Why Bill Cosby walked free
The crux of this case was credibility. And we're awash in templates that hold women to absurd standards of behavior — and dismiss them as dishonest when they fail.
A funny thing happens when men lie in plain sight. Especially famous ones. We bend over backwards to pretend it isn't true. We'll think up scenarios that make sense of the person's behavior. We'll develop synonyms that obfuscate the unpleasant fact that their lie is a lie and explain why it is not just tasteful but responsible to euphemize.
That impulse reached toxic levels during the Bill Cosby trial. The comedian was charged with three counts of aggravated sexual assault against former star basketball player Andrea Constand. The jury was unable to reach a verdict after six days of deliberating, and despite asking to hear several snippets of testimony again, and for clarity on reasonable doubt and what "without her knowledge" meant.
"This is neither a vindication or a victory," Judge Steve T. O'Neill said when he announced the mistrial. But of course that's not true: It was a legal victory for Cosby, whose lawyers had been pushing O'Neill for days to make that decision.
Why did Cosby walk free? Because the crux of this case was credibility. And we're awash in templates that hold women to absurd standards of behavior — and dismiss them as dishonest when they fail.
Cosby's defense team spent a mere six minutes on the actual evidence. But defense attorney Brian McGonagle dedicated nearly two hours to calling Constand's honesty into question.
That should have been surprising, since it was Cosby who has admitted to a pattern of lying. But it wasn't. Nor was it surprising that it worked. After being accused of sexual misconduct by dozens of women, the hung jury will surely strike millions of Americans as a travesty of justice. But again, it isn't surprising.
This case will go down as a textbook example of how, faced with two conflicting accounts, we resort to amateurish models of how typical humans behave. Those templates give us the illusion of impartiality, and they have enormous implications that we don't quite understand.
Consider the way many people view the "rape victim." This is, for obvious reasons, a poorly studied demographic. We know so little about how victims of sexual assault actually behave after being attacked that our expectations for them are both oddly impoverished and absurdly strict. We understand that sexual assault is a terrible thing, but our imaginations from that point onward fail us. We expect rape victims to be devastated, of course, but also accurate, collected, and consistent. We expect them not to contact their assailants again. We expect them to speedily document and report what happened, even if they were drunk or drugged.
We have little patience for excuses. Oh, they've barely had time to come to terms with what happened? They're still piecing it together? They aren't quite ready to relive and retell the experience to a police officer after spending several hours in a hospital waiting to get a rape kit that will never be processed? Too bad, we quietly think. If you want a good legal outcome, get over it.
If victims don't behave in exactly these rather robotic ways — in fact, if they do anything but quickly launch a formal legal proceeding against a person whom (in the majority of cases) they trusted and knew, and who attacked them — we question their motivations and their honesty. It's a remarkably stringent model.
Take, on the other hand, the way many of us view a "cheater" — a married man like Cosby who repeatedly has extramarital sexual encounters. What a marvelously permissive category! Whereas the rape victim is expected to be clear, organized, and logical, the cheater is granted gigantic latitude. He is understood to be fuzzy. Confused. Tormented by ennui. Of course he lies, but these hardly count as lies — they are only to his wife, after all, and one must be philosophical. Realistic. It's not that the cheater is dishonest. Sure, he prevaricates constantly and creatively, deceiving the very people who trust him most, but who are we to judge? The cheater is caught in an intriguing and perfectly understandable human quandary.
It helps, of course, that we have hundreds of books by and about cheaters — and that we've been persuaded that their shortcomings are charming demonstrations of human frailty rather than evidence that the person in question is demonstrably, and by his own admission, a lying liar who lies.
You see what I'm driving at: When these two mental models go up against each other in court, these two absurdly different standards get unevenly applied. A hypothetical person victimized by someone they trust has her every action scrutinized for how plausibly it conforms to our nonexistent Guidebook of How Traumatized People Behave. A person who (best case scenario) had years to reconsider but persisted in violating the trust of those closest to him is afforded understanding and leeway.
