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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?”

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