Cosby case rips open wounds that just won't heal. Here's why.
Bill Cosby is a free man.
His longtime on-camera wife, Phylicia Rashad, tweeted that “a miscarriage of justice [was] corrected.” Her tweet followed a high court decision that overturned his sexual assault conviction in late June.
#MeToo founder Tarana Burke spoke directly to survivors soon afterward on Twitter and in a segment of Good Morning America on July 1, reiterating that their healing "isn’t determined by a conviction or a prison sentence.”
And,former television Judge Joe Brown said “law separates us from animals” after repeatedly mentioning that Cosby’s due process rights were violated on a video segment with Marc Lamont Hill. Their heated discussion on the evening of July 1 was viewed over 600,000 times and collected 20,000 comments.
Their reactions joined the flurry of debates and outcries on social media, television, radio programs and within social circles. It's the latest twist in a yearslong saga that has laid bare emotional triggers and fault lines entangled with law, emotions and facts. Among the frictions: the benefits of power and platform to navigate a system that has historically impacted Black men disproportionately, and other judicial lapses that selectively help some and hurt others, including survivors of sexual assault. In essence, there is direct conflict between the two most dominant social movements of the past few years: MeToo and justice system reform.
In the eyes of the law, prosecutors were held accountable for the handling of Cosby's case, but in the eyes of onlookers, commenters and more — he’s still a sexual predator.
'If the system is broken for one person, it is broken for everyone.'
Cosby was convicted in 2018 of drugging and molesting Andrea Constand. He was serving a three- to 10-year sentence at a state prison near Philadelphia but had vowed to serve all 10 years rather than acknowledge any remorse over the 2004 encounter with the Temple University employee at his suburban estate.
The Supreme Court of Pennsylvania overturned his sexual assault conviction on June 30 because of a "procedural issue that is irrelevant to the facts of the crime," Kevin Steele, the Montgomery County district attorney who convicted Cosby, said in a statement to USA TODAY.
Ayesha Bell Hardaway would be remiss to call the Cosby trial violation a technicality.
But it was unique.
“The rules of engagement for litigators are critical — and are what we are taught to believe can significantly impact the outcome of a case,” said the assistant professor of law and director of the Criminal Defense Clinic at Case Western Reserve University School of Law in Cleveland. Hardaway is also co-director of the Social Justice Institute and director of the Social Justice Law Center.
Historic realities seep from the case, Hardaway said.
In regard to people of color, specifically Black men, who have long been disproportionally impacted by the judicial system, these rules of engagement are “designed specifically to stack up against the possibility of them having a fair trial,” she said.
But cases like Cosby’s — a powerful, wealthy Black man — do not match the typical experience of Black people in the criminal justice system. Think Walter McMillian, Robert McClendon, Ricky Jackson, and Laurese Glover, who collectively served over 80 years behind bars for crimes they did not commit. They were all exonerated years after the fact.
As for Cosby, “the remedy in this case came from the Supreme Court of Pennsylvania,” Hardaway said. “It did not come at the trial-court level. It did not come at the first appellate court level. Unfortunately, the historical unfairness, injustice that's built into the legal system for Black and brown defendants didn't necessarily provide any relief.”
The commonwealth’s highest court, examining the case de novo, found Cosby's trial unfair because prosecutors used damaging evidence that Cosby turned over in a civil case, even though former District Attorney Bruce Castor told him and the public years earlier those charges were off the table.
It wasn’t just a technicality but "gross prosecutorial abuse" that eventually set Cosby free, said Jody Armour, a University of Southern California professor who studies the intersection of law and race. That misconduct landed him “in a cage” for two years. Armour said it’s “hard to say what is appropriate" as far as Cosby's punishment, but he believes two years imprisonment “is about right.”
The deal itself — an unwritten non-prosecution agreement — is rare on a typical legal battlefield. Such agreements are more often allotted in high-profile cases, Hardaway explained, and Cosby’s fit the bill as the alleged victim, Constand, brought forward a civil lawsuit.
