I would not like to admonish my brothers and sisters in the black community, like Phylicia Rashad or Eddie Griffin, who feel that Cosby’s defamation is undeserved and calculated. They might be right. Their anger might be justified.
I would not like to rein in my darlings like Trevor Noah, Larry Wilmore, Tina Fey, or Amy Poehler for making comedy pursuant to common culture. They could be right, but it is not the majority of their job to be right – it is to be funny and to create content.
But the point is that none of them know.
Here’s what we do know.
What’s True About Rape In America
1.) We Have a Disastrously Lax Attitude Towards Rape in America.
When reporting rape in America, people often have to answer questions ridiculous in both quantity and scope. Women have it awful because of the sheer amount of assault, with some reports being as high as 20 percent of women experiencing sexual assault in college. That’s one in five. For men, it can be just as bad to be raped, because no one even believes it can happen.
I view this lackadaisical attitude toward rape in common culture to be a powerful motive for us to believe what rape victims tell us. That’s compassion talking. We don’t want to be overtly skeptical or subject rape victims to the same kind of delegitimization they experience on a daily basis. That is a good and honest thing.
However, when it comes to the law, and how we try, prosecute, and convict criminals, we can’t pretend that that initial reaction on our part is enough to sustain a case, and we shouldn’t slip into believing that it justifies not asking much thornier questions later on in the process.
2.) False Reports
Apparently a number is going around that only 2% of women lie about rape cases, and that number is touted by feminists to make it seem drastically low. However, it is not really reliable. Another number, 41%, bandied about by men’s rights activists, is only slightly more reliable, but seeing as it was the result of research conducted by Eugene Kanin with 109 cases in a small city over a period of nine years, twenty years ago, it’s not your best bet.
That coupled with the fact that Kanin seemed okay with accepting data in favor of his position that could actually swing both ways instead (i.e. counting cases withdrawn by the plaintiff as “false”, when that does not necessarily mean that, for instance), and you’ve got yourself a study you should use very sparingly and cautiously.
The truth? We don’t know. How many rape accusations are actually false is kind of a hard number to come by. So the only way we can judge whether or not these women are telling the truth is whether their stories match up to other objective truths.
Another difficult-to-come-by number is how many instances of sexual assault go unreported. According to RAINN, self-billed as “The nation’s largest anti-sexual assault organization”, that number is 62%, according to research done by the FBI and the Justice Department. However, they don’t describe what “unreported” means, as it could mean “never reported”, which, in the instance of the Cosby rapes, would be untrue.
What’s True About The Law
1.) What Happens In a Courtroom is Different Than What Happens on TV
In the article, One of The Most Shameless Episodes in Journalistic History, Huffington Post journalist Charles Thompson recalls an exchange between Fox columnist Roger Friedman and Matt Drudge of the Drudge Report about the 2005 Michael Jackson trial:
In an April 2005 interview with Matt Drudge, Fox columnist Roger Friedman explained, “What’s not reported is that the cross examination of these witnesses is usually fatal to them.” He added that whenever anybody said anything salacious or dramatic about Jackson, the media ‘went running outside to report on it’ and missed the subsequent cross examination.
Drudge agreed, adding, “You’re not hearing how witness after witness is disintegrating on the stand. There is not one witness, at least lately, that hasn’t admitted to perjuring themselves in previous proceedings either in this case or in some other case.
I understand that not everyone has enough time to devote to thinking about cases like a lawyer, and I understand that I’m no lawyer. But it behooves us to either try to think that way, or to be able to legitimately change our minds about how we see a case, because that’s what our justice system depends upon.
2) News and Truth are Not Synonymous
As noted earlier, the media circus following accusations like these is deafening, but not very reliable. While one might hope that channels and anchors that actually bill themselves as news organizations and professionals would provide more hard hitting journalism, it can seem at times that they are simply starved for the same thing everyone else in entertainment is starved for: content.
As Charles Thompson writes in his article about the Jackson trial:
– “When the prosecution rested, the media seemed to lose interest in the trial. The defense case was given comparatively little newspaper space and air time…”
– “A not guilty verdict was not quite so lucrative. In an interview with Newsweek, CNN Boss Jonathan Klein recalled watching the not guilty verdicts come in and then telling his deputies, “We have a less interesting story now.”
– “Almost every single prosecution witness either perjured themselves or wound up helping the defense. There wasn’t a shred of evidence connecting Jackson to any crime and there wasn’t a single credible witness connecting him to a crime either.
