The entertainer’s 3-10 year sentence may empower more women to report assaults, but there’s still a long way to go before sexual predators are deterred by the threat of serious prosecution, says a former sex crimes prosecutor. One place to start: an annual “Report Card” from local DA’s about how they dealt with cases of rape and sexual abuse.
The sight of Bill Cosby being escorted from court in handcuffs to begin serving a three-to-ten year prison sentence didn’t make me smile, but it did give me a sense of hope that justice is possible for women in America.
Cosby spent decades brutally violating women’s bodies, and ruining their careers if they dared complain about his sexual demands. Now he looked downtrodden, and dejected, though not ashamed. His feelings about going to prison probably match the feelings his victims had when they woke up from a drugged stupor, in pain from neck to knee, coming face to face with a smirking Cosby, who sent them away like yesterday’s trash.
Cosby, like Judge Brett Kavanaugh during last week’s hearings, seemed incredulous that the word of a credible woman, without corroboration, should be enough to hold a man accountable.
Here’s a newsflash: the requirement of corroboration was abolished decades ago on the grounds that it was sexist, and unjustly prevented prosecution of rape cases. Nonetheless, prosecutors retain discretion to refuse to file charges for any reason, and they often do, especially if the offender is a man of influence.
Thus, if Andrea Constand had been Cosby’s only victim, he would not be in prison because, despite abolition of the corroboration rule, prosecutors, police and, more importantly, jurors, are permitted to discriminate against women. Simply put, the culture of our legal system makes clear to victims that if the only evidence they have against a man is their word, they should stay silent.
Colleges contribute to this sick mindset by treating women as second-class campus citizens when they report sexual assault.
Most schools have policies that subject sex discrimination, including sexual assault, to arduous investigations and unfair hearings that drag on for months and favor offenders, while harms based on race and national origin are resolved in a matter of days, without protracted investigations, and without anyone complaining that the offender needs more “due process.”
Title IX and Title IV of the Civil Rights Act mandate that sex-based harms be subjected to exactly the same gold standard treatment as harms based on race and national origin, but most schools mistreat women anyway, and point to Education Secretary Betsy DeVos as giving them authority to do so. A landmark lawsuit against DeVos was filed a year ago in federal court in Boston, asking the court to rule that schools must treat sex-based harms exactly the same as race-based harms, and that DeVos has no authority to discriminate against women, or permit schools to subject women to second-class treatment.
College women don’t complain about second-class treatment because they don’t see it. Like women in the “real” world, they accept second-class treatment as normal, often because groups claiming to be “advocates” for victims and proponents of Title IX tell them, falsely, that schools and prosecutors are following the law when they treat women poorly.
Is it any wonder most women never report sexual violence, on campus or in larger society, and that only two percent of rapists spend even one day behind bars; a number that hasn’t changed in decades?
According to the majority staff report of the Senate Judiciary Committee, The Response to Rape: Detours on the Road to Equal Justice, 28 (1993), only two percent of rapists see even one day behind bars. Additional confirmation of this figure comes from Reporting Rates, produced by the Rape, Abuse & Incest National Network, which also points out that the majority of reported rapes are never prosecuted.
Despite the fact that schools and law enforcement officials too normalize male supremacy by refusing to take action against an offender, Stanford’s Brock Turner and Bill Cosby have been held to account, to some extent. Three months was a woefully inadequate punishment for Brock Turner, and three years (minimum) in prison is not nearly enough for Bill Cosby, but both punishments are much longer than the sentences typically handed out in similar cases against men of similar social status.
Indeed, privileged males at elite universities rarely suffer any campus-based sanctions, much less criminal charges and incarceration. Brock Turner went to jail only because he was caught in the act by two eyewitnesses who were not his buddies, and thus not willing to lie for him. And Bill Cosby went to prison because, although he is a man of significant privilege, he had so many victims.
Both men also got in trouble because their victims were drugged, a factor that helped make it politically impossible for public officials to do nothing.
Most victims don’t realize they were drugged; they think they had too much to drink because they don’t know what being drugged feels like. And they don’t call police because the drugs cause amnesia, so they often cannot recall the details of what happened. Moreover, rape laws and campus rules are vague about what constitutes an offense when a victim is incapacitated.
In Pennsylvania for example, where Cosby was prosecuted, “incapacitation” means the victim must be completely unconscious. Another law requires proof that the perpetrator secretly caused the victim to consume the drugs. In other words, in Pennsylvania, offenders have legal permission to rape incapacitated persons, so long as there’s no proof the offender secretly drugged the victim, and she isn’t totally unconscious.
Bill Cosby’s trial helped teach the public about the prevalence and effect of rape drugs, while the Brock Turner case managed to hide the fact that the victim was so heavily drugged, she remained unconscious for hours after police brought her to the hospital.
Drugging victims is a convenient tactic that often enables an offender to avoid accountability simply because the victim cannot recall what happened. By the time she realizes she was drugged, the substances have dissipated from blood and urine. Few victims are informed by school or by law enforcement officials that drugging can still be proved by behavioral evidence, and by testing the victim’s hair. Rape drugs never dissipate from hair, and the latest technology can reveal with a high degree of certainty when the drugs entered the victim’s body.
