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Tolentino writes: "Rape has a foul way of defying adjudication: it is a crime that generally occurs without witnesses, and it traumatizes the victim in a way that can affect memory and lead to behavior that a jury might find questionable."

Bill Cosby arrives Friday at the Montgomery County Courthouse during his sexual assault trial. (photo: Matt Slocum/AP)
Bill Cosby arrives Friday at the Montgomery County Courthouse during his sexual assault trial. (photo: Matt Slocum/AP)

The Dispiriting but Unsurprising Failure to Convict Bill Cosby

By Jia Tolentino, The New Yorker

18 June 17


ith Judge Steven T. O’Neill declaring a mistrial on Saturday morning, Bill Cosby’s criminal sexual-assault trial has officially ended in limbo. The twelve-person jury had been deliberating since late Monday, working morning to night; they asked twelve questions, revisited large portions of the evidence, and reported themselves deadlocked on Thursday, only to be ordered back into deliberations by the judge. Finally, after fifty-two hours of debate—their discussions ended up stretching longer than the presentation of evidence in the case—they declared again that they would be unable to reach a unanimous verdict. Judge O’Neill accepted the defense’s motion for a mistrial, telling the court that this outcome represented “neither a vindication or a victory” for either side.

Effectively, however, the mistrial immediately came to represent a victory—even if a temporary one—for Cosby. “Mr. Cosby’s power is back,” announced his spokesperson Andrew Wyatt, triumphantly, outside the courtroom. “The legacy didn’t go anywhere. It has been restored.” This is a reach, but it does seem, both to Cosby’s supporters and to detractors, as if the seventy-nine-year-old comedian has somehow won.

Cosby had been charged with three counts of aggravated indecent assault against Andrea Constand: penetration while she was unconscious, penetration without her consent, and penetration after intoxicating her without her knowledge. Each count could have put him in prison for ten years, and each accusation was corroborated, to varying degrees, by both Cosby and Constand’s testimonies. The two parties agree that on a night early in 2004, Constand came to Cosby’s house, where he gave her three pills that he identified only as “friends.” They agree that Constand, who is thirty-five years younger than Cosby, became very sleepy soon afterward. They agree that Cosby took her to the couch, digitally penetrated her, and then left her there, unconscious, her clothes in disarray.

To an outside observer, it feels as though Cosby has been on trial for all of the many horrific things that he has been accused of—for the accusations of drugging and assault levelled against him by nearly sixty women, stories that span four decades of his life. But, as far as the trial in Montgomery County was concerned, he was on trial for the incident involving Constand alone. The overwhelming amount of testimony against Cosby that people have read in the press and on social media could not convict him inside the courtroom. The prosecution put forth thirteen accusers as potential witnesses but only one was permitted to testify: Kelly Johnson, whose story about a 1996 incident is strikingly similar to Constand’s own.

And so the mistrial is not exactly surprising. Even acquittal, I suspect, would not have surprised many of those present at the trial. As I wrote earlier in the proceedings, rape has a foul way of defying adjudication: it is a crime that generally occurs without witnesses, and it traumatizes the victim in a way that can affect memory and lead to behavior that a jury might find questionable. (The more you personally know about rape and its consequences, the more likely it is that you will be kept from serving on a jury in a rape trial—another systematic cruelty of this crime.)

In defending their client, Cosby’s lawyers have invoked the changing public discussion around sexual assault to imply that the deck is stacked against him—to imply that female accusers have developed an unfair, outsized power against men. “It’s sickening, what they did here,” spat the defense attorney Brian McMonagle in his closing argument, gesturing toward the prosecution and the story that they stood for. And it’s true that Cosby’s case was reopened partly because the climate has been changing; the shift in the way we speak about sexual assault is part of what made it possible for so many women to come forward with their stories, and to find a meaningful measure of support. The discourse has changed enough, I think, that a man repeatedly accused of assault seems fundamentally untrustworthy. But this has not tipped the scales in the opposite direction. To many people—to an average group of people containing seven men and five women, say—the female accuser still seems implicitly untrustworthy, too.

And so we find ourselves in a situation where making Cosby look credible would be an uphill battle but making his accuser seem vaguely dubious could be done in a snap. That was the defense’s tactic—to position Constand, who was a bright and earnest presence in the courtroom, as the kind of woman who might just possibly be lying as she recounted an event that made her shake and cry on the witness stand, a humiliating account that she has told over and over again, to her mother, her brother-in-law, two police departments, her lawyers, her alleged rapist, the courtroom, the world.

It was easy for them to argue that her sexual contact with Cosby was romantic and consensual rather than ghastly and forced; they just had to mention a fire and some presents to remind the jury that she had maintained contact with Cosby after it happened, to revisit a few inconsistencies in her previous accounts. In the courtroom, the air seemed to tighten when someone with a familiar kind of cultural authority was speaking: the stern judge, the no-nonsense police officer, the sweet and impassioned mother. Though Constand was remarkable as a witness, calm and clear, the room felt different when she was giving her account. She was speaking as a victim, and the climate in our culture has not changed enough to make the average American view an alleged rape victim’s position as authoritative. Or at least that is what this mistrial suggests.

