The hung jury in Bill Cosby’s sexual assault trial perfectly captures Americans’ profound ambivalence about the crime of sexual assault. The judge declared a hung jury in the trial on June 17th. The jury had been deliberating for close to 52 hours without success, and had informed the judge that they were deadlocked.
Judging by their reactions to rape trials, Americans are of two minds about the crime of sexual assault. Conflicting stereotypes and expectations about defendants and victims, and about the crime itself, influence jurors as they evaluate trial evidence.
On the one hand, we often react with anger and disgust at men who have committed rape ― at least men who match the characteristics of the stereotypical rapist. The desire to punish rapists is strong. Criminal sentences for convicted rapists are already lengthy, but surveys show that many Americans think that defendants convicted of rape should spend more time in prison than they currently do. Additionally, there is a historical pattern of especially severe sanctions for black men sexually assaulting white women.
But, on the other hand, people continue to view the victim as somehow responsible for her own rape. A culture of blaming the victim remains a strong and apparently very effective theme for the defense in sexual assault cases. Many people ― including jurors ― continue to doubt victims’ claims. These doubts can be resolved, but usually it’s when the victim and the case fit our classic stereotype of “real rape.” In a sexual assault case, seemingly every aspect of a victim’s character or behavior is up for critical examination.
In most jury trials, judges agree with jury verdicts. But in cases of rape, the disagreement is more frequent, and tends to show up in cases in which victims are seen to have acted in some way that made the rape possible, perhaps by hitchhiking, or by drinking with the defendant, as Neil Vidmar and I write in our book Judging the Jury. Prosecutors continue to lament that it’s difficult to obtain convictions in acquaintance rape cases, which don’t fit the classic stereotype of rape.
In the Cosby trial, the defendant, the victim, and the sexual assault itself all departed from stereotype. Victim blame was an especially prominent theme in the Cosby defense at trial. Why was she at his house? Why did she take the pills he offered her? Why did she call him afterwards? Was she motivated by fame to falsely accuse Cosby? One courtroom observer called the Cosby defense strategy a “case study” in rape culture.
To be sure, there are inevitable evidentiary difficulties in rape cases, and they added to the jury’s problems in reaching a definitive verdict. By their nature, sexual assaults usually occur in private, meaning that juries must evaluate the competing stories of the only two individuals who were there. Cultural narratives about rape run up against the law’s need for definitive proof of what happened in what is usually a private crime. The case against Bill Cosby had flaws that are not uncommon in sexual assault trials. A lengthy period elapsed between the sex and the reporting of it. The victim’s memory of the incident, which occurred over a decade ago, was uneven. The victim and her family stayed in contact with Bill Cosby even after the sexual incident, contrary to what most people would expect. Cosby didn’t take the stand, meaning the jury had only a partial, incomplete account from him. Combined with cultural stereotypes about sexual assault, Cosby’s celebrity, and publicity about other women’s claims, these evidence gaps likely pulled the jury in conflicting directions. In my view, all these elements made it challenging to reach a definitive verdict.
The prosecutor has announced that he will retry the case. What will it take to get a definitive verdict? First, start with more thorough jury selection, which will be needed at a second trial even more than at the first. The trial judge limited the questions asked of jurors in the Cosby pretrial questionnaire. Our society’s ambivalent attitudes about sexual assault mean that attorneys for both sides need to be able to explore attitudes and prior knowledge that will influence jurors.
But even more important is to help jurors put the evidence in context. Research on hung juries finds that the number one problem leading to a jury’s inability to arrive at a verdict is the closeness of the evidence in the case. An all-out education about the reality, not the stereotypes, of the contemporary phenomenon of sexual assault is required. We need to start that now. Let’s conduct sexual assault trials without sexual assault stereotypes.
Valerie P. Hans is Professor of Law at Cornell Law School. Author of over 100 research articles and four books on the jury system, she is a 2017 Public Voices Fellow at the OpEd Project.