During Kevin Steele’s successful election campaign for District Attorney of Montgomery County, Pennsylvania, in 2015, he attacked the longtime incumbent, Bruce Castor, for having “refused to prosecute Bill Cosby” and promised “tough sentences for sexual predators.” After taking office, District Attorney Steele immediately moved on his promise to vindicate Bill Cosby’s victims, arresting and charging Cosby for the sexual assault of Andrea Constand, one of nearly sixty women to have accused Cosby of sexual assault over several decades. But Cosby’s criminal trial, on three counts of indecent assault for the 2004 incident, ended in a mistrial due to a hung jury, after six days of deliberations produced neither conviction nor acquittal.
The sheer number of Cosby accusers who have come forward, and the consistency of their descriptions of his modus operandi, are so overwhelming that they produce little doubt that Cosby used his fame and power to lure women, give them incapacitating drugs, and have sex with them without their consent. When one views Cosby and Constand as stand-ins in a narrative of rapists acting with impunity against powerless victims, it is tempting to consider the failure to convict Cosby as one of the highest-profile examples yet of assaulted women being disbelieved and devalued.
But the legal meaning of the Cosby mistrial is both less and more than that. Standards that enable criminal conviction and punishment for a specific act differ markedly from the ones that lead to personal beliefs that someone must be guilty of wrongdoing. In the midst of fifty-two hours of deliberation, the jury requested clarification of what proof “beyond a reasonable doubt” meant. The judge explained that a reasonable doubt is a real doubt that causes a juror to hesitate. In other words, if a juror were mostly or nearly convinced that a defendant was guilty, but still had some doubts that seem reasonable, the appropriate vote would be for acquittal. Apparently, some of the jurors did have such doubts, while others did not.
The extraordinarily high prosecutorial burden of proof in any criminal trial is intentionally designed to heavily favor defendants, because we long ago embraced as a society Blackstone’s principle. Formulated in the seventeen-sixties by the English jurist William Blackstone, the presumption is that it is better to have ten guilty people go free than that one innocent person suffer. Hard as it is to stomach today, embracing that calculus means that we should even want ten rapists (not to mention terrorists and murderers) to go free in order to protect the one falsely accused. Unfortunately, Cosby is one of those to escape criminal punishment. And, to put a fine point on the over-all gendered impact of requiring proof “beyond a reasonable doubt,” the inevitable effect of the heavy tilt toward defendants is that in sexual-assault trials, which involve mostly male defendants and mostly female accusers, men are favored over women.
This structural bias in favor of criminal defendants does not create anything like an even playing field between accused and accuser—and it is not supposed to do so. But when the testimony of a female complaining witness is the centerpiece of a sexual-assault trial, as was true of the calm testimony of Constand at Cosby’s trial, we fear a repeat of our sexist legal history of putting the victim on trial, of pointing to her sexual past or reputation, to insinuate her dishonesty. Rape-shield laws adopted from the nineteen-seventies through the nineteen-nineties now preclude defense lawyers from doing exactly that. But, because it is essential to a fair trial that criminal defendants have the chance to try to show that the stories of witnesses against them are untruthful or inaccurate, the credibility of the accuser is inevitably still on trial.
It was the job of Cosby’s defense to attack Constand’s credibility, to try to sow reasonable doubt in the minds of the jurors about whether her account should be accepted as true. That is an uneasy fact for those who think sexual-assault complainants should always be believed. But raising doubts about a witness’s credibility is basic to any legal trial involving testimony under our legal system. As expected, Cosby’s defense lawyers pointed to inconsistencies and inaccuracies in Constand’s past statements about the incident. The case most crucially turned on whether there was consent for the sexual acts in question. Constand said Cosby gave her pills that immobilized her and made her semi-conscious, and then touched and penetrated her with his fingers without consent. The defense said the two had a romantic relationship, that the pills were merely Benadryl, and that the sexual acts were consensual.
But the jurors who voted to acquit did not actually need to conclude that Constand was a scheming liar. They could have thought that Constand was being truthful as to what happened that night, but that some of the other evidence produced reasonable doubt regarding lack of consent. Evidence that she called him at least fifty-three times after the night in question, and that Cosby offered to pay for Constand’s schooling afterward (intended by the prosecution to show that Cosby felt remorse for assaulting her), may have suggested that each party wanted something from the other. Perhaps he wanted sex and she wanted his help with her career. In that context, Constand agreeing to take the pills he gave her at his home may have created a cloud of ambiguity for some jurors regarding her consent.
In a deposition in Constand’s 2005 civil suit against Cosby, which was read into evidence at his criminal trial, Cosby explicitly acknowledged that he kept Quaaludes to give to women to have sex with them. (Cosby paid her an undisclosed settlement amount, in 2006.) While this appears akin to a “smoking gun,” Cosby’s admission is not literally inconsistent with his giving the pills as party drugs to women to ingest voluntarily for the purpose of sexual arousal. Perhaps some jurors thought that there was a small but real chance that Constand accepted the pills as part of a consensual sexual encounter on this particular night. That is all it takes for reasonable doubt—and just one juror’s reasonable doubt can hang a jury.
There is also a natural reluctance on the part of many people to confidently rely on accounts of an incident that occurred thirteen years ago. Personal experience with how the mind over time tends to distort or alter memories could have led some jurors to believe Constand but still hesitate to incarcerate Cosby. Jurors need not have thought Constand was a liar to have been swayed by the passage of time toward reasonable doubt.
Many Cosby accusers will never have their day in criminal court, as Constand did, because the statutes of limitations for the crimes have expired. So the denial of vindication here can feel like defeat. But criminal charges are not the only legal path, and many of Cosby’s accusers have pending civil cases against him. Some have also filed civil slander cases against Cosby for saying that they were lying about their assaults. The burden of “beyond a reasonable doubt” does not apply in a civil trial, where a jury need only conclude that it is more likely than not that Cosby assaulted the plaintiff.
Steele was elected as District Attorney on a platform that focussed on Bill Cosby and on empowering victims. The jury is out on whether his ambitious pursuit of a criminal trial here helped sexual-assault victims as much as his own profile and career. But it would be wrong to take away from the hung jury the message that sexual-assault victims are widely and simply disbelieved. The jury result instead reflects exactly the conflict, and ambivalence, we have between honorable legal principles that for good reason structurally bias criminal trials against conviction, and our cherished ideal that sexual-assault victims should be believed and vindicated.
Jeannie Suk Gersen is a contributing writer for newyorker.com, and a professor at Harvard Law School.
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