Cosby: Everything But Law (Update)

My pal, Elie Mystal, couldn’t believe the jury in the Bill Cosby rape trial has yet to convict him. Elie knows he’s guilty, as do so many people who didn’t sit through the trial, because he just is. And maybe he is. But not for the reasons Elie gives.

What’s amazing about the Bill Cosby trial is that it’s not really a “he said, she said” situation. Obviously, the victim says that she was assaulted and Cosby says that it was consensual, but the facts aren’t really in dispute. Think about it this way:

  • Andrea Constand came over to Bill Cosby’s house. Undisputed.
  • Andrea Constand did not say “Bill Cosby, I’d like to have sex with you now.” Undisputed.
  • Bill Cosby gave Andrea Constand drugs, and didn’t tell her what they were. Undisputed.
  • Bill Cosby put his hand down her pants. Undisputed.

Sounds pretty damning, right? Or not really damning at all. Do you know the tragedy of the Pennsylvania rape statute? I thought not. It’s not a story Elie might tell you. It’s an old lawyer legend.

§ 3121.  Rape.

(a)  Offense defined.–A person commits a felony of the first degree when the person engages in sexual intercourse with a complainant:

(1)  By forcible compulsion.
(2)  By threat of forcible compulsion that would prevent resistance by a person of reasonable resolution.
(3)  Who is unconscious or where the person knows that the complainant is unaware that the sexual intercourse is occurring.
(4)  Where the person has substantially impaired the complainant’s power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance.
(5)  Who suffers from a mental disability which renders the complainant incapable of consent.
(6)  (Deleted by amendment).

Notice what’s not in there? The core premise that’s become very popular in the past couple of years but has no basis in law whatsoever, and informs Elie’s analysis of the undisputed facts and fuels his incredulity at the fact that 12 people who sat through the trial don’t see it as simply as he does. Affirmative consent. It’s not the law.

Andrea Constand was expected to be the one, of the approximately 60 women who have come forward to allege sexual assault and rape by Cosby, to bring him down. Her strength lay in the fact that she didn’t wait decades to complain. But in 2005, her complaint was rejected for prosecution because it was deemed insufficiently credible.

By 2015, public sensibilities about rape and sexual assault had shifted, and so Constand’s complaint was given new life. This trial ensued, and the jury is, at this writing, deadlocked but still deliberating.

He and she both don’t dispute that this happened. And yet, a jury of 12 people told a judge this afternoon that after nearly a week of deliberations, they couldn’t unanimously agree about whether these facts constitute sexual assault. The judge ordered them to keep arguing, but I somehow doubt the outcome is likely to change. That’s because we live in a country where you can’t grab 12 people off the street and have them agree that giving a woman drugs, not telling her their effects, and then putting your hands down her pants without express consent is “assault.”

That, my friends, is “rape culture.”

That, my friends, is an appeal to ignorance, emotion and implicit sexism. It’s not that Elie thinks as little of women as his argument suggests, infantilizing them, denying their agency, reducing them to helpless, weak, powerless victims. It’s that the arguments used to achieve a goal flip on and off as serves the purpose. Oh wait. That’s exactly what it is, the ends justify the means.

While the social-justice-cum-feminist theory du jour is “yes means yes,” the prevailing view until recently was “no means no,” because women were viewed as equals, capable of refusing sex if they didn’t want it. Elie writes:

Andrea Constand did not say “Bill Cosby, I’d like to have sex with you now.” Undisputed.

Andrea Constand also did not say, “Bill Cosby, I don’t want to have sex with you now.” Undisputed. Elie writes:

Bill Cosby gave Andrea Constand drugs, and didn’t tell her what they were. Undisputed.

Andrea Constand took drugs offered her by Cosby and didn’t ask what they were. Undisputed. Finally, Elie writes:

Bill Cosby put his hand down her pants. Undisputed.

Andrea Constand allowed Bill Cosby to put his hands down her pants. Undisputed. None of these things prove Cosby’s innocence. None of Elie’s characterizations prove Cosby guilty. That might help to explain why, much to Elie’s shock and dismay, the jury is deadlocked.

