The first time Bill Cosby went to trial on charges that he drugged and molested a woman, his lawyers went with a classic defense: “She’s a liar.”
Jen Kirby is a senior foreign and national security reporter at Vox, where she covers global instability.
On Tuesday, Cosby’s lawyer argued in his opening statement in a retrial of the same case that the accuser, Andrea Constand, is a “con artist” who crafted an elaborate story to bilk Cosby out of millions of dollars.
“You’re going to be saying to yourself in this trial,” defense attorney Tom Mesereau told the jury. “‘What does she want from Bill Cosby?’ And you already know the answer. Money, money, and lots more money.”
Both arguments stem from the same old trope: You can’t trust a woman who says she was sexually assaulted. A year ago, Cosby’s lawyers had no real explanation for why. Now they say it’s because of greed.
Confronted with the questions of the #MeToo movement, the Cosby defense is still fronting a retrograde defense, one that sounds a lot like cases that have always been made against women.
Cosby’s lawyer and the prosecution agree it’s “he said, she said”
The defense’s Tuesday opening arguments pointed to a specific mode of attack — discrediting the assault allegation by painting it as a preconceived plot.
Cosby’s layer slammed Constand as a “con artist” and a “so-called victim” during the defense’s opening statement, describing her as an opportunist after money and fame.
Mesereau is attempting to build his case around the revelation that Cosby paid Constand nearly $3.4 million in a 2006 settlement. Constand alleged that Cosby drugged and molested her in his Pennsylvania home in 2004. She reported the incident to authorities in 2005, about a year after the incident. Prosecutor declined to charge Cosby at the time. Constand then pursued the civil lawsuit in 2005; the two reached an out-of-court settlement in 2006.
In the first trial, the defense tried to discredit Constand, picking apart her testimony for inconsistencies. The defense will also call a witness, a woman who worked with Constand at Temple University, who’s expected to testify that Constand fabricated the accusation against Cosby to win money from him.
The prosecution also brought up the multimillion-dollar settlement in its opening arguments; Montgomery County District Attorney Kevin Steele argued that Constand sued Cosby after prosecutors declined to bring a criminal case against him, and that, per the terms of the settlement, she had remained silent about the 2004 incident. Only when dozens and dozens of women began speaking out in 2014 and 2015 did Montgomery County prosecutors reexamine the allegation, which was up against the statute of limitations deadline.
Cosby’s lawyers’ attacks on Constand aren’t new
The fallout from accusations against Cosby, Bill O’Reilly, Harvey Weinstein, and more have advanced the conversation around how we think about the trauma of sexual misconduct, why women are often reluctant to report it, and why they may wait years to speak out.
That has also helped erode — but not eradicate — the smear that victims fabricate accusations for personal gain. That fear, especially when it comes to powerful men, is often what prevents women from coming forward. Many of Cosby’s accusers said that was what kept them silent for years; they said they didn’t think it was worth the attacks on their reputation, their families, their integrity. “I have never received any money from Bill Cosby and have not asked for it,” Barbara Bowman, who accused Cosby of drugging and assaulting her in the 1980s, wrote in 2014. “I have nothing to gain by continuing to speak out.”
It’s true that Constand pursued a civil suit and received a multimillion-dollar figure. She is not the first accuser to pursue civil settlements for assault or harassment; accusers of Bill O’Reilly and Roger Ailes did too. It’s also true that Constand went to the police, who listened to her, and to Cosby, and declined to pursue criminal charges. If one avenue of justice is closed, why not try another?
That’s the argument the prosecution tried to advance on Monday, with the hope that the testimony of five other women will help them win this argument. In the first trial, the prosecution called Constand and one other Cosby accuser to the stand. This time around, five women who say Cosby drugged and assaulted them will testify at the trial, and now that the allegations are decades old, it will be harder to argue that all five are liars out for personal gain.
The first of those women, Heidi Thomas, testified on Tuesday. She said she was 24 and an aspiring actress when she met Cosby through a talent agency in 1984 in Reno, Nevada. She said Cosby offered to mentor her and asked her to read a script, where she would play a drunk person. Thomas said Cosby gave her a glass of wine, and she took a sip and blacked out.
The rest of the night came in “snapshots,” she said on Tuesday, saying she remembers Cosby trying to force oral sex, and waking up naked in bed with him. She also said she never sought a lawyer, or asked Cosby for anything.
The defense will resume cross-examination of Thomas on Wednesday.
The prosecution is hoping the accounts of Thomas and the four other women will bolster the legitimacy of Constand’s story, establishing a predatory pattern by Cosby. The defense will instead try to establish a different pattern — one that pits Cosby against a powerful movement. The prosecutors, defense attorney Mesereau said in his opening statement, “are hoping that somehow in the current climate in America maybe you’ll be prejudiced.”
“Maybe you won’t see the facts,” he added. “Maybe you’ll just be too blinded by the accusations.”