But that didn’t stop journalists and pundits from predicting guilty verdicts, CNN‘s Nancy Grace leading the way. Defense attorney Robert Shapiro, who had once represented the Chandler family, stated with certainty on CNN, ‘He’s going to be convicted.'”
– “The story was over. There were no apologies and no retractions. There was no scrutiny no inquiries or investigations. Nobody was held to account for what was done to Michael Jackson. The media was content to let people go on believing their heavily skewed and borderline fictitious account of the trial. That was that.”
It is a disconcerting reality, but a reality nonetheless, that news is not always trustworthy. Furthermore, it has been demonstrated in cases like the one above that news, starved for content, can get out of control in a hurry, but afterwards, there are no retractions, take-backs, or apologies.
The news can say what it will, speculate how it will, and lay down whatever narrative it will, with very little kickback, regardless of whether they are ultimately right or wrong.
3) Yes, Celebrities Can Go To Jail.
One of the latent fears of the populace surrounding cases involving celebrities is that those demigods will be able to leverage their fame, power, and money in order to manipulate the results of the case. There are only a couple of notes that I would like to submit under this point.
A) Oscar Pistorious and Reeva Steenkamp
On September 12, 2014, Oscar Pistorius was found guilty of culpable homicide and one firearm-related charge, of reckless endangerment related to discharging a firearm in a restaurant. He was found not guilty of two firearm-related charges relating to illegal possession of ammunition and firing a firearm through the sunroof of a car. On October 21, 2014, he received a prison sentence of a maximum of five years for culpable homicide and a concurrent three-year suspended prison sentence for the separate reckless endangerment conviction.
And this was one of our darlings.
All you have to do to be one of our darlings is be an inspirational runner who had his legs amputated when he was 11 but ran anyway – and we still put him in jail. The criminal justice system isn’t perfect, but I only bring up Oscar Pistorius to point out that it’s not impossible for rich, powerful, or extremely likable people to be convicted of a crime, and as much as we are afraid of that, we should know that that doesn’t de facto mean that you’ll get away with something.
B) You’ve Got To Give The Average American a Little More Credit
In the wake of a “not guilty” verdict following a person of fame, the public finds itself asking, “How much did this person’s celebrity tie into the decision?” But this question is unreasonable on multiple counts.
The first is that in cases like Jackson’s, he was acquitted unanimously by a jury of his peers, not by a mistrial (an error in the proceedings.)
It wasn’t as if Jackson used his giant money to pay people off, or every witness was conspicuously found dead in the Bermuda Triangle the day before they had to testify: He was acquitted by a group of well-selected but average American people. And every one of them, after having reviewed the facts and evidence, submitted a ballot exonerating him.
The second reason this question is unreasonable is that it assumes the amorality of the American people, which is not something I believe in. However liked or respected an individual may be, I find it very difficult to believe that these jurors did not want truth. I also find it very difficult to believe that they would pardon someone they thought was a child rapist simply because they liked his music.
You’ve got to give them more credit than that.
4.) The Defense of Fame
This fear of the rich and powerful using their influence or authority to play by different rules has also become one of the talking points in the case of Bill Cosby. When it is pointed out that some of these alleged incidents were almost 50 years ago (which is not to be construed as “less important because it was long ago”, simply to be construed as “legally outside the statute of limitations for a criminal charge”), people claim that the plaintiffs chose not to come forward before because of Cosby’s mega-fame mixed with his values-driven persona (as Margaret Cho states here.)
However, this doesn’t appear to be the best defense for multiple reasons.
A.) Bill Cosby is not less famous now than he used to be.
This one bears very little explanation, but it’s just to say that if these women did not report on Cosby at the time of the incident because of his fame, it makes little sense that they would feel more comfortable now as opposed to then, seeing as Bill Cosby is even more famous now than he was in 1965.
However, a charitable way of understanding this would be to say that the women, seeing the courage of others in similar situations, would finally have the courage to speak out, because numbers are safer. That is reasonable.
B.) It was still 1965.
At least for the first alleged incident of assault, it was still 1965. That’s two years before interracial marriage was legalized, and only one year after The Civil Rights Act of 1964, which outlawed discrimination based on protected classes, including race. It was a whopping 15 years before the acquittal of Robert Teel by an all-white jury for the murder of Henry Marrow sparked outrage and a continuing conversation about racial violence and prejudice, and on August 6 of that same year, 1965, President Lyndon Johnson would sign into law the Voting Rights Act, giving Bill Cosby the right to vote.
My point in recounting that history is that it seems strange to me, the argument that these women immediately felt that they were in a situation that would be unsympathetic or hostile to their claims that a black man had raped them.
