Bill Cosby is free. He has been freed from the Pennsylvania prison where he was being held for the past three years and he has gone home, where undoubtedly he will be celebrating tonight. The story of how his conviction for the sexual assault of Andrea Constand was summarily overturned is also an argument for why #MeToo has been so centered on wielding cultural power: shaming and naming rather than the exhausting and unpromising pursuit of legal justice. The legal system as it currently exists is failing women who have been harassed and assaulted by powerful men, and Cosby’s overturned conviction tells a story of these failures.
At the center of them is a man named Bruce Castor, the former district attorney of Montgomery County, Pennsylvania, and also one of the men who would help defend former President Donald Trump in his second impeachment trial. That was to come over a decade after his DA stint, however; in 2005, Castor was faced with the decision of whether or not the State of Pennsylvania would prosecute Bill Cosby for the sexual assault of Andrea Constand, who when she first met Cosby in 2002 was the director of the women’s basketball team at Temple University. Constand testified that she had suffered the assault two years later at Cosby’s home. There, while sitting at his kitchen table, Cosby had offered her some pills, which he said would relax her. Not long after Constand had taken them, she said, she felt strange, like she couldn’t feel her legs and felt suddenly sleepy. When she came to for a time, she remembered being on a couch with Cosby penetrating her with his fingers. “At some point,” according to court documents, “Constand lost consciousness.”
As is the case with too many sexual assault cases—less than a third of rapes are reported to police and less than one percent of rapes and attempted rapes result in a felony conviction—DA Bruce Castor decided that there was not enough evidence to prosecute Cosby. But Castor also did something else, which he has since said was “the best way to achieve justice”: he issued a public press release saying that the state would not criminally prosecute Cosby for sexual assault. Constand then pursued a civil case against Cosby, for which Cosby was deposed. In the deposition, he makes incriminating statements about giving Quaaludes to women before initiating sex. He spoke not out of contrition, apparently, but because he does not believe his actions are wrong, let alone prosecutable. Notably, he never once mentions the non-prosecution agreement with DA Castor—and since the threat of prosecution was (he thought) removed, he did not invoke the Fifth Amendment privilege against self-incrimination. The case was settled for $3.38 million paid by Cosby to Constand.
In 2015, the issue came to light again when the depositions that were taken for Constand’s civil case were obtained by the media. Suddenly, the nonchalance with which Cosby spoke of drugging women was before a new district attorney, Risa Vetri Ferman. In September 2015, perhaps in response to Ferman reopening the case, Castor, the previous district attorney, wrote an email to her (quoted in its entirety by the Supreme Court in their decision) saying that he had said in a press release that he would not be prosecuting Cosby so that Cosby would testify truthfully in the civil case Constand brought against him. Castor had never said anything about this before. It appeared he was bringing it up to prevent DA Ferman from filing criminal charges against Cosby, which she did, shortly before the statute of limitations would have expired.
This is why #MeToo has been so centered on wielding cultural power: shaming and naming rather than the exhausting and unpromising pursuit of legal justice.
Prosecutors do grant immunity to certain witnesses—and sometimes even defendants who testify against another defendant—in exchange for information or testimony. These grants of immunity are in writing and signed by the district attorney. There is no such document in the Cosby case that records a grant of immunity at all. The Supreme Court of Pennsylvania notes this in their decision, as well as the fact that no one in the DA’s office at the time, and no one on either Constand’s or Cosby’s old legal teams remember any discussion of such an agreement. Constand’s civil attorney also testified that they had never requested or received a grant of immunity from the DA’s office. In sum, there was no record of a grant of immunity in the file that sat before the new DA in 2015; there was a press release that Castor intended as a binding non-prosecution decision.
Sadly, the lack of a formal agreement does not matter. According to the decision overturning Cosby’s conviction, the press release with the signature that ex-DA Castor released is now to be understood as grant of immunity to prosecution, in perpetuity. Per this interpretation, Castor’s admission that he had such intention is enough to overturn Cosby’s conviction. The man who defended Trump, our famous pussy-grabbing president, has now managed to free Bill Cosby, who testified to drugging women and having sex with them.
If there was ever an indictment of the legal system’s inability to provide women who are raped, harassed, and abused by men a clear roadmap to justice, here it is. If there ever was an argument to be made for “canceling” abusive, assaulting, raping men, shamed by society and ostracized by all, here it is. When the precise tools offered by the legal system, its collations of proof, its rules of verification and of admissibility, prove so horrifically ineffectual to meet the needs of women who seek punishment for the men who have sexually assaulted them, then the blunt instruments of cultural upheaval are necessary.
Negative publicity and organized ostracism are blunt tools; there is no independent judge, there are no trained lawyers, there is no hermetic courtroom where what is said and what is presented is strictly controlled. Instead, there is only rage and outrage, the frustrations of half the population that is just fed up with feeling constantly hunted, constantly preyed upon by the other half. Yes, not all men belong to this category, but because all men are not sufficiently interested in speaking up against some men or pointing out how systems of proof and prosecution are not pliant enough to meet the needs of prosecuting sexual crimes, they will have to confront the inexact revenge of cultural revolt.
Where there is no justice, there is only revenge. Technicalities free murderers, too, not only rapists. But there is no statute of limitations upon murder; cases may not be immediately prosecuted, but they can remain open for one, two even five decades. This is because murders, unlike most rapes, involve men and women; and to a man, the idea of another man suffering terrible injustice is revolting. It is rage against just this that instigated #MeToo, and it is the continuing frustration from verdicts like this one that keep it going. To all those men who lament the approximate accusations and the rough-hewn tools of feminist revenge, remember the day Bill Cosby the once-convicted rapist was declared to be the wronged party and was set free. If convictions cannot teach rapists a lesson, cancellations will have to do it instead.