As the Cosby jury doggedly tried to reach a verdict, they were forced to put these two models in dialogue with each other. Based on these stereotypes, who is most credible: Andrea Constand or Bill Cosby?
Now, the details of this case were problematic for both sides. Constand's account to police, for example, shifted significantly. She initially reported the assault as having occurred in March, and later revised her statement to January. That posed a problem for the prosecution.
For the defense, it was a big problem that dozens of women of various races and ages have come forward to report having being victimized by the star in similar but not-quite-identical ways. It was an even bigger problem that Cosby himself admitted to buying Quaaludes with the intention of illegally administering them to women in a 2005 deposition.
The peculiar thing about this case, then, is that it's not actually a he-said/she-said. It's more of a she-said/he-agreed. Cosby and Constand agree on many of the basic facts: that Cosby digitally penetrated Constand after giving her one and a half pills he called his "little friends," that her response to his advances was to remain immobile, and that he left her on the couch and went to bed are not in dispute.
There are discrepancies too, naturally: According to Constand, when she'd asked what the pills were, he told her they were herbal. Cosby was vague about the pills when Constand and her mother called to inquire (he would later say that they were Benadryl). Whatever they were, the pills were not (according to Constand) "herbal," as Cosby had said — she reported being unable to control her limbs and seeing double.
It's instructive to note, too, that while Cosby's lawyers have vehemently insisted that the relationship was romantic and consensual, what Cosby describes is actually much closer to Constand's version of events: "I don't hear her say anything. And I don't feel her say anything," Cosby said of the sexual contact. "So I continue, and I go into the area that is somewhere between permission and rejection. I am not stopped."
Whatever "the area that is somewhere between permission and rejection" might mean, it would be hard to argue that it connotes romance, let alone enthusiastic or even active consent.
It might look like there's no contest here. Constand's inconsistencies may or may not be explained by the uncertainty and confusion that might plague a victim of sexual assault as she attempts to reconstruct what happened. But Cosby's consistency is arguably the bigger problem in this case. His actions can't be explained away because he largely admits them.
Ah, says the defense, in a remarkable twist, but that just proves his honesty! The unexpected result of Cosby and Constand's agreement on the basic facts is that many think it makes him look better. This is the pernicious power of the cheater template: It erases a huge amount of deception. He's a cheater, not a liar, people say, and he admits that. He's no angel, but cheating is not a crime. Through this distorted reading, Cosby's cheating may actually have helped him; his own lawyer claimed it made him look more credible.
Constand and Cosby were held to radically different standards for honesty. Our models for how rape victims and cheaters behave don't produce impartiality but its opposite. And yet, when attempting to fairly judge competing claims, it makes sense to resort to the myths of your culture. Of course people reach for these radically different (and deeply unfair) templates of what we understand human behavior to be. The true rape victim behaves in exactly one way. No latitude will be granted her for straying or personal idiosyncrasy. The traumatized victim will not be afforded any of the ordinary human foibles we so easily grant the cheater.
The cheater, meanwhile, gets the benefit of the doubt. We rush to supply him with explanations. Perhaps it was unkind to digitally penetrate a woman after administering a sedative under false pretenses, but what is Benadryl if not a stronger Chardonnay? Romance is complex, and who knows what he might have been feeling that night? What feelings of guilt must have plagued him as he left his alleged lover with her bra around her neck, immobile and blanket-less, on the couch (while he himself went to bed). Perhaps he was sad, or frustrated, or thinking of his wife.
In a case like this, where credibility matters, cheating is not actually some special sub-class of acceptable dishonesty. Properly regarded, cheating means lying so well that you deceive the people who know you best and trust you most. It is evidence that you excel at dishonesty.
