CRIME
04/27/2018 03:27 pm ET Updated Apr 30, 2018

The Cosby Verdict Won’t Fix A Broken Legal System

He was found guilty, but the system is still stacked against victims.

The Bill Cosby verdict is a victory for all victims of sexual assault ― a group that’s not used to getting justice from the legal system.

It was incredibly emotional to watch his accusers collapse in tears after the trial and to hear one of them tell reporters in a choked-up voice, “I feel like I’m dreaming. Can you pinch me?” The more than 60 women who have accused Cosby of sexual misconduct expressed relief to the media, and many people touted the verdict as a milestone on Twitter.

“We did it. We won. We beat Goliath,” Heidi Thomas, who accused Cosby of sexually assaulting her in 1984, said on CNN.

There are many, many reasons to celebrate this verdict. Most sexual assault victims have terrible experiences with the legal system. Police and prosecutors often judge or dismiss them, and in the few cases that make it to trial, the defense often retraumatizes, shames and attacks the victims on the witness stand.

Conviction rates for these crimes are notoriously low, and it’s more than likely that at the end of a long, painful process, the jury will side with the defendant. The Cosby verdict, along with the conviction of former USA Gymnastics doctor Larry Nassar for sexually assaulting over 260 women and girls, sends a very important and high-profile message: that judges and jurors may start believing victims.

We did it. We won. We beat Goliath. Heidi Thomas, who accused Cosby of sexual assault

While that message is extremely important in encouraging more survivors to come forward, this victory should be put in perspective. The legal system is still stacked against victims, and a high-profile guilty verdict is not enough to shift a legal culture that treats complainants as if they were the ones on trial.

Cosby’s sexual assault case was unique. A first trial ended in a mistrial 10 months ago, which means jurors in the retrial already knew about the lawsuit and were likely aware of the wave of sexual predators the Me Too movement has exposed. The judge allowed testimony from five other women who accused the comedian of sexual assault — an anomaly for most cases — which buttressed complainant Andrea Constand’s allegations and establish that the criminal behavior was part of a pattern.

The prosecutors were able to present the jury with Cosby’s testimony from a 2005 civil case, in which he admitted that his sexual encounter with Constand existed in a gray area “somewhere between permission and rejection.”

Andrea Constand at the courthouse in June 2017. Cosby's legal team portrayed her as being out for his money.
Mark Makela/Pool/ Reuters
Andrea Constand at the courthouse in June 2017. Cosby's legal team portrayed her as being out for his money.

Most sexual violence crimes lack evidence and public attention. Most lawyers call them the most difficult cases to prosecute because they so often lack physical proof ― victims often don’t have injuries or DNA evidence from rape kits ― and there are rarely any witnesses. These trials are often dubbed “he said, she said,” since they boil down to one person’s account of events against another’s. Most judges and jurors are predisposed to believe the defendant. Many victims instead choose to settle their cases in civil court or don’t report their assaults at all.

Despite the national dialogue on sexual violence that the Me Too movement has sparked, the public holds deeply entrenched stereotypes about sexual assault victims that are very difficult to reverse. Many people think survivors should be blamed for their assaults, based on what they wore, how much they had to drink or how they acted. The cultural expectation is that credible victims should follow a script: Fight, flee and immediately report the abuse. However, experts on violence against women say that isn’t typical behavior.

These myths — which are constantly reinforced in movies, television shows and music — aren’t just something the general public believes; police, lawyers, judges and jurors have internalized them, and those are the very people responsible for deciding if a case makes it to court and whether the accused goes to prison.

The criminal justice system holds such backward views when it come to sexual assault that marital rape is still partly legal in eight states. Police regularly throw out rape reports without investigating them, and prosecutors often mishandle sex assault cases because they think that victims who delay reporting their assault or who speak with a flat affect about their abuse must be lying.

These biases regularly come out in courtrooms. A Canadian judge recently asked an alleged rape victim, “Why couldn’t you just keep your knees together?” The judge who sentenced Brock Turner to only six months in jail for sexually assaulting an unconscious 23-year-old woman behind a dumpster in 2016 said he worried about how a prison sentence might affect Turner, who was a successful athlete.

“Prosecutors need a jury pool trained in the reality of what sexual violence is, and then at the end of the day, they also need judges who receive this training,” said Gretchen Hunt, the head of the office of victims advocacy for the Kentucky attorney general’s office. “There’s very little work specifically being done on training judges on sexual assault as a group.”

Jurors often make their decisions based on myths they believe about victims, which are reinforced by the defense. (One of Cosby’s lawyers called Constand a “con artist” who was after his money. Another said of fellow accuser Janice Dickinson, “It sounds as though she slept with every single man on the planet.”)

Kaarin Long, an an assistant attorney in Ramsey County, Minnesota, said that having the right jurors in a trial is crucial to a case’s success but that the jury selection process doesn’t give her much control over who makes the cut. “Sometimes I get a group of 12 people who are open to hearing the evidence and the state’s point of view,” she said. “[But] I had a trial a couple of months ago where I felt like we almost had no one at all.”

Cosby’s guilty verdict can’t overhaul a legal process that’s always been set up to fail survivors. The problems are so deeply embedded in the legal system that any solutions will have to be longer term ― such as educating kids about consent and training legal experts who handle these cases. In the meantime, while it’s important to celebrate a landmark trial, it’s crucial to keep fighting for systemic changes that will have a much greater impact on the majority of victims than any high-profile sexual assault case.

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