What Bill Cosby's Accusers Have to Endure on the Stand

By Jia Tolentino, The New Yorker

10 June 17

fter each of the first few days of Bill Cosby’s depressing criminal trial for the alleged rape of Andrea Constand, I have dragged myself back to my extended-stay hotel, in East Norriton, Pennsylvania, and the same thought has intruded as soon as I walk into my room: If I ever were to find myself testifying against a person who had sexually assaulted me, I would be a terrible witness. I doubt that I could stay as calm under cross-examination as Constand has been, wearing pale blue and white, her hair in a halo of tight brown curls that extended her six-foot frame. If a team of lawyers were to deploy the same strategies against me that they have against Constand and Kelly Johnson—who both say that Cosby drugged them and then used them like warm corpses while they couldn’t speak or move—I suspect that the jury would have some issues. I have been aware of the difficulties in sexual-assault adjudication for some time, but, until this week, I did not really understand that I, myself, someone I trust implicitly, would in all likelihood appear rather untrustworthy on the stand.

Cosby’s defense team has attempted to discredit Constand and Johnson with three principal assertions: that the women told confusing or inconsistent stories about their alleged assaults, that they hoped to get something out of their complicated relationships with Cosby, and that all the sexual contact in question was consensual. The first two assertions are true; I can hardly imagine how things could be otherwise. Constand and Johnson have been unable to recall or reconcile specific testimony that each provided ten or twenty years ago. I can barely remember driving down to Pennsylvania last Sunday. In 2005, Constand told the police that she and Cosby had never been alone before the night he assaulted her, and that the assault was preceded by a public dinner with Cosby and others—neither of those statements was accurate. She told different police departments that she had met Cosby in different years. Johnson, in a worker’s-comp deposition, in 1996, switched the order of two events and got a date wrong by several years. (This is based on lawyer’s notes: there are no transcripts of that deposition, because, as a witness testified on Tuesday, the lawyers for her employer, the William Morris Agency, found the information too sensitive to be put on record.)

These are inconsistencies worth noting, and worth thinking about. They have certainly made me consider the times I have experienced events that were roughly of this nature—minor incidents, which did not even really traumatize me, such as when I was roofied, at sixteen, by a twentysomething graduate student, or when the father of a family I was living with abroad kissed me on the mouth. On both of those occasions, out of simple embarrassment and a sense that I had brought this upon myself, I had trouble telling my story straight. I withheld details for no obvious reason, and told slightly different versions to different people for years.

The defense’s next suggestion is that Constand and Johnson thought of their respective relationships with Cosby as potential sources of personal gain—and that they consciously endured inappropriate behavior from the comedian with a mercenary goal in mind. Both Johnson and Constand accepted free comedy tickets for their families from Cosby; they accepted small amounts of money from him, as voluntary reimbursements or gifts. The defense has tried to characterize both women as professionally eager and malleable, looking for a career change that they knew Cosby could facilitate. Johnson, they say, was hoping to leave William Morris and become an actress, and Constand wanted to leave her job as the director of operations for the Temple University women’s-basketball program and become a sports broadcaster. The countervailing idea—that Cosby identified women whose professional vulnerabilities could be used as an opening for sexual exploitation—has not yet been suggested inside the courtroom.

“Wasn’t your friendship with Mr. Cosby in part for him to assist you in the goal of becoming a broadcaster?” the defense attorney Angela Agrusa asked Constand on Tuesday. Constand hesitated. By her own account, it did seem that she had been generally interested in a career change, though she was looking toward massage therapy, the field she is in now. She had been interested enough in broadcasting to get headshots and to take a meeting arranged by Cosby, but not much more. If anything, it appears that she maintained a semblance of friendship with him post-assault because she didn’t want to start a conflict between Temple University and one of its trustees. “I think, partly, what you’re saying is true,” she finally said.

“You befriended him because he was going to be able to give you resources,” Agrusa said. At that, I thought about how every unpleasant relationship involves a skewed exchange of resources—and how normal it seems to me, wanting to extract something positive out of someone who has hurt you. I also thought about how nice I have been to men with professional power who have approached me in small, inappropriate ways. It’s much easier, in the short term, to pretend everything is fine. It’s spiritually humiliating, but it makes your life feel more normal. Women will need quite a bit more collective power for this not to be true.

The real underlying argument that the defense is making, though, is that the sexual encounters that the women have been sufficiently mendacious or manipulated enough to call assault were actually consensual. In his opening statement, the defense attorney Brian McMonagle called Constand and Cosby’s relationship “romantic.” (Constand is gay, a fact that has not yet come up in court.) When Cosby touched Constand’s thigh one night, and when he put his hand on the zipper of her pants another night, it was consensual, the defense implied: She was there, wasn’t she? “Prior to the night in question, you had two evenings of sexual contact, didn’t you?” Agrusa asked Constand on Tuesday. “Not what I would call sexual contact, ma’am,” Constand replied. “But there was sexual contact between you and Mr. Cosby on two evenings,” Agrusa said. Constand kept clarifying that, in her view, it was “suggestive contact.” But, sure, it is sexual contact when someone unexpectedly starts fiddling with your zipper. There is sexual contact between every rape victim and rapist, too.

It is the defense’s job, of course, to make such arguments: these are the most effective ones available. But the better they do their job, the more I find myself thinking about how rape has a way of defying the process of adjudication. It is humiliatingly easy to retell a sexual aggression as a romantic flirtation, and the defense has repeatedly framed Cosby’s actions with that very word—romantic. On Wednesday, Agrusa questioned Constand about a lit fireplace and dim lights. “I don’t remember how dim the lights were, but I did have to eat my dinner,” Constand said. Though her cross-examination was scattered and slow, and, all things considered, probably easier than it might have been, Constand has nonetheless been a remarkable example of what it takes to stand up to the essential difficulty of this dynamic, in which an alleged victim, after being forced to participate in a sexual encounter, is implicated by the fact that the sexual encounter occurred. This is the nature of a rape case. The victim was there, right? Wasn’t she? I keep imagining myself as a witness, stating to a jury that I had been drunk, yes, or that I had maintained some questionable relationships, or behaved strangely—these things that are the prerogatives and sometimes the hallmarks of the ordinary life of an imperfect person but can damn a woman so quickly once she says she’s been hurt.