CRIME
04/18/2018 02:22 pm ET Updated Apr 19, 2018

Don't Count On 'Me Too' To Sway The Bill Cosby Jury

The Me Too movement has launched a national discussion on sexual violence. But experts are skeptical about its power inside a courtroom.
Bill Cosby arrives for the first day of his sexual assault retrial at the Montgomery County Courthouse in Norristown, Pennsyl
Jessica Kourkounis / Reuters
Bill Cosby arrives for the first day of his sexual assault retrial at the Montgomery County Courthouse in Norristown, Pennsylvania, April 9, 2018. 

In early April, Judge Steve O’Neil asked potential jurors in Bill Cosby’s sex assault retrial a question he couldn’t have asked 10 months ago: “Do you know about, or have any knowledge of, the ‘Me Too’ movement or allegations of sexual misconduct in the entertainment industry?” Of the 120 potential jurors, only one had not heard of the ongoing national dialogue on sexual misconduct, power abuse and consent.

One of the biggest questions looming over the Cosby trial, now in its second week, is how the cascade of headlines about sexual predators over the past year will affect jurors. This is the first high-profile sex assault trial of the Me Too era, and some see it as a test of the movement’s ability to shift public opinion on sexual harassment and violence.

“The #MeToo movement is on trial,” wrote Boston Globe columnist Renée Graham. “Bill Cosby is the defendant in his sexual assault retrial, yet the undeniable subplot is whether the still-burgeoning movement will impact the verdict.” Jen Kirby asked in Vox: “Just how much has the world changed in the 10 months since the jury deadlocked on whether to believe Cosby’s accuser?”

During Cosby’s original trial last June, in which complainant Andrea Constand accused the TV star of drugging and sexually assaulting her in 2004, the jury could not reach a unanimous decision. In his retrial, many people are hopeful that the Me Too movement will help push jurors toward convicting a man whom at least 57 women have accused of sexual assault in the media.

But while the public discussion over sexual violence is progressing, reversing deeply entrenched beliefs is a longer and more complicated process ― especially inside a courtroom.

A notoriously low percentage of sexual assault cases get referred to prosecutors ― and even fewer result in a conviction ― in part because jurors hold a lot of inaccurate views about sex crimes. For example, there’s a widespread belief that sex assault involves a stranger attacking someone in a dark alleyway, when in reality, at least 72 percent of victims know their abusers, according to the Bureau of Justice Statistics. And people assume sexual abuse always involves physical force, but victims often don’t have injuries.

There are also myths about how victims should respond ― that in order to be considered credible, a victim has to fight off their abuser, flee the scene, file a police report immediately and have a flawless memory of the assault. But many victims freeze during the abuse, delay reporting the crime, have spotty or fragmented recollections of what happened and keep in contact with their abusers ― behavior that makes sense once you consider how trauma affects the brain, and the lasting psychological impact of being violated by someone you know or trust.

Instead of holding perpetrators fully responsible for sex crimes, there’s a tendency for the general public to blame victims for drinking too much, wearing too little or being sex workers or strippers.

“It would never cross the jury’s mind to say ‘When she left that window open, was she really wanting to get burglarized?’” said Dominic Willmott, a research fellow in forensic psychology at the University of Huddersfield in England. “However, in rape cases the question is always asked. It’s almost the victim that’s on trial, not the defendant.”

Judges and defense attorneys are constantly reinforcing these myths. The lawyers representing Cosby have tried to paint Constand as a gold-digging liar, pointing to the $3.4 million civil settlement she received in 2006 and highlighting inconsistent statements she made to police.

In a recent case involving a woman who accused a truck driver of holding her at knifepoint and raping her three times, the defense focused on the complainant’s history of sex work and drug use. The jury found the defendant not guilty despite DNA evidence linking him to 11 other sexual assault reports. And when a Canadian judge recently acquitted a taxi driver charged with sexually assaulting a woman passed out in his back seat, he declared that “clearly, a drunk can consent.” (The province’s top court later overturned that decision.)

While many jurors are still strongly influenced by these misconceptions, some experts think the Me Too movement has the power to enlighten them about the reality of sexual assault.

“This country has gotten a graduate-level course on the issues surrounding violence against women,” said Jan Langbein, chief executive of Genesis Women’s Shelter in Texas. “I think in a lot of ways we’ve stopped looking at the credibility of the victim as opposed to concentrating on the behaviors of the perpetrators.”

