What It Felt Like to Attend the Cosby Trial With Six of His Accusers

This article was originally published in Vice.

I spent 13 days at the Cosby trial with a group of women who say he drugged and sexually assaulted them—which made the eventual mistrial all the more painful.

I didn’t cry at first when a mistrial was announced in the Bill Cosby case. The tears would come later, on the long plane ride home, when I was surrounded by strangers but too tired to care. I’d spent nearly two weeks watching the trial with six women who had publicly accused Cosby of sexually assaulting them. Some of them broke down in tears after the verdict, while others were stunned and silent.

Thirteen days earlier, I had arrived in the quaint town of Norristown, Pennsylvania, where the trial was held. I was there to stand in solidarity with Andrea Constand, who says Cosby drugged and sexually assaulted her in 2004, and Kelly Johnson, a witness for the prosecution and the only other Cosby accuser allowed to testify during the proceedings. (She claims Cosby drugged and sexually assaulted her in 1996.)

I was also there to support six other women who were not permitted to testify in the case: Lili Bernard, Victoria Valentino, Therese Serignese, Jewel Allison, Barbara Bowman, and Linda Kirkpatrick. Although they weren’t allowed to share their stories with the jury, these women had come to show solidarity with Constand. A “guilty” verdict in Constand’s case would represent justice for all Cosby’s accusers—at least 60 women in all.

Despite the fact that dozens of women have come forward with reports of sexual violence from Cosby, Constand is the first to see her day in criminal court. This is because hers was the only case to fall within the statute of limitations for reporting sex crimes—an unjust policy many of Cosby’s accusers have struggled with. (In fact, I first met Bernard, Kirkpatrick, and Valentino when we ran a campaign that overturned the statute of limitations on rape in California.) Survivors often wait decades to come forward because they fear that no one will believe them, and that they will face victim-blaming and harassment. In these women’s cases, this fear was heightened by Cosby’s celebrity status.

Cosby’s trial started on Monday, June 5. I rose at 6 AM and rushed to the courthouse to meet up with Bernard, Kirkpatrick, and Serignese. The air was tense but quiet as we all waited in line, sizing up our fellow attendees and guessing which side they were on. Watching the trial beside several women who had accused Cosby of raping them was an agonizing experience. During his opening statement, Cosby’s defense lawyer, Brian McMonagle, unleashed a litany of myths about sexual assault, lambasting Constand for behavior typical of victims: having multiple phone conversations with Cosby after the alleged rape (on her Temple University phone, where he was a trustee), experiencing memory lapses about inane details not related to the rape, and waiting so long to report.

The women beside me, too, had been too afraid to come forward, and had waited decades to share their stories. They knew they wouldn’t have been believed then; they may still not be believed now, as the defense team’s arguments clearly demonstrated. At one point, Bernard leaned in and whispered, “Why would any rape survivor ever go to court?” The blood had drained from her face.

The author (right of center) with several Cosby accusers. Photos courtesy of author.

The prosecution argued that Cosby’s own words would convict him: In a sworn deposition from 2005, he had explicitly admitted to obtaining Quaaludes “for young women [he] wanted to have sex with.” He also confirmed that he gave Constand the pills, that he lied to her about the pills being herbal, and that he penetrated her with his fingers. “Trust, betrayal, and the inability to consent,” said Assistant District Attorney Kristen Feden in her opening statement. “That is what this case is about.”

What followed, from the prosecution, was a sustained character assassination attempt on both Constand and Johnson. The defense effectively painted Johnson as a sexually promiscuous drug user whose word could not be trusted, despite the fact that she won an employment discrimination complaint after reporting that Cosby raped her and tried to get her fired from the William Morris agency. For Constand, the defense spun a wildly unsubstantiated tale of romance between her and Cosby. McMonagle referenced steamy fireside chats which Constand, who identifies as a lesbian, says never happened, and portrayed Cosby’s previous acts of sexual harassment—touching Constand’s leg and trying to unbutton her pants—as consensual. He even spun Constand delivering bath salts to Cosby and his wife from a friend who had just started a bath salt company as a romantic gesture. Throughout the proceeding, the defense framed Constand as immoral: “You knew he was a married man, right?”

After the prosecution closed its case, the defense did not present one. They only put one witness on the stand, a police officer who had previously testified for the prosecution, in order to introduce a document. McMonagle had a strong close with an appeal to “common sense,” again focusing on the fact that Constand was still in contact with Cosby after the rape, and that she took so long to report. However, the evidence seemed overwhelming. The women I was with were cautiously optimistic, given the damning nature of Cosby’s own words and the parallels between Johnson’s and Constand’s accounts, but I had been struggling since day one with a sinking feeling that we would not see justice.

