The jury in the Bill Cosby case is deadlocked after 5 days of deliberation. This means that 12 people seriously cannot bring themselves to say that Cosby sexually assaulted Andrea Constand—even though he has admitted that he drugged her, put his hands down her pants, was intimate with her and that she did not agree to any of these things. This is truly frightening. It means that not only do we, as a society, have a problem separating out our own fantasies from reality about “America’s Dad” but that we also think that sex and rape are interchangeable. Both have incredibly important implications for the future and for how talk about what constitutes consent.
Obviously, the victim says that she was assaulted and Cosby says that it was consensual, but the facts aren’t really in dispute. Think about it this way:
- Andrea Constand came over to Bill Cosby’s house. Undisputed.
- Andrea Constand did not say “Bill Cosby, I’d like to have sex with you now.” Undisputed.
- Bill Cosby gave Andrea Constand drugs, and didn’t tell her what they were. Undisputed.
- Bill Cosby put his hand down her pants. Undisputed.
He and she both don’t dispute that this happened.
What exactly is hard about this? How is it that a woman’s right to say no, or better yet, her right to say yes is so confusing to people? Apparently, members of the jury finds this so difficult, so mind-boggling that they need the judge to clarify what reasonable doubt is.
[The judge said] the prosecution does not have to prove its case beyond all doubt to a point of absolute certainty.
A reasonable doubt, he said, is one that causes a juror to hesitate, but it must be real.
The standard jury instructions used by the Pennsylvania courts say, “To find the defendant guilty beyond a reasonable doubt, you must be convinced of his guilt to the same degree you would be convinced about a matter of importance in your own life in which you would act with confidence and without restraint or hesitation.”
Let’s combine this with the other question the jury had, which is about Cosby’s deposition from 2005 in which he admits getting quaaludes to have sex with women. They asked to be re-read parts of his testimony. In the deposition, he admits to giving Constand drugs (Benadryl) and telling her that he has three “friends” that will make her relax. He also admits that he does not ask for her permission to touch her.
Q: So, you’re not telling us that you verbally asked her for permission?
A: I didn’t say it verbally, I said. The action is my hand on her midriff, which is skin. I’m not lifting any clothing up. This is, I don’t remember fully what it is, but it’s there and I can feel. I got her skin and it’s just above the hand and it’s just above where you can go under the pants.
Q: Then what happens?
A: I don’t hear her say anything. And I don’t feel her say anything. And so I continue and I go into the area that is somewhere between permission and rejection. I am not stopped.
After unknowingly being given pills of Benadryl, how could anyone expect her to have been coherent at all? Not only does it sound like he wasn’t stopped, it sounds as if, by his own admission, she was completely unresponsive. This is not consensual. Having sexual contact with someone who is unable to speak or respond is rape. Why is this even a point that is up for discussion? Is this really what we want to teach our children about sex? Rape is rape. It does not matter what kind of relationship the victim had with the offender prior. It doesn’t even matter if they are married. If someone is forced into sex, says no or isn’t able to say yes, that is wrong. It is a huge problem that we still think women’s bodies aren’t their own and that permission and consent are optional. Bill Cosby may be a hero of ours for the many laughs he gave us over the decades. But this is not a joke. By his own words, he is a rapist. The jury should have found him guilty as soon as the trial was over.