Amid the turmoil of the past year, the once-huge story of multiple rape accusations against television star Bill Cosby had been almost forgotten — until last week, when his trial in an alleged 2004 assault ended in a deadlocked jury and a mistrial. Given the number of accusers, many saw this as a devastating failure of justice, particular for women.
“Survivors of sexual assault have to watch every day as the legal system calls them liars and denies their truth,” tweeted fellow actor Lena Dunham. A tweet from a social justice activist in Minneapolis blamed “the power of the patriarchy.”
But the truth is more complicated. The outcome of the Cosby trial is part of a justice system that, when it works as it should, protects the rights of the accused. And while the process can be grueling for victims, undermining those protections endangers us all.
The Cosby case is, in many ways, not a typical rape case. The charges were filed more than 10 years after the alleged crime; the accused is rich and famous. But some of the challenges are all too common. There is no physical evidence and no eyewitness. Andrea Constand, a former manager of the women’s basketball program at Temple University, says Cosby drugged her at his home and sexually abused her after she passed out. Cosby says that they had a consensual relationship and that the pills he gave her were Benadryl.
While more than 50 women also have accused Cosby of sexual assault, none of those claims were admissible at the trial except one: Kelly Johnson, a former assistant to Cosby’s agent, testified that he had victimized her in 1996 in a way very similar to Constand’s story. Yet Cosby’s attorneys were able to attack both women’s credibility, pointing out that Constand gave some inconsistent accounts, and that Johnson only came forward in 2015 amid the Cosby scandal.
These days, such questioning is denounced as “victim blaming.” Yet, like it or not, the defense must be able to try to discredit prosecution witnesses, including the complaining witness. Inconsistencies in an account of sexual assault may be the result of imperfect recall compounded by trauma; they also can point to fabrication. A high-profile case can encourage genuine victims to come forward, but it can also be a magnet for hoaxes and copycat claims.
In Cosby’s situation, enough of the women told their stories at different times, before the surge in publicity, to convince most observers of his guilt. But a court of law is different from the court of public opinion. The accused gets the benefit of the doubt — not because he’s a man, but because he’s the accused.
Most defendants don’t fare as well. Unlike Cosby, they can’t afford high-quality legal services. But weakening the presumption of innocence would most likely backfire against poor and powerless defendants. And it could hurt women, too. In the 1980s, when calls to “believe the children” influenced many child sexual-abuse prosecutions, innocent female defendants such as New Jersey day care teacher Margaret Kelly Michaels got railroaded along with men.
Cosby’s legal victory might not last. He faces a retrial, as well as several civil suits. In the meantime, telling women the system is hopelessly stacked against them does a serious disservice both to women and to justice. Contrary to the myth that rapists get a pass in the courts, a 2009 Bureau of Justice Statistics study showed that rape charges were as likely to result in conviction as charges of other violent offenses.
The justice system is imperfect. But it’s all we have.
Cathy Young is a contributing editor to Reason magazine.