As the days wore on, our enthusiasm and energy turned to sorrow. It was apparent that at least one juror was convinced of Cosby’s innocence. When the jury first announced that it was deadlocked, on Thursday, we funneled out of the courtroom, numb. A few of us made our way to a more private corridor where we could vent and cry without prying eyes. I thought back to the first day of the trial when we entered the courtroom with relatively innocent optimism. It felt like a year had gone by, and I was a different person: emotionally exhausted, more cynical.

Although the jury deadlocked just four days into the proceedings, their deliberations continued for several more days, after the judge asked them to continue. While there is no way to know for sure, the count appeared to be 11:1. Several interactions with one man on the jury made it seem that he was a (the?) holdout. On Wednesday, he walked into the courtroom with sunglasses on and a big smile, while most of the other jurors hung their glum heads. On Thursday, when the judge asked the foreperson if the group needed to see some records projected onto a screen, almost every head in the jury box turned to him, and he rose out of his seat halfway to respond to the question. On that same day, another juror spoke to him sharply as they filed out of the courtroom after hearing Cosby’s comments about Quaaludes (again): “Is that good enough for you?”

As the trial dragged on, Cosby supporters began to appear outside of the courthouse; starting on Wednesday, a small group of them would post up with signs that said “We Love Bill Cosby” and “Free Cosby Now,” from morning to night. Their numbers never reached more than about a dozen, and they were unusually coordinated in chants that started like clockwork at the end of the Cosby spokesperson’s evening press conferences.

Lili Bernard speaks to the press.

On Thursday, tensions boiled over: Allison and Bernard were verbally attacked by small groups of “protesters” with signs, who yelled questions about why they had waited so long to report. Both Bernard and Allison responded with unimaginable magnanimity, Bernard taking the hands of a young man and talking to him about her sons supporting her. The pitch of her voice rose as Cosby supporters talked and yelled over her, and tears streamed down her face as she addressed the crowd. “I experienced it firsthand, when he drugged me, when he raped me, when he threatened me into silence,” she said, her voice shaking with emotion. “I came home to my boyfriend at the time—who has been my husband, my one and only, since 1990—I came home drugged and sexually assaulted by Bill Cosby to him.”

I was with Bernard in the middle of the press and protester crush when the head of security tapped me on the shoulder and said it had to end. It was becoming unsafe. Bernard was still in tears as we walked down the sidewalk to the side of the courthouse. Sinking onto a bench, she wept inconsolably.

On Saturday, we were all resigned. We expected a mistrial, and weren’t surprised when it was announced that morning. Though the verdict was expected, it was still painful. Everyone reacted in their own way: weeping, silence, hugging one another, wanting to be alone. For me, this trial reinforced lessons I learned long ago: that rape culture is real, that false myths about rape trump evidence for many people, and that virtually no survivors see justice in our judicial system.

I thought back to a few days before the mistrial was declared—we had discussed the very real possibility of this outcome over a meal with civil rights lawyer Gloria Allred, who has represented several of Cosby’s accusers. As we mulled the fact that injustice is the default for rape survivors, Allison turned to the group and said, defiantly, “This sisterhood. This is the best we’re going to get. This.” I can’t help but think she’s right.

Bill Cosby’s Legal Defense was a Case Study in Rape Culture

This article was originally published in Vox 

“Why would any rape survivor ever go to court?”

A wide-eyed Lili Bernard whispered this question to me during the opening statements in Bill Cosby’s criminal trial last week. Bernard is one of the 60 women who have come forward to allege sexual violence at the hands of Cosby. She has experienced plenty of victim blaming and death threats since going public.

But what she saw at the Cosby trial was still shocking: His lawyers used nearly every rape myth in the book to go after Andrea Constand and Kelly Johnson, the two women who testified against Cosby. During opening statements, defense attorney Brian McMonagle berated Johnson for falsely accusing Cosby in order to get media attention: “Cameras! A press conference! LA! What happens next? Media tour. Pay attention. Be vigilant. Dr. Phil!”

I traveled from Los Angeles to sleepy Norristown, Pennsylvania, the day before the trial to support Constand, Johnson, and other Cosby survivors who came to see Constand’s day in court, including Bernard, Victoria Valentino, Linda Kirkpatrick, Therese Serignese, and Barbara Bowman. We meet each day at 7 am on the steps of the Montgomery County Courthouse to get trial passes so we can sit together.