While Cosby and Turner were sentenced to incarceration, other men of influence, such as Les Moonves, Charlie Rose, and Matt Lauer, merely lost their jobs, or faced civil suits. Justice for most women in the form of criminal prosecution has been elusive, with Harvey Weinstein being a notable exception.
Weinstein has been charged, and may well face incarceration when his case goes to trial, but as with Cosby, the pile of victims had to grow very high before the District Attorney paid attention.
This is unacceptable, blatant sex discrimination. One victim is enough.
The criminal courtroom is the people’s courtroom, and when violence against women does not receive its fair share of criminal justice resources, the violence gets worse and the public is denied access to truthful information about the extent of the problem, and the suffering women endure.
Notwithstanding the insidious mistreatment of victimized women in our criminal justice system, Bill Cosby’s incarceration is a cultural turning point, and a byproduct of many factors, including the #MeToo movement. #MeToo has provided a space for women to be heard when responsible officials and school administrators aren’t listening.
Led by an organic groundswell of anger, women have come together like never before around the issue of gender-based violence, and the public is finally starting to understand that a sexual assault against one woman is a sexual assault against all women.
Women have also begun to understand the importance of becoming politically active around the election of District Attorneys. Kevin Steele, the Montgomery County (Pa.,) prosecutor who filed charges against Cosby, ran his campaign on a promise to prosecute Cosby if elected. His incumbent/opponent refused.
Women need to elect prosecutors who value their lives, voices, and autonomous authority over their bodies. Too often prosecutors refuse to file charges out of fear that jurors will find reasonable doubt based on discriminatory ideas about a victim’s behavior or credibility. District Attorney Steele boldly confronted these systemic biases, rather than indulging them, and prosecuted Cosby without fear that jurors might judge Andrea Constand unfairly.
This is how all prosecutors should conduct themselves, but women need to hold them accountable.
For example, women can demand that candidates for District Attorney agree to release annual “Violence Against Women Report Cards,” showing how many rape and domestic abuse cases were reported to police and prosecutors; how many were declined for prosecution, and what happened to the cases that were filed, in terms of charges, convictions, and punishments.
Too often prosecutors reveal only the percentage of cases they won, rather than how many cases they accepted and rejected for prosecution. So a District Attorney who says he won 90 percent of his rape cases is actually hurting women if he prosecuted only ten cases, and refused to file charges in 800 more. And what does he mean when he says he “won” a case? If a prosecutor agrees to a plea-bargain and allows a rapist to plead guilty to simple assault and battery, that is a loss, not a win. Unless all the data on violence against women is revealed in an annual Report Card, women have no way of holding prosecutors (and judges) accountable for unequal justice.
Women have been oppressed for a very — long — time, and although Bill Cosby’s conviction will inspire more women to report rape, their reports will fall on deaf ears unless they demand equal access to justice, and equal treatment under the law. Prosecutors must no longer get away with citing tired excuses about the case not being “strong enough” to prove the charges beyond a reasonable doubt.
Victims are entitled to their day in court. Let a jury determine the evidence. Among other benefits, this will help “teach” jurors, hence the public, that all violence against women matters, and all women will be heard.
With prosecutors focused on justice rather than winning, more offenders will start to worry about being held accountable. That men do not expect to be held accountable is derived from male supremacy in the U.S. Constitution, which long ago declared women second-class citizens. The resulting sense of male entitlement is correlated with high rates of sexual assault.
Simply put, the space between equality and inequality is where violence happens with impunity under the law.
When he sentenced Cosby, Judge Steven O’Neill said, “No one is above the law, and no one should be treated differently.”
He was talking about Cosby, but he should have talked about women, and the violence they suffer because they are female. Judge O’Neill should have pointed out that women endure very high rates of abuse because the 14th Amendment’s equal protection clause does not equally protect them, on par with men. To the contrary, women’s constitutionally mandated inferiority allows federal and state officials to discriminate on the basis of sex when they enact laws, enforce (or not) laws, and interpret laws in the courts.
The Equal Rights Amendment (ERA), which aims to repair the problem by establishing women’s equality in the Constitution, was passed by Congress in 1972, but was never ratified by the necessary 38 states. Nevada ratified ERA in 2017, and Illinois ratified earlier this year, making it the 37th state.
This means America is only one state away from full equality for women for the first time in history.
With unprecedented energy now driving the national conversation about violence against women, all people who care about the issue should mobilize and focus on ratification of the ERA because equality, not hashtags, will stop the violence.
And, not for nothing, karma would have a whole new meaning if the ERA made its way into the Constitution before Bill Cosby made his way out of prison.
Further Reading: Amid Kavanaugh Furor, Devos Ponders College Sex Rules
Wendy Murphy is a former sex crimes prosecutor and professor of sexual violence law at New England Law|Boston, where she also directs the Women’s and Children’s Advocacy Project. Follow her at @WMurphyLaw. Readers’ comments are welcome.