The trial of Bill Cosby provides what social scientists might call a natural experiment. In the spring of 2017 a jury could not agree about whether the American comedian had drugged and sexually assaulted Andrea Constand, setting the stage for a retrial. But between that trial and this one came the revelations about Harvey Weinstein and a cascade of other powerful men that invigorated the #MeToo movement. The big question: would it make any difference?
It well may have. The jury deliberated not even two days – compared with six days the first time around – before finding Cosby guilty on all counts on Thursday.
There were other key differences: jurors saw a new defence witness, who testified that Constand had said it would be easy to use fabricated abuse claims to extort a celebrity. And they saw more evidence of a pattern of predatory behaviour that extended beyond Constand: the judge allowed five of Cosby’s approximately 60 accusers to testify, compared with one at the first trial. But some have suggested that the judge’s decision was also a response to shifting social views after #MeToo.
What happened with the first Cosby jury?
Jurors, both men and women alike, have been notoriously reluctant to convict in sexual-misconduct cases, particularly when the accused is significantly more powerful than the victim, or when the victim is poor or a member of a minority group, prosecutors and other jury experts say.
Juries tend to focus on two main issues: whether they believe the accuser, and whether the sexual behaviour was consensual. The question of consent gets particular scrutiny when the victim previously knew the accused, which is the case in most sexual assaults. In a series of mock jury trials in England in 2013, many jurors said that acquaintance rapes were “less clear cut” and “more difficult to prove” than rapes by strangers.
Especially in cases that hinge on he-said-she-said evidence, a jury must not only believe the victim, according to Deborah Tuerkheimer, a law professor at Northwestern University, in Illinois, and former prosecutor, but also be able to imagine themselves or someone close to them in her shoes. "Do we care? Do we think this is serious? Do we think this is worth a conviction?" she says.
Jurors frequently scrutinise such issues as whether the victim fought back, whether she has the injuries to prove it, whether she had been drinking or whether she had done anything to signal her consent. If the victim did not physically resist, even if she was fearful or incapacitated, one study showed, she was more likely to be viewed as a willing participant. Jurors also doubted victims who did not show emotion on the stand.
After the first Cosby trial a male juror, quoted anonymously by the Philadelphia Inquirer, said: "Let's face it: she went up to his house with a bare midriff and incense and bath salts. What the heck?"
What was different about Weinstein?
Angelina Jolie, Gwyneth Paltrow, Uma Thurman: the voices of some of the world's most famous women accusing Harvey Weinstein, the powerful Hollywood producer, of serial sexual misconduct over a period of decades, convinced some people that the women had nothing to gain – and much to lose – by lying about Weinstein, who has denied committing any crime.
Their stories, along with those of much less famous women, made plain the way powerful men have been able to get away with such criminal behaviour and shed light on the many reasons victims might choose to remain silent, including both explicit and implicit threats to their careers and reputations.
The women also gained traction through sheer numbers, with accounts that were precise, detailed and fit a pattern. But Melissa Gomez, a jury expert and author of the book Jury Trials Outside In, says her research showed that the #MeToo movement has been polarising, hardening the position of both those who believe sexual-misconduct complaints are not taken seriously enough and those who are sceptical of accusers or think they somehow "asked for it".
“#MeToo does not erase that,” she says. “They’re not going to change their mind.”
How many is too many to ignore?
The sentencing of Larry Nassar, the doctor to the United States gymnastics team, earlier this year was the first high-profile case to unfold in a court of law after the emergence of #MeToo. It showed the danger of official inaction: the silencing or sidelining of those who tried to report his misconduct allowed him to get away with assaulting girls and young women under his care for decades.
But at his sentencing victims were allowed to tell their stories, under the imprimatur of a judge who called them heroes. The critical element, experts say, was that Nassar had left behind far too many victims for people to simply ignore. In all more than 160 teenagers and women said Nassar abused them.
“The most powerful cases are where there are multiple accusers,” Gomez says. “But what we don’t know is what impact #MeToo would have on a single accuser.”
There are also concerns that juries may come to expect strong evidence of a pattern, the same way they have come to expect advanced forensics like DNA testing, even though it is not always available.
“If it’s the case where there are 60 accusers and six come forward – and that’s the only way a case is brought – that’s a problem,” Tuerkheimer says. “There’s the appearance that for women to be believed it couldn’t be just one: it had to be many.”
In the Cosby case, was #Metoo on trial?
Although the jury took very little time to find Cosby guilty, Michelle Dempsey, a law professor at Villanova University, in Philadelphia, warned that the verdict should not be regarded as a litmus test for #MeToo but simply as a jury's decision in a single case.
More important, she says, is that the case is part of a shift in what she calls the “norms of accountability”. People can discuss abuse on Twitter, and many companies have beefed up harassment training.
"It's not just a matter of taking people to court," Dempsey says. "We're recognising that there's lots of ways to hold people accountable for sexual harassment and sexual violence." – New York Times