I’m a politics professor at Occidental College, and I first met Bernard and other Cosby accusers two years ago when we worked together to successfully overturn the statute of limitations for prosecuting rape in California. As one of the early architects of the new campus anti-rape movement, I worked with women’s rights attorney Gloria Allred, who assisted my students in settling a Title IX lawsuit against Occidental for its handling of sexual assault. Recently, I filed a public complaint with two other women (Wendy Walsh and Perquita Burgess) against Bill O’Reilly that led to his firing.

So sitting in a courtroom where defense attorneys derided Constand and Johnson for not immediately reporting alleged sexual harassment from a man in a position of power felt personal.

The Cosby trial: rape culture 101

The Cosby trial was a lesson in rape culture 101. Rape culture is a society in which rape is common (one in five women experience sexual assault) and normalized by societal attitudes and practices. In the US, rape is tacitly condoned through denial of the rape epidemic, denial of the harms of rape, victim blaming, trivialization of rape, the normalization of female sexual objectification and rape eroticization in popular culture, and not taking rape seriously as a crime.

Rape myths are the engine that drives rape culture — widely held beliefs that are statistically unfounded. Common rape myths include the idea that people provoke rape through their actions, that you can tell if someone has been raped by the way they act afterward, that women commonly make false rape reports to seek revenge, and that waiting to report a rape means it didn’t happen.

Cosby’s defense team barely talked about the alleged rapes themselves, but instead employed every one of these rape myths against Constand and Johnson, and for good reason: They work. Nina Burrowes, a psychologist who specializes in sexual violence, has done research that finds that “in the case of rape trials there is likely to be a pre-trial prejudice that can have a significant influence on verdicts.”

Survivor activist and attorney Kamilah Willingham told me, “These myths and the norms they evoke are employed routinely to discredit sexual assault survivors. Rapists’ defense attorneys know they can rely on juries’ susceptibility to these unexamined myths, and more often than not, they are successful.”

Instead of presenting evidence to counter the prosecution’s case, Cosby’s attorneys built their case around myths to discredit and dehumanize Constand and Johnson. With manipulatively pointed questions, Cosby’s defense portrayed Johnson as an attention-seeking, sexually promiscuous drug user whose real issue was a poor work ethic at the William Morris Agency. In reality, Johnson experienced employment discrimination, alleged sexual harassment from a client, and alleged sexual violence from a client.

According to the testimony of Johnson and her mother, Cosby called Johnson’s boss after the alleged rape and tried to get her fired, so Johnson filed an employment discrimination complaint, and she won. Every professional woman can relate to some part of Johnson’s story, but the defense insinuated that putting up with sexual harassment somehow means that sexual assault is consensual.

For Constand, the defense spun a wildly unsubstantiated tale of romance to frame the alleged rape as consensual (as though people in relationships can’t be raped!). Constand, a gay woman, maintains she was never romantically interested in or involved with Cosby, a man 36 years her senior. She testified that Cosby had touched her leg on one occasion and tried to unbutton her pants on another occasion. She said she abruptly left after the first incident and intentionally leaned forward to interrupt the second incident. The defense spun these incidents as romantic encounters, and implied that the alleged rape was just the latest chapter in a budding romance.

Things that make rape not rape, according to Bill Cosby’s defense team

In closing arguments, McMonagle laid out the defense’s rape myth strategy all at once. I furiously scribbled down the various things that make rape not rape, according to Cosby’s defense team:

  • Accepting an invitation to a gated home.
  • Being in a romantic relationship.
  • Talking to your rapist after he rapes you.
  • Changing your appearance at your rapist’s request. (Cosby was working with Constand on a sports broadcasting career and asked her to straighten her hair for head shots, which she did.)
  • Seeking help from a “women’s rights” attorney that specializes in sexual assault cases.
  • Being flown out to Los Angeles for a press conference to publicly discuss your rape.
  • Agreeing to take a pill that incapacitates you. (Constand testified that Cosby lied and told her the pills he gave her were “herbal.” Johnson testified that Cosby pressured her to take the pills. But even if the pills were taken with full knowledge of their effect — i.e., passing out — it is still illegal to have sex with an incapacitated person.)
  • If your rapist previously sexually violated you.

At one point during the closing, McMonagle turned and gestured at our little group of Cosby accusers (who did not testify in the trial) and scornfully said, “You know why we’re here. Let’s be real.” He was implying that the trail wasn’t about new evidence in the case, but rather women on a witch hunt to take down a celebrity with the help of the media. He also excoriated Constand and Johnson, claiming they falsely accused Cosby: “They made this case something horrible.”

McMonagle hit his crescendo when, referring to Constand, he announced flat out that “she’s a liar.”

