In Bill Cosby's first trial for sexual assault of Andrea Constand, the jury deadlocked on all charges. It was unfortunate that Cosby's first trial ended in a mistrial, because so many of the women who had been harboring guilt and shame in other cases felt as if it were a slap in the face. But I believe that the first outcome was a result of unfortunate evidentiary rulings, not an indictment of rape victims generally. One can never be certain about what a jury will do, but on Thursday afternoon, the jury in Cosby's retrial landed on a guilty verdict. I believe this was possible because the jurors had a much clearer picture of the defendant in front of them, thanks to the following three reasons:
This trial was no longer a "he said, she said" case between Cosby and Constand. For the first trial, even though more than 50 women said that Cosby sexually assaulted them, the judge limited corroborating testimony to just one other woman. That was a mistake in my view.
The hardest cases for the prosecutors to win are those where the defense can say it's just "he said, she said." In the first trial, one additional victim did not dramatically alter that impression. An alternate juror explained: "The evidence wasn't strong enough. It was a classic he-said, she-said, and there were too many holes — too many holes in the prosecution's case, I feel."
In the retrial, Judge Steven T. O'Neill permitted five other accusers to testify. It was still less than 10 percent of the women who have come forward to accuse Cosby, but five stories is radically different than just one. Through the testimonies of the additional victims, the jury was able to see a pattern and understand that Constand's story was not just a random occurrence. To be sure, it's sad that five were needed; it reminds me of Jay Leno's observation that "you go to Saudi Arabia and you need two women to testify against a man. Here, you need 25."
It's no surprise that the public is more knowledgeable about the facts of the incidence of sexual assault than it was a year ago. Why? Because the #MeToo movement brought into the public square so many victims of famous men. The defense complained that it is hard to get a "fair trial" in light of the #MeToo era. I beg to differ. The movement has nicely educated the public about the incidence of such assault and abuse. Women often couldn't get a fair trial against their accusers when the public did not know that so many idols and leaders had engaged in sexual assault and/or harassment. As we have seen again and again, there is a tendency to treat the celebrity we loved or revered as sacrosanct. It takes the sunlight of this cultural change to let the facts filter through the cloud of a sterling reputation.
In addition to teaching the public about the incidence of powerful men subjugating women to sexual assault or harassment, the #MeToo movement has given a platform to women to explain why they didn't tell anyone. It turns out that many of them felt no one would believe them. That was true of the first witness, Heidi Thomas, this time around.
Others didn't say anything, because they feared that it would harm their fledgling careers. Check off this factor for Thomas, too, who said she also kept the matter secret because she feared affecting her young modeling career. She also blamed herself, which we know is what victimized women often do. Indeed, we have a term for it when other people do it: victim-blaming. It happens a lot when powerful men are accused. Take, for example, the people who engaged in victim blaming of Harvey Weinstein's victims here and here.
In short, this first witness set the stage for the jurors to understand how Cosby could have many victims who were not vocal about the assaults. With the long line of women echoing similar themes over the last year, she was credible.
In the retrial, the jury was permitted to learn that Constand had received a huge settlement from Cosby, in the amount of $3.4 million. The defense argued that she was trying to "milk" Cosby for money. Maybe that argument would have some force if it was a much smaller number. That might show that he was just trying to get rid of an annoying lawsuit. But $3.4 million is a lot of money to receive even in a sexual-assault case, and it is an extraordinary amount to make the suit go away. That's not the amount of money one pays to just "get rid" of a plaintiff. In fact, the sheer size of the settlement indicates he knew he was in actual trouble. Surely, that was not lost on the jury.
This is a game-changer. The #MeToo movement swept away the habits of thinking that immunize men like Cosby. That created a space where the jury could see the facts and the man for who he is. He is not "America's Dad" anymore.