I have worried about my own reactions while covering the Cosby trial. At moments, I have felt fatigued in an ugly way that is unique to rape cases; this sense of being exhausted by, averse to, and, nevertheless, invested in the prevalence of sexual-assault stories in our culture is a place where feminists and misogynists meet. I have also felt quite sure, on many occasions, that I simply wouldn’t expect (and perhaps would not be courageous enough to seek) justice in a criminal court if someone famous were to rape me. And, most of all, I have found it impossible to imagine how Cosby could either be presumed innocent >or found guilty by the jury. How could anyone really ignore the fact that nearly sixty women have echoed Constand’s harrowing testimony against Cosby? And how could anyone fully shed the lingering effects of centuries of history, up to the very recent past, in which women were legally subjugated and rape was not treated as a crime? After Judge O’Neill declared the mistrial, the Montgomery County District Attorney, Kevin R. Steele, announced that he would retry the case. A year remains for Constand’s case to fall within the statute of limitations. A part of me will always be hopeful. A part of me will always worry about what awaits women who come forward with these stories in a room where the man they’re accusing possesses, not only legally but culturally, the benefit of the doubt. your social media marketing partner


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+2 # ReconFire 2017-06-18 17:02
I'm not a lawyer, but I don't understand. If the writer is correct, and the accusations were corroborated by both testimonies, how could he not be convicted? Tainted jury?
+7 # EternalTruth 2017-06-19 08:10
The actions were corroborated by both parties. At issue are intent and consent. Apparently the defense presented the case that she wanted to be drugged commotose and finger-banged by an old man, and at least one person on the jury found it plausible.
+2 # ReconFire 2017-06-19 21:34
Thanks for the explanation. I haven't followed it that close.
And WOW.
-9 # sherryg 2017-06-18 22:16
Everyone writing with an opinion that Cosby's acquittal is a travesty of justice didn't sit through the trial,hear and consider the evidence. Nonetheless, everyone has an opinion since the trial and guilty verdict were conducted and decided in the press. Mr. Cosby's life has been destroyed. Countless rapes are his legacy, not his lifetime of comedy work and nor his and his wife's philanthropy. Do we really want a further perversion of the judicial system to satisfy our desire for a guilty verdict and punishment. I for one do not.
+1 # lfeuille 2017-06-19 15:50
He wasn't acquitted. It was a mistrial. He will be tried again.
+5 # krallison 2017-06-18 22:28
I think in addition there is the undertone of Cosby's celebrity. It is hard to get by that in addition to whatever victim blaming went on there.
+3 # markovchhaney 2017-06-18 23:38
An analysis of the trial might have been helpful. This piece ALMOST could have been written by someone who didn't attend the trial.
+10 # Anonymot 2017-06-19 03:03
Amazing! A balanced account of a subject that unbalances most. Thank you.

I was part of the Hollywood colony at the time. I lived in Paris, but wrote in LA. Bill Cosbys were a dime a dozen. Most of the film industry had just found cocaine and the myriad of little pills that accompanied it. I watched, somewhat horrified at the suspension of logic, of intelligence that went along to justify it all.

One of my writing mentors and a friend was famous for his ability to take a studio meeting and talk gibberish until a story line came out of his coke head. He had 3 of the top 5 TV series going. You watched them. He died, rich, young, ODed.

Women like Constand were a dime a dozen and so were men like Cosby. Everybody screwed everybody. There was no romance involved. It was about getting "in", making a deal, having a role.

But the tragedies weren't from the insiders, the thousands of Cosbys and Constands. The tragedy is that Hollywood sold YOU and all of America the CCs - Celebrities and Coke. America bought it and remains completely addicted to it. Just open your favorite media, the NYT included. The Paris Hilton is gone, but the Kardashians and Jenners are in the Arts section!

