The Bill Cosby mistrial exposes the legal system as a fraud

When last I visited the case of Bill Cosby, I labeled him a rapist because there have been so many accusations and to view him otherwise is to diminish the accounts of so many women and to privilege instead the word of a single man.[1] I have had no reason to alter this view. As Jeannie Gersen puts it,

The sheer number of Cosby accusers who have come forward, and the consistency of their descriptions of his modus operandi, are so overwhelming that they produce little doubt that Cosby used his fame and power to lure women, give them incapacitating drugs, and have sex with them without their consent. When one views Cosby and [Andrea] Constand as stand-ins in a narrative of rapists acting with impunity against powerless victims, it is tempting to consider the failure to convict Cosby as one of the highest-profile examples yet of assaulted women being disbelieved and devalued.[2]

That failure to convict cropped up with a mistrial in the one accusation against Cosby to make it to criminal trial.[3] Gersen updates the story succinctly:

During Kevin Steele’s successful election campaign for District Attorney of Montgomery County, Pennsylvania, in 2015, he attacked the longtime incumbent, Bruce Castor, for having “refused to prosecute Bill Cosby” and promised “tough sentences for sexual predators.” After taking office, District Attorney Steele immediately moved on his promise to vindicate Bill Cosby’s victims, arresting and charging Cosby for the sexual assault of Andrea Constand, one of nearly sixty women to have accused Cosby of sexual assault over several decades. But Cosby’s criminal trial, on three counts of indecent assault for the 2004 incident, ended in a mistrial due to a hung jury, after six days of deliberations produced neither conviction nor acquittal.[4]

But Gersen largely defends this failure by pointing to an adversarial legal system in which

Standards that enable criminal conviction and punishment for a specific act differ markedly from the ones that lead to personal beliefs that someone must be guilty of wrongdoing. In the midst of fifty-two hours of deliberation, the jury requested clarification of what proof “beyond a reasonable doubt” meant. The judge explained that a reasonable doubt is a real doubt that causes a juror to hesitate. In other words, if a juror were mostly or nearly convinced that a defendant was guilty, but still had some doubts that seem reasonable, the appropriate vote would be for acquittal. Apparently, some of the jurors did have such doubts, while others did not.

The extraordinarily high prosecutorial burden of proof in any criminal trial is intentionally designed to heavily favor defendants, because we long ago embraced as a society Blackstone’s principle. Formulated in the seventeen-sixties by the English jurist William Blackstone, the presumption is that it is better to have ten guilty people go free than that one innocent person suffer.[5]

Further, Gersen explains, while “rape shield” laws are supposed to preclude “a repeat of our sexist legal history of putting the victim on trial, of pointing to her sexual past or reputation, to insinuate her dishonesty,” “[i]t was the job of Cosby’s defense to attack Constand’s credibility, to try to sow reasonable doubt in the minds of the jurors about whether her account should be accepted as true.”[6]

Epistemologically, there are a couple issues here. First, ‘truth’ is always in doubt. There are several theories of truth; each and every one of them suffers serious defects that mean in some degree that we do not even know what ‘truth’ is.[7]

But worse than that, Gersen is pointing to an adversarial system in which it is an article of faith that ‘truth’ can be discovered through a contest of two competing claims about the ‘truth’ in any given case. This notion is so profoundly riddled with fallacies it merits serious attention only because it is foundational to a major institution in our society.

Most obviously, it assumes that one of two competing claims is sufficiently true as to justify a decision to impose, or not to impose, penalties of some sort. This in turn reduces truth to that which can be discovered through argument, which in turn assumes that premises and reasoning are sound. It loses context and, with our social prejudices, privileges superficial quantifiable data. Which in turn means that the legal system places great faith in the superficial.

To call that dubious is entirely too kind. But even worse, the system incorporates a series of psychological biases that skew reasoning and evidence, often against defendants.[8] It enacts invidious class and race biases[9] in service of the elite by leading the public to focus on ‘criminals’ as threats to public safety[10] rather than (and as a diversion from) the more dangerous crimes of the elite.[11]

And I haven’t even gotten to the insidious process of effectively putting rape victims on trial.

I think the problem here lies in the adversarial process itself. Rape happens to be an example that highlights its defects. As Gersen notes, the system effectively demands that defense attorneys attack victims,[12] which is to say more generally that opposing counsel are expected to traumatize victims and witnesses in the system’s alleged quest for ‘truth.’ Further, the rules of evidence and questioning too often produce a contest between opposing counsel to see who can get which rules applied. This reaches to a point I have made repeatedly about how justice does not reduce to law, and in my most recent visit to this topic,[13] how even law is subject to subjective interpretation.[14]

Fundamentally, this is a system that treats as objective that which can only be subjective in a paradigm that discounts rather than explores the subjective. In so doing, it exacerbates injuries, first through an adversarial process that is deeply unfair to all concerned, and second through incarceration, which widens the harm to convicts’ families and communities.[15]

Gersen’s task was to explain the Cosby mistrial within the context of the legal system. She accomplishes this. But in a wider view, it is apparent that her answer is no answer at all. It rather points an accusing finger at the legal system, which should properly be seen as a system of injustice.

Part of a proper answer lies in how we got to this system. It developed from a system that originally placed a great deal more weight on a wider body of ‘law,’ not just statutory law, but so-called ‘natural law’ and canon law. Canon law obviously has no place in a secular system but, also, the history of natural law exposes so-called ‘natural law’ as a social construction. In practice, it was apparent that there is no universally applicable notion of right and wrong shared among all humans in all circumstances. But it was also simply easier to point to written law and precedent and treat it as an objective basis for assessing guilt and assigning punishments,[16] when in fact it is anything but.[17]

If we don’t like how ‘reasonable doubt’ about the nature of the relationship between Cosby and Constand—Cosby’s defense succeeded in raising not proof but the possibility that Cosby’s actions were consensual—produced a mistrial, then we need to take problems of justice more seriously. We need to devote the resources to a proper exploration of causes for transgressions and we need to address those causes[18] rather than pretending that superficial findings of blame amount to ‘justice.’

That doesn’t mean a return to natural law, although the notion that there are standards of right and wrong that we should universally be held accountable to is probably inescapable. Indeed, just as much international human rights law upholds what should be universal norms, much international law on war crimes seems to rest on a premise that some actions are universally abhorrent and should be condemned in all circumstances. I would include Cosby’s actions among the latter.

But I think also that we need to look at the relationship between sex and power that simultaneously underlies power’s expression in rape, sexual assault, and sexual harassment and all too typically renders ‘powerful men’ as desirable mates.

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