Bill Cosby’s 2018 conviction for sexual assault has been called “the most stunning development of the nascent #MeToo movement.” Now his conviction has been overturned because of what’s being called “an infuriating technicality.” Some claim his release is “an example of a failed system.” Others who want Cosby behind bars (and once supported Me Too) warn that such reactions reveal “the danger of [the Me Too movement’s] overreach.”
Let’s start with the facts.
In 2005, district attorney Bruce Castor decided against charging Cosby for sexual assault of Andrea Constand. Castor had found “a number of inconsistencies in Constand’s various statements to investigators.” Corroboration was nonexistent. Castor suggested a civil lawsuit. The standard of proof would be lower. Cosby would have to testify if granted immunity from criminal prosecution. Castor intended the immunity grant to be legally binding but didn’t formalize it. Because of that, his successor decided Cosby could be prosecuted. Pennsylvania’s state Supreme Court has now ruled that Cosby was legally immune. Therefore his conviction is automatically overturned.
Perhaps the most balanced assessment of this comes from rape survivor and Cosby critic Bridget Phetasy: “I'm simultaneously enraged that a rapist has walked free and relieved to see that due process isn't completely dead.” She insists the legal system can’t work if its technicalities are violated whenever we want to jail a creep. She is alarmed that some are attacking the Constitutional rights on which Cosby’s release was based. And she is blunt in assigning blame for the debacle. The problem isn’t due process. Its “the excesses of the #MeToo movement” which “made a situation like this one with Cosby inevitable.”
Phetasy is just as clear about what these excesses are: Failing to accept that giving accusers benefit of the doubt means that there’s a doubt. Insisting we believe all sexual assault claims. Virtual “vigilante justice.” Using “public opinion to subvert due process.” We can’t be sure if such factors impacted Cosby’s case. But four months before Me Too exploded, his case split a jury down the middle. A mistrial was declared. He was convicted shortly after Me Too gained prominence.
For jurors to have had reasonable doubt was understandable. According to court records, Cosby and Constand agreed they had previous quasi-sexual encounters. Cosby claimed they were consensual. Constand said he tried to initiate sex and she refused. But she made two crucial admissions. Cosby accepted her refusals. His attempts didn’t stop her from again meeting him in private. Just before the alleged assault, Costand voluntarily drank alcohol and took pills Cosby offered her. Could Cosby have thought she was voluntarily engaging in sexual acts while intoxicated rather than incapacitated? In his civil testimony, he admitted drugging women with incapacitating quaaludes so they wouldn’t refuse sex. Yet he insisted Constand wasn’t among them. Why go out of his way to unnecessarily admit a crime and then commit perjury?
In Cosby’s criminal trials, the “preponderance of evidence” was against him. That means his guilt was “more likely than not.” But jurors in his first trial weren’t convinced there was “proof beyond a reasonable doubt.” One even told CNN that a second trial “would be a waste of money” for prosecutors unless there was new evidence. Would twelve jurors have agreed to convict shortly afterwards if attitudes hadn’t been influenced by Me Too?
So yes, a man who admitted drugging women for sex has spent a mere 2 of his 81 years in jail. But this isn’t because the system is broken. It’s because: 1) Criminal law uses standards of evidence that minimize the danger of the innocent being convicted. 2) His victims failed to make prompt reports of his offenses. These factors prevented prosecution. These factors led to Cosby receiving immunity so Constand could win a lawsuit.
Those who claim the system is broken unwittingly reveal their prejudices. Staff members of Syracuse’s Vera House have written: “This [the Cosby case] is a prime example of a failed system. When felons with no wealth are convicted, their representation often wipes their hands clean of the case and takes no further action. When felons with wealth and power are convicted, their cash flow is continuous — seeking loopholes, pressuring the prosecution, and pursuing appeal after appeal.1” In fact legal technicalities protect most lower class rapists, muggers, thieves and drug dealers from arrest. Forget prosecution, much less conviction. Those bothered by Cosby’s release aren’t bothered by people avoiding jail because of technicalities. They’re bothered by the “privileged” doing so.
People serious about putting rapists in jail will take a different approach. Women need to be taught what to do if sexually assaulted. Modern science and technology provide opportunities for collecting evidence while an assault takes place. Women need to know what these are. They must learn to keep their heads during assaults, like soldiers under fire. It must be made clear that prompt reporting is key. Not all factually accurate rape charges will be sustained by evidence. But the more women take the correct steps, the more rapists will be convicted. Other “solutions” will either jail the innocent or result in convictions that can be overturned.