To look at criminal allegations that happened over a decade ago in light of new and fluid social justice norms denies their actual context. What feels so wrong today can differ wildly from what was commonplace, expected, back then. The urge to devolve to an ahistorical version of reality is hard to resist, but it’s necessary to avoid holding a defendant culpable based on social norms that didn’t exist at the time. And yet, one would be hard-pressed to see this in Elie’s analysis.

And look, I am not sitting here saying that every time a woman claims “rape” she has to be reflexively believed. I’m a father or two boys who will (hopefully) grow up to be black men. Like my parents before me, I am terrified for them, and the pitfalls that might await them once they become sexually active. But my parents combated the potentially devastating effects of a false rape accusation brought by, say, a merely regretful white girl, by simply teaching me how to NOT RAPE PEOPLE!

Sure he Gertrudes. Yes, he indulges in a monumental non sequitur since “not rap[ing]” has nothing to do with not being falsely accused, by definition (that’s why the word “false” is in there). And obviously, his (all caps, in case you might miss how emphatic he is) admonition is absurdly simplistic, expected from people who disprove Darwinism but not from someone as smart as Elie.

But worst of all, Elie is old enough that his parents would have taught him “no means no,” and as an honorable, law-abiding and respectful person, he would have guided himself accordingly. You see, that was the rule at the time, the cutting-edge feminist argument in protection of women from rape. That and women are equal to men, so they shouldn’t be treated as helpless infants. What more could his parents have taught him but to “not rape” as it was understood at the time?

Update: Hung.

13 thoughts on “Cosby: Everything But Law (Update)

  1. Billy Bob

    Deliberations taking too long: Mistrial. He may be guilty of something, but not beyond a reasonable doubt. The reasonable doubt part is what jurors typically don’t understand. Most jurors think it’s their job to convict; otherwise, the defendant would not be siting at the defense table and we would not be here deliberating. It’s a terrible system and a terrible ordeal for the defendant, more so if he’s truly innocent.

    The CDL here seems to be doing a good job, which is rare, IMO. Cosby is in good hands.

    1. SHG Post author

      One of your cogent comments. You never cease to amaze, Bill. As to your astute point on “reasonable doubt,” I saw this twit this morning:

      Despite centuries of the standard for conviction being “reasonable doubt,” people are just as clueless now as ever. There has never been an instruction that serves to adequately explain this most elusive concept, and the foolish don’t grasp the problem.

  2. wilbur

    Reasonable doubt.

    It’s like obscenity in that we know it when we see it. I’ve always suspected Justice Stewart could have very well defined obscenity (at least his version of it), but chose not to associate his name with the necessary task of getting down in the dirt and then lucidly translating it to the written page. Neither has anyone else.

    No one’s yet come up with a definition for reasonable doubt that satisfies everyone, or at least has gathered a consensus of approval. I can’t imagine anyone will. There may be one imposed on us in the future, one that includes feelz and other good stuff, if that crowd gets control of things.

    Happy Father’s Day to all the fathers.

    1. SHG Post author

      I was on a committee years ago to come up with a better jury instruction for Reasonable Doubt. They all sucked. None were comprehensible to anyone, no less on a fifth grade level. The vagaries were unavoidable and the language untenable. We gave up. A lot of good people have spent a lot of time trying to come up with something. No one has ever succeeded.

      And it’s not father’s day yet. Don’t start this today.

  3. Nigel Declan

    Somehow, I doubt that the outraged thinkpieces that will be spewing forth any moment now will be on the subject of prosecutorial over-reach and the inherent risks with charging people to appease the mob,

    1. Scott Jacobs

      We’ll just add it to the list of all the ways Scott sets himself up for disappointment.

  4. Norahc

    Beyond a reasonable doubt….hard to define it when society seems to have lost all reason and people substitute their feelz for their ability to think and reason.

  5. B. McLeod

    Hasn’t been long at all since Elie was calling for “jury nullification” in all cases involving a black defendant and a white accuser. He seems to have a lot of trouble maintaining his focus.

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