Hearing the graphic allegations against men such as Harvey Weinstein, Matt Lauer and Bill O’Reilly has likely helped jurors understand that sexual assault is “all about power and control,” Langbein said, rather than “what the victim wore and how much they had to drink.”

The many Me Too stories have also shown that sexual predators aren’t fire-breathing monsters ― they can be progressive comedians, charismatic TV hosts and beloved artists. These allegations have revealed how men in all industries use their professional authority to manipulate vulnerable women and bully victims into staying silent.

Yet despite this very public exposé on what sex assault really looks like, Willmott is not convinced Me Too will have bearing on Cosby’s fate. He conducted a study on whether debunking rape myths before a mock sex assault trial ― for example, explaining to jurors that stranger rape and false rape reports are rare, and that most victims don’t have injuries ― would change their feelings toward the defendant. He found that jurors are just as likely to return a not-guilty verdict whether or not they’ve received any supplemental information about sex crimes.

“These beliefs are so deep-rooted that people can’t push them aside,” he said. “They are so deeply embedded in what we believe, we almost can’t shake them off.”

People who believe myths about rape will simply ignore facts that don’t fit their opinions, Willmott said. In court, they tend to invent a story about the defendant’s innocence, and throughout the trial, they’ll “pick evidence that fits the version of the story they constructed.”

Though there is some research to show that having expert witnesses explain victim behavior can sway juror attitudes on issues such as delayed reporting of a crime, Willmott has found that a person’s overall bias against a complainant is hard to change.

“Their views aren’t linear, they are multi-level,” he said. “If you tackle one, there’s another 50 that remain untackled that tie into a broader picture of negative attitudes.”

The public discussion over sexual violence is progressing. But reversing deeply entrenched beliefs is a longer and more complicated process.

Kaarin Long, an assistant attorney in Ramsey County, Minnesota, is likewise dubious about whether the movement’s cultural progress will actually influence the outcome of trials. Having “a sort of general conversation that says sexual harassment in the workplace and sexual violence is wrong” is very different from making legal decisions as a juror, she said.

“You’re in a courtroom with one man, accused of a specific act, where 12 people have to unanimously agree it happened beyond a reasonable doubt,” she said. “Right now [Me Too] is not enough, in my view, to make the difference between guilty and not guilty in the courtroom.”

She’s also skeptical that the movement is as widespread as the media seems to believe. “The white feminist women of the world are joining together on it,” she said. “But in the cacophony of the experiences of people who don’t pay too much attention to these issues, it might not necessarily have as much force as we think.”

Others are worried that some jurors might be influenced by the backlash to Me Too, as seen with celebrities like Tony Robbins and Matt Damon who’ve accused the movement of attacking innocent men and, in Damon’s words, conflating rape with “patting someone on the butt.” (He later apologized for the remark.) “There are a lot of people who see women as gold diggers and money grubbers,” said Danielle McGuire, an author and historian who writes about racial and sexual violence. “And that’s the way the main survivor in this [Cosby] case is being portrayed.”

While McGuire thinks the Me Too movement will make people think more critically about sexual assault, she knows the more significant effects will require time.

“You don’t tear down the walls of patriarchy with a tweetstorm or a couple marches, even,” she said. “The Me Too movement will have to go on longer, and do more education and training.”

Willmott’s own research has led him to conclude that the most effective way to rid courtrooms of rape myths is to vet jurors more intensely. A potential jury pool would be asked a series of questions ― such as “Is it a biological necessity for men to release sexual pressure from time to time?” and “Do women receive ample support after a sexual assault?” ― in hopes of exposing attitudes that would prevent them from remaining impartial.

Willmott believes Me Too could indirectly influence future jurors if it leads to more education about consent in schools, but he doesn’t expect it will sway any of the 12 people responsible for deciding Cosby’s fate.

“A combination of factors may lead jurors to being less biased,” he said. “But I don’t think that’s going to happen in the short term, from this movement alone.”

CORRECTION: A previous version of this story indicated the conviction rate for rape cases is less than 1 percent. While experts believe that rape cases referred to prosecutors account for a very small percentage of the total estimated number of cases, the actual conviction rate for the few prosecuted cases is more than 60 percent.

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