The Bill Cosby Re-Trial: Lessons for Civil Sexual Harassment Claims

When you think about it, how could a jury fail to convict a man who sexually assaulted 60 ( yes, that is SIXTY, or sixty, or OMG s-i-x-t-y) women, almost all of whose stories are eerily similar?  That is, he gave them alcohol and drugs, such as Quaaludes, and then sexually assaulted them. Guilty, guilty, guilty.

As we watch the re-trial of the famous Bill Cosby for his sexual assault of Andrea Constand, we have to wonder why he wasn’t convicted the first time (i.e., why did the case result in a mistrial?) and, given the ascent of the #metoo movement, with the accompanying consciousness raising, whether justice will be done in the retrial. The jury hasn’t yet started to deliberate but some lessons can already be learned.

First, of course, the burden of proof is simply higher in a criminal case than in a civil case, and there are good policy reasons for that. We want to be very sure when we put someone behind bars. Second, the jury pretty much never has the entire story. In the first trial, the judge only allowed one other victim to testify, and in the re-trial, 5 victims have testified. In all cases, for reasons both right and wrong, not all evidence is heard by the jury. And lastly, it is unusual for a civil case involving incidents so far into the distant past to proceed, which does provide reasons to sow reasonable doubt, and to question witnesses’ and victims’ memories and motives, in this criminal case.

But what is similar about the original Cosby trial and the re-trial? The good old-fashioned blame the victim.  Cosby’s lawyers are calling the victim, Andrea Constand a “con artist”, who is obsessed with fame and money. They are vilifying her and suggesting she is a liar, who made up a story to get rich and famous. In the re-trial, the judge has ruled that the fact that Cosby paid Constand $3,380,000 to settle the sexual assault civil lawsuit is admissible evidence. The defense is using the payment to support its theory that Constand is greedy. But doesn’t this payment equally support the theory that Cosby is guilty as charged?  Even the likes of Bill Cosby doesn’t just hand out $3,380,000 for no reason, especially with 59 other victims possibly waiting in the wings.

There are credibility issues in this case, but the criminal defendant himself is remaining silent. At this moment in the trial, the credibility determination ironically seems to rest on the relative credibility of two women: the victim, and a woman testifying on behalf of the defense. Nice way to move the focus off the bad actor and pit two women against each other.

The defense has put on the testimony of Marguerite Jackson, someone who says she spoke with the victim, to suggest that the victim made the whole thing up. A close read of Marguerite Jackson’s testimony (really a close read of newspaper articles about the testimony!) suggests that Ms. Jackson also has some credibility issues and her story seems like a twist on the truth. Jackson says the two women were watching television and a story came on about a sexual assault by a famous person. According to Jackson, Constand told her that she had been attacked by a famous person but couldn’t prove it. Jackson says she told Constand that she would report it. According to Jackson, Constand asked what the case on tv was about, and Jackson told her it was a civil case and therefore was about money. Then Jackson, not Constand, brought up the issue of money, admitting she said that the case was about money and that, “Money is the best motivator.” After that, Jackson then testified, somewhat bizarrely, that Constand admitted she made the story up. Jackson also testified that Constand, “I could say it did. I could quit that job… I could get that money.”  The prosecutor has attacked Ms. Jackson’s credibility, suggesting it was Jackson who was out for fame and fortune.

The prosecution is offering evidence that it was Jackson, not Constand, that was looking for her moment of fame and therefore was offering dishonest testimony. I believe that Constand’s testimony has more integrity than Jackson’s testimony, and is more logically consistent. Of course, I am interpreting this through my own lens, as everyone does. I wait with anxious anticipation to see how the jury interprets this conversation and the rest of the evidence. In some ways this will tell us how far society has come, and whether the #metoo movement has had some influence on the perspective of society. On the other hand, it may just tell us what this jury of 12 people happens to think.

We should be cautious to not make too much of any one jury’s determination of what happened in one of the sixty cases that “coulda shoulda woulda” been brought against a wealthy male celebrity who has abused his lot in life. Regardless of the outcome, let’s keep chipping away at the privileges and biases that allow this behavior to permeate our society.

Jody LeWitter