The jury returned its verdict in the retrial of Bill Cosby. Guilty, guilty, guilty. And much as honor an acquittal for sustaining our presumption of innocence, a guilty verdict brings that presumption to an end. Cosby is guilty. Guilty defendants can become unguilty if a subsequent court reversed the conviction, but until that happens, guilty he is. That’s just the way the system works.
But the retrial, unlike the first trial, was a very different beast. An expert to tell the jury the right way to think. Five witnesses who witnessed nothing of the conduct between the defendant and the one accuser, but got to tell their stories anyway. And between the first and second trials, there was the #MeToo movement, which changed the paradigm from facts to feels when it came to women’s sexual complaints.
The conviction of Bill Cosby for conduct committed in 2004 may be the first #MeToo conviction. At least, that’s how some are trying to spin it.
Today’s guilty verdict in the sexual assault case against Bill Cosby closes a chapter left unresolved by last summer’s deadlocked jury. A retrial typically looks much like the first go-round. But in this case, the #MeToo era began between the two trials. So the second trial has become a litmus test of the movement’s impact. Because the jury convicted this time around, it is tempting to think that #MeToo is already improving the criminal justice system’s notoriously poor handling of sexual violence.
This was written by a former DANY prosecutor, now lawprof at Northwestern. Deborah Tuerkheimer. The headline given the op-ed sets the tone: The Cosby jury finally believed the women. Not believed the facts. Not believed the evidence. Not even believed Constand, whether described as “accuser,” “victim” or even “survivor.” Not woman. Women.
I would urge caution about generalizing in this way. In many respects, this was no ordinary sexual assault prosecution. The case featured a celebrity and dozens of accusers. The two trials involved different witnesses, different lawyers and different jurors. Even with these caveats, I do see the conviction as a mark of progress — progress that is best understood in relation to the work of #MeToo.
She doesn’t “urge caution” about convicting an individual defendant in the name of the cause, to vindicate the complaints of women that they weren’t believed whether they were telling the truth or their truth. Rather, her caution is that this may not be enough to show that the #MeToo movement has gained sufficient momentum, sufficient acceptance, to guarantee that every person accuse by a woman will be convicted.
First, Andrea Constand, the main accuser in the case, was believed. She did not face the “credibility discounting” that usually confronts women who make allegations of sexual assault and harassment. As I have described in a recent paper, police officers, prosecutors and jurors tend to default to doubt when evaluating the credibility of an accuser. Even abundantly corroborated allegations of sexual assault may not result in prosecution, much less conviction. Credibility discounting helps to explain research showing that sexual assault very rarely results in criminal justice accountability.
There was a time when “default to doubt” was considered a foundational virtue of the legal system. Don’t believe because you believe, but believe because the facts support the belief. But that resulted in accusers being questioned and challenged, which made them feel devalued, as if people didn’t believe them. Of course, just because someone says so doesn’t make it so, but when it came to accusations of rape and sexual assault, that was no longer the paramount concern. At least not for women. Not for their allies. Not for the people of Salem.
#MeToo offers a much needed corrective. While not all allegations are true, of course, starting from a position of not believing women who allege sexual assault reflects a widely held set of misconceptions and biases. The defense in the Cosby trial revived many of those tired tropes of lying women, but this time, the jury rejected them. This suggests that we are recalibrating our judgments about who to believe.
That’s the narrative, that questioning accusations reflects “misconceptions and biases,” the “tired tropes of lying women.” Except they may be lying women. Or they may not. Before, women were treated as any other witness, any other victim of a crime.
This “much needed corrective” is that women require special treatment, a presumption of belief unique to women, because they cannot be treated like anyone else. Except Tuerkheimer ties up her package in uncited pretty pink bows to make women not seem so incapable.
But it’s not just the laudable corrective designed to overcome women’s incapacity to face the world like any other putative victim of a crime. It’s the crime itself, reimagined.
We are also rethinking the meaning of consent.
Because Pennsylvania state law provides no definition of consent, the judge instructed the jury to use “common sense” in interpreting the term. In the past, this would not necessarily have resulted in a conviction. Indeed, a physical resistance requirement was traditionally a mainstay of the criminal law around sexual assault. Common sense has evolved, and the jury’s verdict reflects this new consensus: an immobilized woman is not consenting.
Ah yes, the “common sense” definition. What could possibly go wrong? But if, as Tuerkheimer contends, “common sense has evolved,”* then the statute as applied is unconstitutional. Cosby cannot be convicted of a crime for conduct that occurred in january February sometime in 2004 based upon a definition of consent that didn’t exist until 2018. Notice of what conduct is wrongful is yet another fundamental aspect of due process, together with being convicted for the conduct committed rather than to vindicate the sad feelings of a hashtag.
It’s not that Tuerkheimer cares much about getting the law wrong, or that a person was convicted for what may well be all the wrong reasons upon all the wrong evidence. Rather, a lawprof’s foremost concern is that this may not be the harbinger of all men being convicted because all women must be believed.
Before you deem the silly ranting of students at CUNY law school to “fuck the law,” consider that this isn’t a law student but a law professor who cares no more about the law than the kids. Of the two, who has the greater capacity to do harm?
*Of the great many bizarrely irrational things asserted without benefit of cite or proof, this may be the one that reflects the descent into madness.
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