Bill Cosby Jury Deadlocked, Because 12 People Can't Actually Agree On What Rape Is
We can't get 12 people to agree on consent, which is why we fail.
Bill Cosby (Photo by Spencer Platt/Getty)
What’s amazing about the Bill Cosby trial is that it’s not really a “he said, she said” situation. 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.
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He and she both don’t dispute that this happened. And yet, a jury of 12 people told a judge this afternoon that after nearly a week of deliberations, they couldn’t unanimously agree about whether these facts constitute sexual assault. The judge ordered them to keep arguing, but I somehow doubt the outcome is likely to change. That’s because we live in a country where you can’t grab 12 people off the street and have them agree that giving a woman drugs, not telling her their effects, and then putting your hands down her pants without express consent is “assault.”
That, my friends, is “rape culture.” It’s not that all men rape, it’s not that every attempt at cajoling your way into sex constitutes rape, it’s that we can’t get 12 people to agree that sticking your hands down a woman’s pants requires express — and preferably drug-free — consent. Cosby’s defense, which has involved zero exculpatory evidence but a ton of she-was-asking-for-it innuendo, has been designed to take advantage of rape culture to exonerate Cosby. But the key problem is not exactly in victim-blaming defense techniques, but in the simple fact that we cannot seem to agree on what rape is.
Which is disgusting. People act like rape and sexual assault involve overruling rejection, often forcibly. Which it clearly does. But it also involves failure to achieve mutual informed consent. And people act like that’s some mysterious grey area when it is NOT, unless you are being illegally obtuse.
And look, I am not sitting here saying that every time a woman claims “rape” she has to be reflexively believed. I’m a father or two boys who will (hopefully) grow up to be black men. Like my parents before me, I am terrified for them, and the pitfalls that might await them once they become sexually active. But my parents combated the potentially devastating effects of a false rape accusation brought by, say, a merely regretful white girl, by simply teaching me how to NOT RAPE PEOPLE!
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My parents drilled the concept of “consent” into me: informed consent, EXPRESS consent, SOBER consent. We didn’t even use the word “consent” much in my house, because it carries a connotation of “letting” something happen as opposed to actively seeking out the thing to happen. TACIT consent, I was told, was a concept that could be applied to the erection of governments, not penises. Instead, I was to seek “invitations.” “You’re having a party in your pants and I’m invited? Wonderful! What should I bring? Condoms? NO PROBLEM. Thanks for thinking of me!”
I was taught to not believe in the concept of a woman who plays “hard to get.” Hard to get = does not want to f**k me that night. ACCEPT HER DECISION and move the hell on.
Some of these concepts were hard to understand as a pubescent teenager when my parents were putting in the work. But when I eventually (finally, thankfully, I still remember you, girl) found a woman that WANTED TO BANG ME, everything kind of slipped into place (no pun intended).
My training does not inoculate me against a false rape accusation. Just as importantly, my training does not mean that I can’t rape a person. I haven’t, but just because a person says “yes” in front of all your friends doesn’t mean she’s still saying yes at the crucial moment. My final stratagem is the relatively unheralded concept of trying to only have sex with people I care about who also care about me. You’ll leave some sex on the table, as it were, if you do that, but overall it’s worked out well for me.
Can I prove that Bill Cosby did not meet my — or any other halfway decent — standard of not raping people? Of course. HE’S SAID HE DID NOT. In his deposition he revealed that he believes that there is some magical place between “rejection” and “permission.” And, it would seem, that he thinks in that weird area, WHICH DOESN’T EXIST, that’s when it’s okay to bring out the pills. That’s not an “invitation.” That’s assault, to my mind at least.
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Is my standard the legal standard? Is my standard the cultural standard? It should be. The fact that we can’t reliably get 12 people to agree on some basic concepts of consent is why decent people lose the game. Tarring and maligning the victim is just the shouting.
Jurors in Bill Cosby’s trial say they are deadlocked [CNN]
Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.