America was brought down by a lot of dope and bad lays. The ultimate reaction to that is the 63 million who voted for Trump. The Clintons were manifestations of the Hollywood Cosby syndrome.
+1 # NAVYVET 2017-06-19 21:12
I was born in 1936, grew up with radio comedians, Burl Ives and Lux Radio Theater. We finally got a TV in 1954, after everyone else. The promise of Ed Murrow, "Omnibus", "Studio 1", "Twilight Zone" and Ernie Kovacs, plus local news from homely but competent journalists, passed away while I was in college or in the years after when I never watched TV till I bought a used one for the 1960 political conventions. I did enjoy old movies, some live audience variety shows like "Carol Burnett", "Smothers Brothers" & "Laugh-In", but always loathed canned applause and commercials of sitcoms, even Lucy. They usually made me want to cry because of their phoniness and blatant materialism. The only programs I've truly loved since the 50s were "M.A.S.H." (which had very limited canned laughter), PBS's "I, Claudius", "The Prisoner", "Max Headroom" & "Deep Space 9" (all of them cynical, intelligent and honest). As for TV news, I gave that up 30 years ago, never liked talking heads, and now get all my news from online RSN & other noncommercial channels (I CONTRIBUTE MONTHLY!) plus NATION and other magazines I've read since college. You couldn't pay me to watch a cheap useless "reality" show or a quiz show--except occasionally "Jeopardy". TV long ago became a vast wasteland, and Faux News has turned the wasteland into hell. Haven't watched anything but DVDs/VHSs on my own idiot box in years, and at 81 I'm healthier for it & have saved money not having cable. Get a life--dump TV!
+11 # Rodion Raskolnikov 2017-06-19 07:04
I don't doubt that Cosby is guilty and I's sorry he was not convicted. The defense team should have lost for making this statement --

" the changing public discussion around sexual assault to imply that the deck is stacked against him—to imply that female accusers have developed an unfair, outsized power against men"

This is a good thing. The 60 women Cosby is accused of having assaulted could not have said anything in the past because the culture was against them. Now they barely can make their claims to having been raped.

This trial is really a trial of all celebrity culture. Powerful male stars get to abuse women nearly as will. That's what Trump meant by his "pussy grabbing" comment. This is how Bill Clinton lived. If you have social power, you can do this to those who have no social power and that means women. But things are changing and this trial is helping that change.

Even with the mistrial, this is an important case.
0 # Anonymot 2017-06-19 11:57
Rodion, I'd like to believe your last line, but if you look at America it's even less important than the OJ Simpson case. The SEVERAL HUNDREDS OF BILLIONS OF DOLLARS that flow in via drugs annually don't go to the street sellers primarily, but up the line to the top. We're at war for 14 years in Afghanistan to protect the Miami/Vegas mobs' interest in keeping the lines open.

Everybody is powerless, not just women, although that's what women would like you to believe. Blacks want you to believe it's them. So do Latinos. So does the disappeared, evicted, broken middle class and the LGBT community and artists and and and. We have become a country of victims and think it's the fault of the 1%. It is. and yet that's such an easy out.

Our leadership has been taken over by the incompetent and corrupt. The reality is that's our problem, not the unsolvavble one of prejudices.

I've lived a lot in France. They took on two corrupt groups, headed by Chirac & Mitterand in 1982. It took them 35 years to kick them both out.

We've not even started, because we don't have a single leader with a vision of our domestic and world solutions - except perhaps Tulsi Gabbard and the Democrats, Bernie & Warren included will kill her.

As I said above, all of America bought into it - except those who elected Trump who is intellectual arsenic.

We don't need to stop just Cosby. We need to stop Hollywood and what its owners feed us every day in all of their dumbing-down media trash.
+5 # Blackjack 2017-06-19 09:12
We live in a culture where men possess most of the power, money, and thus, the influence. This influence is further enhanced when that male is a well-known T.V. personality.

For the most part, men make the laws that decide women's reproductive choices, their pay for work performed, their options for child care, and their rights regarding sexual activity. Only recently have some women begun to push back from the injustices to which this culture has subjected them. These women, often at great personal risk, while trying to regain a measure of justice for themselves, are also part of a process that has the possibility to change the entire culture for the better. The outcome of this trail is not what most of us would have wished for, but at least the judge, a male, decided that there would be a retrial. One can hope, that should Constand decide to proceed with yet another humiliating grilling on the witness stand, the outcome next time will be more just for her personally and will provide a more favorable tilt toward justice overall.
0 # elkingo 2017-06-19 11:02
That is brilliantly and deeply insightful writing. My intuition tells me the prick is guilty as sin and that they should throw the book at his 79 year old ass. (Although I do think his age should be taken into account in sentencing. I'm 78 myself, but don't commit forceable rape. ) But is my intuition enough to generate a verdict? No. But neither are the structure and tonalities of the judicial system - so long corrupted by capitalism and patriarchy. Read it and weep.
0 # elkingo 2017-06-19 11:11
And Rodion Rasky,
Having "no social power" as you so eloquently put it - means children too. Both cons and cops "go to town" on child molesters/murde rs, and so would I. This is because there is nothing more despicable because abuse of women and children is counter-evoluti onary. These threaten at least by implication, the future prevalence of the human race, not that it isn't threatened enough anyway by the Global Race of Ruling Morons (GRRM), via nukes, climate collapse and other forms of Geocide etc.
+1 # elkingo 2017-06-19 11:17
Yeah, and the Hollywood Bullshit and Inner Predation Culture and the commensurate foisting of those "values" on the public are descendants of capitalism. Think about it. Establish the links.

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