In keeping with the precedent of history, they would have been able to simply assume that society would have been on their side, and in keeping with the precedent of history, Bill Cosby would’ve been summarily lynched.
So their reticence to report the incident does not seem quite explainable in that way.
C) Racial Hoaxes and Fear of Black Bodies Is a Feature of American Culture
This is a point I would rather not belabor, because, as I’ve already noted above, nobody really knows how many false reports of rape there are, so we shouldn’t pretend otherwise. I wouldn’t want to appear to be exaggerating the number or understating it.
Suffice it to say, though, that it does happen. And in the case of the war on black bodies, it doesn’t even have to happen, only the insinuation does. Timothy B. Tyson, in his book Blood Done Sign My Name, chronicles the murder of Henry Marrow in Oxford, NC in 1970. Marrow was attacked and chased out of the general store by Robert Teel, the racist proprietor, and his sons, and shot in the head while already on the ground, immobilized from a connecting scattershot. The reason was that he had apparently said “ugly words” about Robert Teel’s daughter-in-law.
As Tyson notes:
The force that drove the bullet through Henry Marrow’s brain, if you were looking for something more explosive than gunpowder and more specific than that Cain slew Abel, was white people’s deep, irrational fear of sex between black men and white women, any single instance of which was supposed to abolish the republic, desecrate the Bible, and ring in Planet of the Apes. (p.43)
Similar cases like that of Emmett Till or of Rosewood Florida can be recounted, their crucial elements being that they include violence justified by America’s substantial history of fear when it comes to black men having sex with white women.
This is particularly to ask, “What, despite this solid evidence of a history that has proven to be entirely on their side, convinced these women that Bill Cosby was untouchable?”
This is honestly not at all to suggest that all rape accusations are lies. But as much as I would be the first to not want to admit it, some of them are, and it would be naive to pretend otherwise.
Consider this excerpt from American Thinker, examining Bill Cosby’s accusers:
Former exotic dancer Chloe Goins claimed that Mr. Cosby sexually assaulted her at the Playboy mansion on August 9, 2008. Her claim was the most serious at the time, because it fell within the statute of limitations. However, Marty Singer, Mr. Cosby’s attorney, has stated that flight and telephone records clearly place Cosby in New York City, 2,500 miles from the mansion, on the date the alleged assault supposedly took place.
That is not even particularly good or clever work on the part of Cosby’s legal team, that’s just him literally not being anywhere near where the plaintiff claims that he was when she claims he was.
An instance like that could only be described using the colorful words of Wolfgang Pauli, the noted theoretical physicist: “That is not only not right, it is not even wrong.” That is to say, “That is so far outside of the strictures of right and wrong that its truth value is unquantifiable.”
Will the other cases follow suit or prove to be similarly hollow?
If a person is that wrong about the details of a case, what compels them to pursue it, and what competent lawyer doesn’t see a loss coming before taking that case?
Are there factors other than justice that can cause someone to pursue unpursuable cases?
These are meaningful questions to ask, but they don’t have clear answers yet.
I understand the outrage of some, the support of others, the pushback against victim blaming or shaming, the solidarity with the oppressed, and a certain mistrust for the integrity of both our legal system and our media, that either spins things to its liking, or doesn’t legitimately stand up for or represent the people.
Like Comedian Jerry Seinfeld said of the Cosby case: “…if the allegations have any truth to them, you want the truth to come out. You want justification for all the people.”
And I know that doesn’t always happen. Dick Cheney doesn’t go to jail despite war crimes we know he committed, and no one goes to jail for the 2008 housing market collapse. Despite our best efforts, ill befalls the good and the evil slip away into the night.
However (and I feel that I’ve sufficiently prepared you for this opinion at this point): I don’t think Cosby, in the legal sense, raped these women. (Which should be differentiated from any simply smarmy or skeezy behavior.) As far as what we send people to jail for and how long, I don’t think that Cosby is guilty under the law.
To me, the evidence points more strongly towards a case for defamation and money rather than justice. That combined with previous fraudulent cases of a similar nature makes me believe that it is reasonable that a confluence of factors are responsible for Cosby’s current crucifixion, and that what the American public would like to believe is not the same thing as what is objectively true in this case, or what can actually be ascertained under the law.
To be clear, I could be wrong.
And that is why, thankfully, we do not summarily execute people. That is why we have a legal system. Because, for all its faults, it is possible that in the due course of time, we may discover facts and figures that challenge our notions of what already is, and quite possibly, that change our minds.
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