On Friday, the jury ended their deliberation on Bill Cosby’s sexual violence trial: a hung jury.
A group of 12 people couldn’t decide whether or not Andrea Constand consented to taking unknown pills and then having sexual intercourse with Bill Cosby.
The case only dealt with one victim, but it came with the context of approximately 60 victims coming forward in the last 20 years or so. 60 women came forward with similar tales of Cosby giving them pills and then having sexual intercourse without their permission.
We pat ourselves on the back for all the progress we’ve made in women’s rights, and yet our legal definition of rape has changed very little since the 1970s. The only remarkable change has been the addition of marital rape (it was officially included as legal rape in all 50 states in 1993), but other than that, all new laws pertaining to sexual violence added to the books have been concerning what can be admitted into evidence, how long a victim has to take legal action, and how to deal with the ever-growing bank of untested evidence, not what defines rape. In addition, all 50 states actually have different definitions as to what legally constitutes rape, so it turns out we can’t even agree on that point.
It’s not just the legal system that can’t decide — it’s society. Earlier this week, production shut down on the set Bachelor in Paradise after a producer reported that contestant Corinne Olympios was too drunk to consent to oral sex with a male contestant. Yet social media is in a fierce debate as to whether Corinne consented, whether she’s “doing it for the fame,” or whether she was “asking for it” due to her flirtatiousness.
But the truth is we’re debating the wrong question in the first place. It’s not a question of consent to sexual activity because sexual violence is not about sex at all; it’s about power.
If Bill Cosby merely wanted to have sex he could have done it easily. He was (is) quite famous and presumably could have found a willing sexual partner if he wanted. Or — and here’s a novel idea — he could have had sex with his wife.
It’s not about sex and it’s not about consent. How can one consent when there is inherently an imbalance of power? There are too many variables at play for a woman to make a decision at her own free will. And when we make it a question about consent we buy into this false narrative of “he said she said,” placing the burden of proof on the victim.
Sexual crimes are the only ones in which we expressly and always question the victim’s validity. When someone says they are robbed, we don’t question if they were in fact robbed, we just question who robbed them.
At Cosby’s trial, both Cosby and Constand agreed to the basic narrative of the evening: that Cosby gave Constand pills and then intercourse ensued. And yet the jury questioned whether or not Constand was a willing participant. But that’s not a fair question to ask when Constand was never truly given the choice in the first place.
By giving the question of consent power, we’re agreeing to the basic assumption that sexual consent is up for debate, which is insulting and demeaning.
We’re kidding ourselves if we think we can ever change this. Feminist scholar Catherine Mackinnon puts forth the radical notion that sexuality is actually “ a social construct of male power: defined by men, forced on women… Male and female are created through the eroticization of dominance and submission. The man/woman difference and the dominance/submission dynamic define each other.” If that’s the case, then we have no hope to correct it.
But society has another hurdle in ending sexual violence.
Remember, there were both men and women on Bill Cosby’s jury. And while we don’t know the exact ratio of men/women who voted guilty/not guilty, it would be naive to assume that all women voted “guilty.” The jury pool was, in fact, pooled from the same society in which 42% of female voters voted for Donald Trump, who was caught on tape bragging about sexual assault.
Sexual assaults are still wildly underreported in the United States. And with verdicts like the one in Cosby’s trial, we can’t imagine why.
Lena Finkel is the Editor and Founder of Femestella. Prior to starting Femestella, she worked at People, InStyle, and Tiger Beat. Her favorite Housewife is Bethenny Frankel and when she’s not watching RHONY, you can probably find her obsessing over her tuxedo cat Tom or hoarding drugstore lipsticks.