So let's unpack Cosby's relationship to deceit. Thanks to that 2005 deposition, we have Cosby's own account of how he lied. Asked how he justified to his wife paying one of his alleged victims personally (instead of using the foundation), Cosby replied: "I would say to her that there is a person I would like to help." Asked whether the objective there was to disguise that he was paying one of his accusers, he said "Yes." "Who were you preventing from knowing that?" "Mrs. Cosby."
That, right there, is Cosby admitting to a pattern of deceit. That he was cheating is not — and it amazes me that this has to be said — an excuse.
But Cosby had more than just the cheater template going for him. He had the "star" template, too — yet another explanatory model that downplays dishonesty. He used his celebrity to strategically silence one of his alleged victims, Beth Ferrier, in the press. (He said more than a decade ago that he gave the National Enquirer his "exclusive story" because they then promised not to print Ferrier's version of events.)
Then there's this:
Q. Did you ever think that if Beth Ferrier's story was printed in the National Enquirer, that that would make the public believe that maybe Andrea was also telling the truth?
Q. So that you knew when this article was printed, when you told the Enquirer this, that you had to make the public believe that Andrea was not telling the truth?
A. Yes. [Bill Cosby and Constand lawyer Dolores Troiani, via the AP]
Cosby admits there to a premeditated campaign to suppress anything that would make Andrea Constand seem credible to the public. That is not honest. And yet, if you're anything like me, you'll be tempted to invoke the template that immediately springs to mind: This is just a star managing his brand! They do this all the time! But before we normalize actions like these, it's worth thinking a little harder about the incredible deceptions those maneuvers require. We may understand that celebrities lie blatantly and suppress true stories about themselves. We may know that they manipulate people. We may even pride ourselves on this sophisticated understanding of how the world works.
It's still lying.
This is all illustrative of the ugly split between the affable, charming man Cosby knows how to be in public and the person he can get away with being in private. Luckily for us, there's a record of him accidentally performing that distinction. You might recall the moment, caught on tape, when Cosby pressured an AP reporter who asked him about the allegations. The comedian was displeased.
"I would appreciate it if it was scuttled. ... I think if you want to consider yourself to be serious, that it will not appear anywhere," he said, adding later, "We thought that AP had the integrity to not ask."
The footage is instructive. The man on camera is not the jolly peddler of Pudding Pops.
Lili Bernard, an alleged victim who once guest-starred on The Cosby Show, described another instance where the real Cosby parted ways from the amiable effects he produced. "I remember the live audience applauding and roaring at the end of The Cosby Show episode in which I guest starred, in December of 1991. I remember you glared at me, and I heard you mutter under your breath, 'Fooled them again.'"
That Cosby has admitted to lying for years to dupe his wife and protect his public image was not enough. That he admitted to buying drugs with the intention of giving them to women in whom he's sexually interested was not enough. That he tried to intimidate journalists was not enough. Some jurors clearly still felt that Constand's credibility was lacking.
How did Cosby and his lawyers pull that off? Especially given that the defense lasted only six minutes?
Because it's easy. It's built in. As I said earlier, we're awash in templates that hold women to absurd standards of behavior and dismiss them as dishonest when they fail. There is simply no easier way to discredit someone than to feminize them.
How does the public fight back against such a person? By talking. By looking at the evidence. And especially, by refusing to excuse bad behavior or repackage it using some more appropriate synonym.
Cosby's nefarious alleged activities initially came to public view after decades only because people finally bothered to look past the available templates. That this has failed to result in a legal conviction is a travesty. Cosby's alleged victims deserved much better than they got. But justice comes in many forms, and it shouldn't escape our notice that what matters to men who see sexual assault as a "perk" of fame is less their position in the courthouse than their position outside it. If the public can look at the evidence and shrug off the exculpatory templates on which Cosby's whole defense depends; if it can stop thinking of certain patterns of lies as acceptable; and if, in lieu of hypothesizing conspiracies to crush men, it can simply recognize the ones that have for decades crushed women, then perhaps this legal drama will have served some purpose.