On April 26th, 2018, a jury convicted actor and comedian Bill Cosby on three counts of aggravated indecent assault. He faces 10 years and a potential $25,000 fine for each count.
The media and #Metoo activists have hailed the conviction as the first “win” for the #MeToo movement. That is a fair assessment. While the allegations against Cosby predate the Weinstein scandal, many people have associated his situation with the scandal. They argue that this is another example of powerful men exploiting women.
Cosby’s situation is different not only in his alleged method of assault — drugging the women — but also in that most of the women accusing him claim the acts occurred decades ago. This leaves little to no physical evidence for most of the case, and little circumstantial evidence short of the women telling someone the claim over the years.
That said, I do not have a problem with the conviction per se. If the evidence were convincing beyond a reasonable doubt, then a jury should convict.
The problems I have with the case lie in the way it was prosecuted and handled. Let me start with the most bizarre element of the case:
Assistant District Attorney Kristen Feden portrayed Cosby as a sexual predator who used his TV image as a man of wholesome values to target women he believed he could silence. Prosecutors called five other women who alleged that Cosby also sexually assaulted them in a manner similar to the way he assaulted Constand.
These five other women are not witnesses from other cases against Cosby that resulted in conviction. They are merely women who claim Cosby assaulted them. While I am certain their testimony was compelling, it does not strike me as ethical to include them in this case. These women effectively tried Cosby without him being able to truly mount a defense.
To bring in people claiming assault unrelated to the present case seems highly biased. Indeed, that bias appears to have been the reason for their inclusion:
Last month, O’Neill ruled that the additional accusers could testify so the prosecution could try to establish that the assault on Constand fit a pattern or that Cosby knew what would happen when he drugged Constand.
The problem is that you have not established a pattern of assault. You instead established a pattern of accusations. Had Cosby been convicted in any of these cases, that would be a different matter. It would still be possible for him to be innocent of the accusations, but at least one would have some legal backing to support his guilt.
Instead, this amounts to someone saying, “He did it to me, too!” while never truly having to prove that statement in court. This makes Cosby’s conviction look less like one concerning the particular woman who brought the case and more about the now six women who testified that he assaulted them.
Again, this seems highly unethical.
This is not the first time I have seen something like this. The prosecutor used a similar tactic in Michael Jackson’s 2005 sex abuse case, bringing in witnesses who claimed they saw Jackson assault other children but never reported it. In Jackson’s case, this worked against the state’s case.
Cosby, however, had to contend with the shift in the social narrative thanks to the #MeToo movement. People are looking for a conviction of someone from the Hollywood power sphere, and it’s possible that this is one of the reasons for his conviction.
Another strange element was the jury’s apparent confusion over the definition of consent:
Jurors also asked a series of questions, including one that goes to the heart of the case against the former TV icon: “What is the legal definition of consent?”
That key question came around 1 p.m., less than two hours after the 12-person jury began deliberating the case. Cosby is on trial on three counts of aggravated indecent assault.
O’Neill told the jurors he could not answer the question.
“The jury will decide what consent means to them,” he said.
This is precisely the problem with playing with the definition of consent. It should be fairly obvious that consent is simply someone knowingly and willingly engaging in an act without coercion or threats. That anyone, particularly adults, should be confused about this is astounding. That this confusion could affect the verdict in a trial is far more frightening.
What is truly disturbing is that the judge actually could have answered the jury’s question as Pennsylvania does have legislation regarding consent. It makes no sense not to inform the jury of this given that it is part of the state criminal code.
I suspect the jury would have convicted Cosby regardless of these two questions, and that is because the accusation against him sounds plausible. By his own admission he had procured drugs to give to women. It seems more likely that he did drug Andrea Constand, and given her testimony, it is possible to conclude that beyond a reasonable doubt, even if part of the sexual encounter began as consensual.
That said, it is troubling that in a high-profile case we have such questionable tactics, particularly given that the five women’s testimony could result in an appeal. Again, it is unethical to include such testimony, and I do not think Cosby’s attorneys will have much trouble making that case. Whether they are successful is a different matter.
Given the nature of the case and the potential social backlash, it is possible the appellate court would uphold the verdict despite the ethics problems.