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Why Bill Cosby's defense strategy is a problem for rape victims everywhere

Bill Cosby Preliminary Hearing Photo by Matt Rourke-Pool/Getty Images

Bill Cosby is standing trial in Pennsylvania for sexual assault, and a preliminary hearing Tuesday revealed just how ugly that trial could get.

Andrea Constand is so far the only one of Cosby's nearly 60 alleged victims who is seeing her day in court, for a 2004 incident where she says Cosby drugged and raped her. Some women simply didn't want to press charges; others want to but can't because the statute of limitations has run out.

Cosby's defense team strategy is simple, Kenneth Lipp reports for the Daily Beast: "discredit Constand by questioning her behavior after the alleged rape."

Brian McMonagle, Cosby's attorney, cross-examined Katharine Hart, a former detective, about her interview with Constand about the alleged assault in 2005. McMonagle pointed out that in the transcript of that interview, Constand told Hart that she took her family to Cosby's show and brought him a sweater as a present. Hart confirmed this.

McMonagle also argued that Constand's story has inconsistencies, and that Constand herself, not Hart, should have to appear before the court and "answer questions like: 'Why did you wait so long to report?'"

Of course, it's McMonagle's job to acquit his client in any way he can. If Constand had actually consented to sex with Cosby, that would mean she hadn't been raped. So McMonagle is pretty clearly trying to use circumstantial evidence to suggest that Constand wasn't upset at Cosby immediately after the rape, which would suggest that she enjoyed herself at the time.

She gave him a gift, the argument goes; who would do that for a rapist? And she didn't report right away, so maybe that means she consented at the time and just regretted it later.

This strategy, however, relies on some damaging and false assumptions about rape victims. The biggest problem with using it is that many people share these assumptions, which means that a jury could be swayed by McMonagle's arguments pretty easily.

"Critiquing the victim ignores the reality of rape because there is no one way to respond to trauma," Julie Gurner, a doctor of clinical psychology who has worked with victims of sexual assault in psychiatric hospital settings, told Vox in an email. "While we often accept this as fact when the trauma occurs on the battlefield (for example, not everyone exposed to extreme violence will respond the same way, or express symptoms of PTSD), we often ignore the same reality in sexual trauma."

The culture around sexual assault has shifted enough that many (but still not all) people understand that it's irrelevant to ask a rape victim things like, "What were you wearing?" or "How many sexual partners have you had?" A woman's perceived or actual promiscuity doesn't have anything to do with whether a rapist decided to violate her consent, and many states explicitly forbid using an alleged victim's sexual history against her in court.

But issues like how the brain processes trauma are unfortunately less obvious and clear-cut. Sexual trauma can manifest in counterintuitive ways that make it fiendishly difficult to successfully prosecute rape in court. Memories can be affected by trauma, Gurner pointed out, and so it's not at all uncommon for rape survivors' stories to include some inconsistencies.

It's also not uncommon for victims to keep up friendly (or friendly-seeming) relations with an alleged rapist after the fact. "It is not that they feel friendly toward someone who raped them; it's that they are in a state of incredible trauma and are not sure how to behave with the circumstances they're in," Gurner said. "You don't always act yourself after a trauma of any sort, and sometimes individuals do things that others (not in their situation) might deem illogical. We see this with trauma across the board."

In most criminal proceedings, police (or attorneys) try to determine (or argue) guilt by poking holes in someone's story and looking for inconsistencies. But the problem with trauma, especially rape and other sexual trauma, is that it can make people think and act in very inconsistent-seeming ways — like giving your alleged rapist a gift, having consensual sex with him again at a later date, even getting or staying married to him.

That's partly because unlike other crimes, most rapes are committed by someone the victim already knows. That can make dealing with rape even more emotionally complicated, Gurner said. "For example, being raped by a family member, someone in their college network, a person in authority, or someone with substantial clout might make a victim feel 'guilty' for saying anything against them, or that there would be personal or professional consequences if they did."

The idea of actually feeling guilty about doing something to hurt your rapist probably seems utterly bizarre and impossible to imagine for most people. But it's a daily reality for survivors of abuse and assault, and it can be a really tough one to explain convincingly to a jury.