A jury found Bill Cosby guilty of three counts of sexual assault on Thursday in a retrial that could be the closest we’ll get to a controlled experiment on the power of the #MeToo movement.
A jury failed to reach a verdict a year ago, six months before the New York Times published an exposé on Harvey Weinstein and set fire to a brewing movement that’s led us to a significant cultural reckoning around sexual harassment and assault.
Cosby’s conviction this time around suggests that #MeToo could have already started to change how people think about sexual violence.
The guilty verdict in Cosby’s retrial is certainly a victory for the many women who have spoken out against him, and it may be a sign that #MeToo has made it easier for survivors to get justice. But the trial also showed that when it comes to the systemic problems underlying sexual assault in America, the work of #MeToo has just begun.
Victim blaming is alive and well
The women who testified against Cosby were subjected, at both trials, to a still-common tactic in defending men accused of sex crimes: blaming or smearing the victim. In Cosby’s first trial, his defense attorneys implied that Andrea Constand had been in a romantic relationship with Cosby and cast the other accuser who testified as promiscuous and media-hungry.
A few months later, in her closing statement in Cosby’s retrial, defense attorney Kathleen Bliss had harsh words for the women who spoke for the prosecution.
“She wanted to be a star,” Bliss said of Heidi Thomas, who said Cosby drugged her and tried to force her into oral sex in 1984. “She’s living the dream now.”
Bliss criticized Janice Baker-Kinney, who said Cosby sexually assaulted her in the 1980s, for taking drugs from a married man. “Where is her morality? Where are her values? Where is a little personal responsibility?” she asked, according to the Philadelphia Inquirer.
And Bliss argued that Janice Dickinson, the former model who said Cosby raped her in 1982, was promiscuous and a bad role model. “It sounds as if she slept with almost every single man on the planet,” Bliss said. “Is Ms. Dickinson really the moral beacon the women’s movement wants?”
Meanwhile, the defense team aimed to paint Constand as a “pathological liar” who went after Cosby for money. “I call it one of the biggest highway robberies of all times,” attorney Tom Mesereau said. “Bill Cosby got conned, big time.”
The #MeToo movement did not stop Cosby’s attorneys from shaming accusers to defend their clients. In the second trial, the tactic didn’t work. But the fact that the prosecutors felt comfortable using it so consistently at this point in the arc of #MeToo suggests it may be around for a while to come.
When it comes to dealing with sexual assault, the legal system is broken
The victim blaming on display at both Cosby trials was indicative of a bigger problem, one that persists despite the successes of #MeToo: The American legal system just isn’t very good at adjudicating sexual assault cases. In addition to the potential for being shamed and smeared, survivors face a number of other obstacles to getting justice through the court system.
For one thing, survivors of sexual assault can sometimes take years to process their experiences, and statutes of limitations in most states give them a finite window for coming forward. This issue was at play in both Cosby trials. Around 60 women to date have accused Cosby of sexual misconduct. But for most of them, the statute of limitations has expired. That’s why Cosby was on trial in 2017, and again this year, for just one allegation — a report by Constand that he drugged and sexually assaulted her in 2004.
In Cosby’s initial trial, just one other woman was permitted to testify about her experiences with Cosby to bolster Constand’s case. In the retrial, prosecutors were able to call five women. Still, only a small fraction of the many women who came forward publicly to say they had been assaulted or otherwise victimized by Cosby were ever able to testify against him in criminal court.
Another obstacle has to do with how people experience and remember sexual assault. As Dr. Barbara Ziv, a psychiatrist who was a witness for the prosecution, testified at Cosby’s retrial, it’s common for people who have been through assault to be hazy on the details of their experience. This leaves them open to being challenged by defense attorneys, as happened in Cosby’s retrial, where lawyers slammed Constand for inconsistencies in her testimony over time.
There are potential solutions to these problems. In recent years, some states have weighed the possibility of changing statutes of limitations to help more survivors come forward — the Cosby case was the inspiration behind some of these efforts. There are also ways for police to interview people who report sexual assault that take into account the effects of trauma, as Max Ehrenfreund and Elahe Izadi noted in the Washington Post in 2014.
But defense attorneys are unlikely to start going easy on people who accuse their clients anytime soon. In fact, the entire adversarial nature of most criminal cases may not offer all survivors the best chance at justice and restitution. In recent years, some college campuses have explored restorative justice, a process that focuses on repairing the harm done rather than assigning a particular charge. This approach has also shown promise in the criminal justice systems of other countries.
At his second trial, Cosby finally faced legal consequences after he was accused of sexual misconduct by dozens of women, publicly, over a period of many years. The fact that it took this much to bring him to justice should make us reexamine how we treat the words of men and women, survivors and the accused.
But it’s also a sign that when it comes to dealing with sexual assault, the legal system is broken. Part of the work of #MeToo going forward will be figuring out how to fix it or come up with alternatives.
Is America tired of #MeToo?
One of the most surprising things about Cosby’s retrial was how relatively quiet it was. In 2017, the case seemed to dominate headlines, with national and international media covering the story aggressively. This time around, coverage has been more muted.
“Last year, reporters were packed onto courthouse benches, sitting arm to arm with hardly a free seat to be found,” wrote Diana Moskovitz of Deadspin, who covered both trials. “This year, there’s plenty of space.”
As Moskovitz noted, “there are many reasons news directors can give for why they haven’t sent reporters: the Stormy Daniels story, the James Comey book, the other perpetual scandals seething from the Trump White House, a sense that the court of public opinion already has convicted Cosby, or the (wrong) belief that this trial is the same as the last one.”
But as she points out, before the recent spate of high-profile reports of harassment and assault, violence against women was “a topic at the margins of most American media.” Around six months after the reports against Weinstein ushered in a new reckoning, we might be returning to that place.
It’s not necessarily a problem if media outlets or the public choose not to focus on a particular trial. It is a problem if, a few months after the flurry of mainstream attention to #MeToo, America returns to business as usual, sweeping sexual assault under the rug.
Those following #MeToo closely have long worried that after the first rush of stories about famous men subsided, Americans’ attention would wander elsewhere before the systemic issues that perpetuate harassment and assault were solved. The Cosby retrial isn’t proof that that’s happening, but it is a disturbing data point.
Beyond the verdict, the Cosby trial revealed core problems with the ways the justice system, and American culture at large, deals with allegations of sexual assault. If we look away now, those problems will never be solved.