As a survivor, it was heartbreaking to see rape culture on display in such an unrepentant way. We have made some progress as a culture in the past few years when it comes to addressing sexual violence, but in that courtroom it was the 1950s. It appeared as though the defense was going through a rape myth checklist, trying desperately to bring juror biases to the surface.

Character assassination of public rape survivors has a chilling effect for all survivors

Some of the jurors were nodding along with McMonagle’s closing statement. He performed the role of gritty but friendly dude who is just trying to see a good guy get some justice. His self-effacing demeanor and appeals to “common sense” were punctuated by vicious rape myths and emphatic claims that the trial is a complete sham: “What are we doing here?!!”

Willingham says, “The upshot of rape myths like those Cosby’s defense relies on is that in order to be believable, a rape victim must embody our culture’s purest version of normative womanhood: white, guardedly chaste, heterosexual, and, most importantly, silent.” The obligatory character assassination of public rape survivors has a chilling effect for all survivors.

I am grateful that the Cosby trial was not televised. I am grateful that young eyes were not able to see this enactment of rape culture in real time; that survivors were not privy to the blow-by-blow of rape myths.

The Cosby trial once again reveals that when it comes to justice for sexual assault survivors, our justice system is part of the problem. It is telling that Johnson’s father, a police officer, discouraged her from reporting what happened with Cosby two decades ago because he had seen how rape survivors are treated. Public survivors face many challenges: statutes of limitations on reporting sex crimes; victim blaming, shaming, and death threats; the common use of the rape myth defense at trial. After two decades of work on this issue, I increasingly believe in the power of media justice when legal justice is illusive.

Near the end of McMonagle’s closing, he bowed his head and said, “It’s sickening what happened here.” Indeed it is, sir.

“Why would any rape survivor ever go to court?”

The 2016 Election: Sexism and the Failure of Men on the Left

On Tuesday night, Donald Trump beat Hillary Clinton to become our 45th President. Trump won in the Electoral College and Clinton won the popular vote by a significant margin. Turnout was just shy of 130 million voters—almost identical to 2012— so Trump won despite a weak ground game and Clinton being heavily favored in state and national polls.

What the heck happened?

The short answer is that the polls were off because they assumed the Obama Coalition, the force of people of color/women, would more or less hold for Clinton. The Coalition did hold together for Democratic women but not men, which means that the polls were way off due to unexpected gender bias on the Left.

Context

Gender scholars in political science have long identified a strong bias against female candidates due to the masculinity the office embodies and gender biases in media coverage that diminish female candidates such as more negative coverage, a focus on dress and appearance, and outright sexism. Clinton’s bid was the tenth time a woman ran for the office, and she was faced the same gender bias in media coverage as the previous nine, with the added layers of hyper-sexist new media and social media. Furthermore, because leadership is defined as masculine, female presidential candidates face a double-bind where if they follow the norms of leadership, they are seen as too aggressive, but if they act in ways that are expected of women, they are seen as weak, incompetent leaders.

It is no wonder, then, that 7% of Americans say they will not vote for a female presidential candidate, and 26% are “angry or upset” at the idea of a woman in the White House. Some Americans genuinely fear a female president.

Clinton faced some world class sexism in this election, but it was ignored by many on the Left because we tend to see sexism as being less prevalent or less important than other systems of oppression. But we don’t live in a post-sexist society, and much of the public dialogue about Clinton has been explicitly and implicitly sexist, starting with the primary.

Public dialogue about Clinton has been so sexist that many only see her as a caricature— a corrupt, conniving, shrill villain, instead of the staid person and candidate she is. The double standard is highlighted when we imagine the short life the faux email “scandal” would have had if Joe Biden were running, or how unsuitable a Clinton candidacy would be were she with her third husband; a husband who had violated U.S. immigration laws; on whom she had cheated; had she refused to release her tax returns; had 13 allegations of sexual assault; and joked that she likes to grab men by the dick without their consent. This election was anything but a fair race.

Given what we know about gender bias and the presidency, it is empirically absurd to project outcomes without taking latent sexism into account, which is what pollsters did. It is also absurd to talk about the outcome of an election with the first female candidate without discussing gender, which many analysts are now doing.

The Data

When it comes to gender, most women identify as Democrats, and this year saw the largest gender gap in history with a 12-point advantage for Clinton (see table below).

chart-1

When it comes to race and gender, a majority of white women voted for Trump, while most women of color voted for Clinton (see table below).

chart-2

This snapshot data, which many have reported on, is highly misleading when it comes to understanding what happened in the 2016 election. White women did not cause the election upset. They did not abandon Clinton. She actually succeeded in winning the vote of more white women – a 1% increase over 2012 (see table below). I am heartened that so many journalists have woken up to the fact that a majority of white women vote Republican for a variety of reasons (e.g., racism), but pollsters knew this and accounted for it in their projections.

