Bill Cosby’s legal team was quick to declare victory on June 17 when a Pennsylvania judge declared a mistrial in the aggravated indecent assault case against the 79-year-old entertainer.
The promise by Montgomery County district attorney Kevin Steele that the case will be retried within a year did not dissuade Cosby spokesman Andrew Wyatt from raising a fist on the courthouse steps to announce: “Mr. Cosby’s power is back.”
The issue of power is indeed at the heart of the sexual-assault allegations brought by Andrea Constand over the 2004 incident at Cosby’s suburban Philadelphia mansion. A jury of seven men and five women was asked to determine if Cosby used his power — aided by drugs that he admitted giving Constand — to have a sexual encounter with her without her consent. Based on the questions the jury asked of the judge during 52 hours of deliberations, it appears that one of the issues that led to the deadlock among jurors was the question of consent.
The Constand prosecution became the symbolic quest for justice by the more than 40 women who came forward with allegations of having been drugged and assaulted by Cosby as far back as the late 1960s. Although the judge allowed the testimony of only one other accuser, the volume of past accusations against Cosby undoubtedly was not lost on at least some of the jurors.
The divide that produced the mistrial in the Cosby case reflects the broader conflicts in the culture over the nature of gender discrimination.
Donald Trump’s now-famous “Grab them by the pussy” declaration wasn’t enough to stop millions of women from voting for him for president. Yet themes of empowerment, strength and equality for women could not be more front and center in pop culture at the moment. From “Wonder Woman” to “The Handmaid’s Tale,” there is great attention to female-centric storytelling and the portrayal of women.
Across media, politics, business and other sectors, there is heightened sensitivity to issues of gender inclusion and parity in leadership and management roles. Witness the turmoil in recent weeks at Uber, which is grappling with reports that it fostered a toxic work culture that tolerated sexual harassment. The irony was thick last week when Uber board member David Bonderman, head of private equity giant TPG, hastily resigned his post after making a sexist comment about women as board members during a company forum to discuss the results of its sexual-harassment investigation. Trump won the White House, but Fox News power brokers Roger Ailes and Bill O’Reilly were toppled from their seemingly untouchable perches by sexual-harassment allegations. Two steps forward, one step back.
Legal experts say the second Cosby trial will likely be mostly a rerun of the first, given the players. In sexual-assault cases, there is always concern that the victim may not be willing to endure another round of testimony. The Cosby-Constand case has taken on significance beyond the many women who claim wrongdoing by the once-beloved entertainer. It has come to symbolize the Sisyphean effort that victims of sexual assault often face in pursuing prosecution.
Barbara Ashcroft, a former sex crimes prosecutor and associate professor of law at Temple University, said Constand likely feels the weight of that responsibility. “As the proxy for so many women that have alleged Cosby drugged and sexually assaulted them, no doubt she has what it takes to testify during a second trial,” Ashcroft said.
Ted Johnson contributed to this report.