Bill Cosby’s Crimes and the Impact of #MeToo on the American Legal System

The retrial of Bill Cosby, on charges of sexually assaulting Andrea Constand in 2004, ended yesterday with a guilty verdict. Cosby has been convicted of three felony counts of aggravated indecent assault: for penetration without consent, penetration while the victim was unconscious, and penetration after administering an intoxicant. He stands to be sentenced to as much as ten years for each conviction. The first prosecution of Cosby, last June, for the same crimes, ended in a mistrial, owing to a hung jury. Because the trial and the retrial divided neatly into pre- and post-#MeToo events, Cosby’s case promised to show, in real time, the legal impact of a young social movement. Anticipating the decision was like girding for a verdict on the movement itself.

Trial lawyers often say that cases are won or lost in jury selection. Judge Steven O’Neill, who also presided over the first Cosby trial, explicitly questioned the hundred and twenty potential Cosby jurors on whether they knew of the #MeToo movement and sexual-misconduct allegations in the entertainment industry—nearly all did—and, related, whether they could be impartial in assessing the trial evidence. The judge seemed to acknowledge that the effects of social shifts on ordinary sensibilities and common sense are features of the conscious design of our jury system. The twelve-person jury on the second trial was reportedly identical to that of the first in terms of racial and gender composition, but the second appeared to skew a bit younger, with more millennials in the mix—which was perhaps significant, given the much-noted generation gap in levels of support for #MeToo.

The prosecution and the defense typically battle over what, among the available evidence, should be shown to or kept from the jury. A #MeToo effect could perhaps be seen here, as well: in the second trial, the judge permitted the jury to hear much more evidence than he did in the first. Constand’s account of Cosby assaulting her after he gave her pills that immobilized her was consistent across the two trials. On retrial, the new jury heard testimony from five additional women, who told similar stories of Cosby drugging and then assaulting them in the nineteen-eighties, whereas the first jury heard from only one other victim. Dozens of women have come forward to accuse the entertainer of sexual assault, with the alleged incidents spanning a period of fifty years. Cosby has never been charged, and likely never will be, for these additional alleged crimes, because their statutes of limitations ran out before they came to light.

In 1991, William Kennedy Smith, President John F. Kennedy’s nephew,was acquitted on a rape charge, with the jury presumably swayed by Smith’s claim that the sex was consensual. The case was widely thought to have turned on an evidentiary ruling: the trial judge’s exclusion of accounts by three additional women who each accused Smith of raping or attempting to rape them in the past. The jury was not permitted to hear this evidence because of the legal principle that the accused in a criminal case is to be tried only for the crime charged, not for his character or other conduct; “prior bad acts” are generally supposed to be inadmissible as evidence.


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