decades.

So when one accuser, Andrea Constand, was finally set to bring her story into a criminal court, her complaint was widely seen as standing not just for the 60 women who have alleged Cosby assaulted them, but for many more survivors who have suffered in silence.

Last week, their bid to be heard and taken seriously was again put on hold.

After six days of trial proceedings and six days of deliberations, jurors declared their inability to reach a consensus, and judge Steven O'Neill declared a mistrial. The 12 jurors were instructed not to discuss their deliberations publicly and have not revealed how many favored conviction.

Prosecutors vowed to retry the case in the coming months. But the legal limbo leaves critical questions in the balance.

Bill Cosby (left) enters the courthouse
Bill Cosby (left) enters the courthouse

In 2005, Cosby admitted to using sedatives to obtain sexual access to women's bodies in a deposition over the course of four days. The deposition was in response to a lawsuit filed by Constand, who was then a staff member with the basketball program at Cosby's alma mater, Temple University.

After prosecutors decided not to pursue the case, the contents of Cosby's deposition weren't made public until 2015. Reviewing the transcripts, the New York Times described Cosby's tone as "unapologetic, cavalier," and displaying "casual indifference" to acts that may fit legal definitions of rape, but which he considers to have been consensual.

There has been silence over the years about these incidents, as Cosby's accusers received only occasional media attention, despite the decision of some women, like artist Barbara Bowman, to tell their stories in their own name and without seeking often-maligned civil lawsuits for financial compensation.

"Only after a man, Hannibal Buress, called Bill Cosby a rapist in a comedy act last month did the public outcry begin in earnest," Bowman wrote in the Washington Post in 2014.

THIS MONTH'S brief trial brought into focus some familiar failings in the way criminal courts approach cases of sexual assault. For example, prosecutors sought to call 13 accusers to the stand to corroborate the pattern of abuse Cosby himself has detailed. But the judge allowed only one to testify.

And despite Cosby's confessions, Constand's case as presented during the trial centered on questions about her credibility, not his. When Constand's lawyer questioned Cosby about part of the 2005 deposition, he lashed out, calling Constand a "liar." "I was there," Cosby repeatedly insisted.

For her part, Constand reported to police that she faded "in and out" of consciousness, with periodic awareness of Cosby's physical contact, along with feelings of being "frozen" and "paralyzed." "Everything was blurry and dizzy," Constand told police. "I couldn't keep my eyes open."

An expert testifying during the trial described the tendency of survivors' accounts to include inconsistencies due to trauma--yet defense lawyer Brian McMonagle slammed Constand as "untruthful" and her story as "contradictory."

The argument suggests it would be impossible for someone in the situation Constand and others have described to be trusted. If you were too inebriated to consent, the argument goes, how can you prove your memory of events?

As Cosby has made painfully clear when he claimed that Constand appeared to enjoy the encounter, the harm involved in assault that takes place through coerced intoxication is itself up for debate.

In his closing statements, McMonagle referred to Constand's acknowledgment that she continued to interact with Cosby following the alleged assault, as a part of her work duties, including once traveling to see him. McMonagle asked the jury, "Why on earth would you go to Foxwoods casino in Connecticut after he has already unbuttoned your pants and put his hands down your pants?"

McMonagle's appeal exemplifies how survivors' actions are scrutinized before and after their assaults, with actions afterward used to cast doubt on their story unless they fit someone else's presumption of what a victim would do.

"The day has finally come that now the world can see firsthand why so many survivors of sexual assault wait to report," fellow Cosby accuser Beth Ferrier stated in response to the mistrial. "This is like the very day of my waking up drugged...raped and dumped in the alley by Cosby in 1986 again."

FOR COSBY'S side of the courtroom, the mistrial represented a return to the past. Addressing media and a crowd of Cosby supporters who had gathered outside the courthouse throughout the trial, Cosby spokesperson Andrew Wyatt declared, "Mr. Cosby's power is back."

Before Cosby's 2005 deposition was made public, many observers defended him, despite the number of accusations against him, which ranged over four decades and followed similar patterns.

Whoopi Goldberg rightly pointed out that the principle of being treated as innocent until proven guilt applies to Cosby, too. Others, however, publicly cast doubt on the accusers, rendering them guilty of deceit and greed until they could be proven innocent in a court of law.

The Cosby Show co-star Phylicia Rashad suggested the many allegations were an "orchestrated" conspiracy to destroy Cosby's culturally important "legacy." She said, "I don't know why or who's doing it," suggesting the accusers could not have been motivated by their own actual experiences to speak out.

Others pointed to the brutal reality of criminalization and white supremacist violence that has targeted Black men as alleged rapists over centuries of U.S. history.

Feminista Jones drew on her own experience, both as a survivor who has been silenced and as a Black woman aware of the devastating impact false rape charges can have on Black communities, to question how the claims of so many women can be dismissed out of hand.

"I am Black and I am a woman," Jones wrote in Time, reflecting that the lines of debate seemed to call for Black women to make an impossible choice between their racial and gender identities. "I cannot and will not choose which identity supersedes the other when conversations like these go public."

Blaming victims, discounting their experiences and rushing to judgment don't challenge the institutions that devalue Black lives. Disparaging survivors can only add to the damage done by a legal system that offers killer cops impunity while putting rape victims on trial.

Meanwhile, there are cases--like the wrongful conviction of Rodney Reed, who sits on Texas' death row for a rape and murder likely committed by a cop--that urgently need activist support, but receive none of the attention of Cosby's case.

Another of Cosby's accusers, Kathy McKee, has spoken to the way Cosby's beloved place in American pop culture has uniquely shaped his case. She described his apparent "hubris," continuing to interact with her after her alleged attack as if nothing had happened. "He just assumed, I'm Bill Cosby," McKee told the Los Angeles Times. "I'm the No. 1 star in the world. I can do what I want, take what I want. That's the way it's been in this business."

This attitude sounds like it could easily describe the current president of the United States.

As Justin Charity commented at the Ringer:

It's a familiar line that corrupts entertainers as much as it corrupts politicians, and has done so for centuries. Occasionally, we pretend that history is a linear force that propels us, inevitably, toward more comprehensive justice, and that grotesque contradictions -- such as the mistrial in the Cosby case -- are brief, unfortunate glitches in the overall clockwork of progress. As if 2017 isn't, if anything, the nadir of this nation's faith in its institutions.

The Cosby case is a reminder that justice is anything but automatic or inevitable. But it is worth fighting for--to many more of us than we often get to hear from.

Anna Winston contributed to this article.

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