As jurors begin hearing arguments in Bill Cosby’s retrial for sexual assault next week, it seems as if a century has passed since that Saturday morning last June when the jury declared it was deadlocked.
During the intervening months, we have been treated to a master class on assault, abuse, credibility, plausibility and culpability. The #MeToo movement has shattered all of the existing paradigms, and the main actors in the Cosby case are deeply aware of that tectonic shift. The New York Times recently published an article describing how the presiding judge asked each juror if he or she was aware of #MeToo, and all but one responded in the affirmative.
The #MeToo movement has been a good thing, according to the people who believe that women have long been the victims of both society and the criminal justice system. I can’t deny that for generations, women (including some that I love and others with whom I’ve worked) were physically beaten and emotionally manipulated by their abusers and then again by a legal process that ran roughshod over their nonexistent rights. If you were to tell a young woman today that there used to be no such thing as “spousal rape,” since women were the property of their husbands and therefore sex was a duty owed and not a mutual engagement, she would look at you as if you were crazy. And that’s because times have changed, despite what the #MeToo activists would have you believe.
In that Times article, law professor Deborah Turkheimer made the following observation about the altered landscape, one that used to see dinosaurs like Harvey Weinstein walk the earth but is now filled with other, unexpected predators: “The ways in which we evaluate the credibility of survivors has also shifted in important ways, from a default to doubt (the women’s account) to a greater willingness to believe. And we have been newly school in the importance of consent.”
Everything that the law professor says is true.
The default now is to believe the accuser. Cosby’s attorneys, prosecutors and his judge all know this. So do the women who are watching this retrial closely, and waiting.
I am watching this retrial, and I am waiting, and I am nervous. It has much less to do with an 80-year-old comic this time around.
I spent a lot of column space defending Cosby, and that was hardly a popular position to take even before Ashley Judd and the other ladies started pointing fingers at powerful men. I still think that the whole prosecution playing itself out in Montgomery County is fatally flawed, and that “justice” can only be approximated in this tense and biased atmosphere.
But this isn’t really about Cosby.
Now, I’m concerned that the rush to dispense with due process in the courtroom and in our criminal justice system has leached into society at large, filling our conversations and our interactions with a dangerous strain of what someone recently called “street justice.” And we’ve only begun to see the lengths to which some people will go to obtain that gritty and untested vindication.
Earlier this week, my paper ran a piece by reporter Samantha Melamed profiling a woman named Caitlin Mooney who claimed that she was raped while sleeping at a friend’s house. According to the article, “when she woke up, she was naked from the waist down. She could see and smell semen on her abdomen.”
Mooney said that she couldn’t remember agreeing to have sex, and came to the conclusion that she’d been raped. When she contacted the alleged rapist for an explanation, he responded, “You’re out of your mind.”
So, instead of going to the police, she posted the man’s name on her Facebook page, calling him out for raping her. Mooney’s real and virtual friends, numbering in the thousands, got the word out about the alleged accuser. He lost employment and was made a social pariah. Short of a defamation suit, which he would do well to consider, there’s not much he can do to get back what Shakespeare calls “the immortal part” of himself, his reputation.
Mooney turned the post-#MeToo desire to believe women into a weapon for vengeance.
Anyone who isn’t scared about that is a fool.
At least with Cosby, we have an imperfect institutional process trying to balance the competing rights of the accused and the accusers. But when you have women taking matters into their own hands, the principle of “innocent until proven guilty” becomes road kill.
I guess that’s what they mean by street justice.
Christine M. Flowers is a lawyer and columnist for the Philadelphia Daily News. Readers may send her email at [email protected].