Back in the courtroom, from the first jury to the second trial, a judge let in a significant amount of evidence that could be deemed “prejudicial” — tipping the scales in favor of the prosecution.
In effect, the opinion concluded, Cosby was forced to give up his Fifth Amendment rights protecting self-incrimination.
“What's notable here is that he had the resources and the ability to hire lawyers that were, I'm sure, working full time on his case,” Hardaway said, noting the celebrity figure’s legal team would have kept an exhaustive record throughout years of legal proceedings.
For the average defendant, perhaps unable to afford a personal lawyer, the story may have gone differently.
“I want us to recognize that we’re talking about real pain and suffering,” Armour said. “Even two years is real punishment.”
Armour added that two facts can be true at the same time: Cosby experienced prosecutorial abuse while also “guilty of gross misconduct.”
Others question the system as a whole, and as it applies to the rich and the poor.
April Reign is the creator of OscarsSoWhite and is vice president of content strategy for Overture Global’s Ensemble. Her initial reaction to Cosby's release was that "the prosecution should have done a better job.”
"If the system is broken for one person, it is broken for everyone," she said.
To applaud or not to applaud
Rashad isn't alone in applauding the release of her old friend. A divide continues to deepen between supporters and non-supporters as evidenced by the continued back-and-forth between opposing sides.
Reign said there is a difficulty in "separating the art from the artists" in society. Mr. Huxtable from "The Cosby Show" is a character once beloved as "America's dad." He's not the man who was convicted and ultimately released.
“There are way too many examples of Black men who should be exonerated,” Reign said as she explained that she refers to the criminal justice system as the criminal "legal" system because Black and brown people do not get justice.
Cosby wasn’t exonerated, but the stance that his release is a way “getting off” or “beating” the system stems from a history of Black men getting less fair treatment in the courtroom.
“I definitely understand why part of Black America celebrated his release because there is a long history of Black people and Black men in particular being railroaded by the criminal justice system,” Sherri Williams said.
Williams is an assistant professor in race, media and communications at American University in Washington, D.C.
The sentiment that celebrations are in order, regardless of guilt, when a Black man gets the better end of the justice system is not a new phenomenon, but it comes at a cost.
Williams was in college when Mike Tyson was convicted of raping Desiree Washington in 1992. Tyson was given a 10-year prison sentence with the last four years suspended. Not only was Tyson relentlessly supported throughout the process, she recalled, but victim blaming was tremendously present.
“When or if you come forward, there will be no support for you but there will be support for your predator,” Williams said.
That trend of support is “sacrificing the protection of Black women and girls in order to uphold Black patriarchy.”
Nearly five dozen women, with testimonies that span decades, have accused Cosby of sexual assault. He was one of the first individuals during the #MeToo movement to be convicted.
The prosecution’s successful conviction of Cosby “is something to be heartened by” from the standpoint of holding people accused of sexual assault accountable, Armour, the University of California professor, said. With the final result of Cosby’s case, though, victims of sexual violence feel disheartened about justice working in their favor.
“We’re dealing with social attitudes that jurors bring into the jury box,” Armour said. “On top of that, you give [accusers] the ‘beyond a reasonable doubt’ standard and you have a mountain to climb.”
Cosby's release was not only a shock to the movement, but it added more questions to the handling of rape culture in general for all survivors.
One in four women has experienced rape or an attempted rape during their lifetimes, according to the #MeToo website.
Sonya Martinez-Ortiz, a therapist and executive director at the Rape Recovery Center in Salt Lake City, told USA TODAY that nearly 80% of survivors do not report.
Said Reign, the OscarsSoWhite creator: “What incentive is there for people who are assaulted to come forward when these are the results?”
Ricardo Kaulessar and Matthew Korfhage of the USA TODAY Network's Atlantic Region How We Live team contributed to this story.
Jasmine Vaughn-Hall is a culture reporter for the USA TODAY Network's Atlantic Region How We Live team. Contact her at email@example.com or (717) 495-1789. Follow her on Facebook (@JasmineVaughnHall), Twitter (@jvaughn411), and Instagram (@jasminevaughnhall).