This table does reveal an obvious pattern that explains the upset. With the exception of Latinas, women held their numbers in the Obama Coalition, while men in the Coalition broke to vote for Trump and third party candidates in surprising numbers. Overall, men’s support for the Democratic candidate dropped from 45% in 2012 to 41% in 2016, while women’s support held firm overall.

 Percentage of the Vote for the Democratic Candidate: 2012, 2016

2012 2016
White Men 35% 31%
White Women 42% 43%
Black Men 87% 80%
Black Women 96% 94%
Latino Men 65% 62%
Latino Women 76% 68%
Others 66% 61%

A 4% drop in support from men on the Left is significant. We are still waiting on state-by-state voter demographic information, but had men voted for Clinton in the same numbers as they voted for Obama in 2012 in key swing states, she would have won the election.

Other Factors

Other factors came into play in the election as well. We know that while voter suppression in the form of ID laws and a reduction in polling places demobilized votes on the Left. But experts disagree about whether it was enough to account for Clinton’s loss.

Racism accounts for Trump’s candidacy. Trump rose to political prominence hocking the racist birther lie. He is the answer to 8 years of a Black presidency. We know this from his rhetoric (he hasn’t been shy about it), the racism he encouraged at his rallies, and his appointment of alt-right hero Steve Bannon as his chief strategist. Research on Trump’s supporters finds that racial resentment, not economic anxiety, is the driver. Exit polls show that Trump voters were older, white, and well-off, and their primary concern was the deportation of immigrants.

But racism doesn’t explain the election upset in terms of numbers because it played a predictable, predicted role in the election. Trump’s support with whites looks similar to Romney’s support from this group in 2012.

chart3

A factor that did contribute to the upset is third party voting, but it is also likely a reflection of deep-seated gender bias. Nearly three times as many people voted third party in 2016 compared to 2012 (6.9 million compared to 2.4 million). This pattern only makes sense if there was a particularly charismatic third party candidate (there wasn’t) or both major party candidates were seen as equally awful. Throughout the campaign, Clinton and Trump were framed with false equivalency, aided by false balance in the press that simply would not have worked if Clinton were a man. Many Americans unconsciously dislike ambitious women, so it was easy to hyperbolically paint Clinton as a villain for mundane political trespasses.

Eleven days prior to the election, FBI Director James Comey reignited fears about Clinton’s emails with a bafflingly vague letter to Congress that possibly affected the outcome. Comey admitted there was nothing to the “scandal” two days prior to the election, but as Trump campaign manager Kellyanne Conway noted, “the damage is done.” Clinton’s polls dropped precipitously in the final week, and while we can’t know for sure whether the 13% of voters who were undecided the week before the election were influenced by the Comey letter, most of them broke for Trump. The margin of late deciders for Trump was especially large in the key states of Wisconsin, Minnesota, and Florida.

chart-4

As noted above, the Clinton email story is not a real scandal, but it sustained the gendered #CrookedHillary frame that dominated the way we think about the first women in a general presidential election. It was easy for many to buy into the Hillary hype about corruption because Americans have always seen ambitious women as corrupt, vile, unhealthy, and villainous.

 Next Time

I’ve had a knot in my stomach for over a year about Clinton. I didn’t dare believe she would make it past the primary because we’ve been here before. I  had  even published a book about the impossibility of a female presidency that predicted Clinton’s loss in 2008. I started trusting the polls in the general election because they were so positive and her opponent was/is a buffoon. I knew better than to entirely trust them because pollsters generally underestimate sexism, so I halved the margins, which were still enough pre-Comey’s October Surprise.

I trusted the polls through #Shrillary, #Killary, smile more, smile less, a “horse on her way to the glue factory,” Clinton using the bathroom is “gross,” she doesn’t have the stamina, she doesn’t look “presidential,” “when she walked in front of me, believe me I was not impressed,” “bitch,” “whore,” “lock her up,” “nasty woman,” “kill the bitch.”

I trusted the polls because I believed that men on the Left were with us in this struggle, but in the end, too many left us to vote for a racist, sexist, xenophobic, hyper-masculine demagogue. This was not a victory on the Right, but a failure of the Left.

In the future, when the stars align and we get a female candidate who is the most qualified candidate in history with remarkably high name recognition, she will face the same tired sexism that upset this election. We need to remember that every woman who runs for the presidency becomes a villain.