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.