On April 26, a jury in Norristown, Pennsylvania returned a verdict of guilty against comedian and actor Bill Cosby on three counts of aggravated indecent assault. His conviction relates to an accusation that in 2004 he sexually assaulted a Temple University employee at his home while she was under the influence of a sedative.
Substantial evidence to support a verdict of guilty was presented at the trial. At the same time, the manner in which the trial was conducted raises serious legal questions that will doubtless be the subject of a lengthy appeal process.
However, it is necessary at the outset to distinguish between the question of Cosby’s individual guilt and the anti-democratic campaign that is being waged in the media around his conviction.
Led by the New York Times and the Washington Post, the verdict has been the subject of vindictive celebrations involving the major newspapers and television news outlets. Cosby’s conviction has been proclaimed a victory in the months-long #MeToo witch hunt against alleged sexual harassment, in which the careers and lives of scores of prominent artists, entertainers, television personalities and politicians have been ruined on the basis of unsubstantiated and often anonymous allegations in the media. Many of these allegations involve situations that would not provide adequate foundation for a criminal prosecution.
One of the most fundamentally illegitimate aspects of the ongoing media campaign is the attempt to amalgamate Cosby with the past and future targets of the #MeToo campaign, as though the conviction of Cosby in some way establishes the guilt of Geoffrey Rush, James Levine, Aziz Ansari, Kevin Spacey, Dustin Hoffman, Garrison Keillor, Tavis Smiley and many others. On the contrary, Cosby’s conviction does not prove anything as to the allegations against these other figures, all of whom have been targeted and humiliated in the media without a trial.
The central argument that is being advanced in the aftermath of the trial is that Cosby’s conviction should be seen as some sort of legal precedent, establishing henceforth that allegations and accusations made by women be given greater weight by juries than male defendants’ claims of innocence. In other words, in cases involving charges of sexual assault, the trial opens with the defendant confronting a presumption of guilt.
In a front-page lead article on Friday, the Times declared: “Mr. Cosby’s case was the first [i.e., only] high-profile sexual assault trial to unfold in the aftermath of the #MeToo movement and many considered the verdict a watershed moment, one that reflected that, going forward, the accounts of female accusers may be afforded greater weight and credibility by jurors.”
Developing this argument, the Times carried in its Saturday edition an op-ed piece by Deborah Tuerkheimer, a law professor at Northwestern University, which asserts: “While not all allegations are true, of course, starting from a position of not believing women who allege sexual assault reflects a widely held set of misconceptions and biases. The defense in the Cosby trial revived many of those tired tropes of lying women, but this time, the jury rejected them. This suggests that we are recalibrating our judgments about who to believe.”
Tuerkheimer’s article, titled “The Cosby Jury Finally Believes the Women,” testifies to the erosion of democratic consciousness among substantial sections of middle-class academics influenced by identity politics. Her line of argumentation inevitably undermines the defendant’s right to the presumption of innocence. Moreover, the entire approach runs counter to essential democratic legal conceptions governing a criminal prosecution. The issue confronting a jury is not whether it should, as a general principle, believe women rather than men, or vice versa.
A criminal prosecution is not a contest between a man and a woman, a sort of war of the sexes that is being waged in a courtroom. In a criminal proceeding, the charges against a defendant are brought by the state, not by the accuser. The task of the prosecution is to erode and overcome the presumption of innocence and persuade the jury, through the presentation of evidence, that the charges are proven beyond a reasonable doubt. The jury is not to assume, prior to hearing and evaluating all the evidence presented at trial, that testimony given by a woman alleging assault is probably true or, for that matter, probably false. A juror who claims that he or she has already decided whom to believe before the presentation of evidence is likely to be removed from the case.
For its part, the Washington Post celebrated the “shift towards believing women.” The newspaper noted with satisfaction that that many states have, as a result of the campaign around the Cosby case, abolished or extended their statutes of limitations regarding sexual crimes. However, the Post complained, “many have not,” and there are “continuing challenges of holding alleged abusers accountable.”
These demands are essentially reactionary in character: more prosecutions, more favorable laws for prosecutors, fewer safeguards for the accused, and a renewed escalation of the #MeToo hysteria.
Cosby, who is now 80 years old, was facing criminal prosecution well before the #MeToo campaign was launched in the media. As many as 50 women have alleged that he assaulted them while they were under the influence of sedatives he gave them. Most of these alleged incidents took place in the 1960s, 1970s and 1980s.
His conviction relates to the sole allegation that fell within the applicable statute of limitations, which prevents prosecutions from being initiated more than a certain number of years after the alleged event. When the case against him went to trial in the summer of last year, the jurors were unable to reach the unanimous agreement required for a conviction.
Between the first and second trials, the judge made a significant change in the evidence he would allow to be presented, to the detriment of the defense, by allowing five additional accusers to testify against Cosby instead of just one. This ruling suggests that since the evidence was not sufficient to persuade the entire jury in the first trial, it was necessary to move the goalposts.
A Times headline announced the case as a “turning point.” Without wasting any time, the NBC “Today” program announced the following morning that a former NBC news personality has accused former “NBC Nightly News” anchor Tom Brokaw of sexual harassment in the 1990s. The program showed a clip of the accuser alleging that on two occasions Brokaw came to her apartment uninvited and tried to kiss her.
The campaign being waged by the American media is not connected with anything that can be described as progressive. Instead, it can be situated in a long line of American moral and sexual crusades, including attempts to whip up hysteria over “superpredators” in the 1990s and “satanic ritual abuse” in the 1980s, which likewise were accompanied by right-wing demands for law and order.
While moral crusades in American politics have often been led by Christian fundamentalists and the Republican Party, the #MeToo campaign is different in this respect. Headquartered in the Democratic Party and the New York Times, the #MeToo campaign has its base of support in the Hollywood elite, sections of the middle class, and virtually all of the pseudo-left organizations that orbit the Democratic Party and promote the politics of race, gender and sexual orientation.
Whatever the sentiments of individuals who have been caught up in it, the function of this campaign is to degrade and obstruct political discourse, create an atmosphere of fear and repression, undermine democratic norms such as due process and the presumption of innocence, and build a base of support for the right-wing policies of the Democratic Party.