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Zosia Bielski (Globe and Mail Update)

Zosia Bielski

(Globe and Mail Update)

Cosby jury deliberation shows we're moving the needle on sexual assault Add to ...

While exasperating, the jury’s deadlock and nail-biting, four-day deliberations in Bill Cosby’s trial on three counts of aggravated indecent assault offered a glimmer of hope that socially, we may be moving the needle on sexual assault.

This week, as the jury of seven men and five women toiled toward a decision in the Norristown, Pa. courtroom, they repeatedly asked about damaging sections of Cosby’s 2005 sworn depositions. In a rarity for such a trial, we got to hear directly from the accused, not just the complainant, Canadian Andrea Constand.

While the jury asked about Constand’s initial police report, most of their questions zeroed in on Cosby’s own words and admissions. That offered tentative relief: it means the jury members are considering all of the evidence before them, rather than falling back on outdated stereotypes and rape myths. And it means they are doing more than just fixating on Constand’s behaviour after the alleged assault – the phone calls, gifts and attendance at his comedy show. (Constand testified that she was trying to maintain good relations with Cosby, who was on the board of trustees at Philadelphia’s Temple University, where she worked. Cosby says they had a romantic relationship.)

Related: Jury deadlocked in Cosby trial

The jury’s first question pertained to Cosby’s admission that he gave Constand three blue pills. Cosby recalled telling Constand, “I have three friends for you to make you relax.” The jury requested to hear another passage, this one including troubling details about Cosby’s notion of consent. “I don’t hear her say anything. And I don’t feel her say anything,” Cosby said, describing his thought process as he touched Constand’s genitals. “And so I continue and I go into the area that is somewhere between permission and rejection. I am not stopped.”

Thanks to that sworn deposition, the spotlight swung from complainant to accused. Such scrutiny remained largely absent from the sexual assault trial of CBC Radio broadcaster Jian Ghomeshi, where the focus veered toward the complainants’ behaviour after the alleged assaults, of which Ghomeshi was acquitted last year.

Despite that acquittal, Ghomeshi, previously a Cancon darling, has been functionally excommunicated in public, a reality echoed in his attempt at a comeback, a monologue podcast titled “Exiles” that was widely derided upon its launch in April.

Today, as Cosby, once “America’s Dad,” walks in and out of the courtroom – sometimes bizarrely bellowing, “Hey, Hey, Hey!”, his Fat Albert catchphrase, to the few fans left clustered outside – it’s clear that social norms around sexual assault are turning, whether some like it or not.

High-profile accuseds are under the microscope, as are police who investigate the crime. Globe reporter Robyn Doolittle’s Unfounded investigation – which unearthed the disproportionate number of sexual assault complaints in which police decide an attack did not happen – saw a third of the country’s forces publicly commit to review years of sexual assault cases. About a dozen forces have said they are open to including advocates for survivors in their reviews, with police in Ottawa, Brantford and Calgary coming forward with a modified Philadelphia Model, which sees external agencies assessing how police handle such cases.

Judges, too, have come under fire for deploying rape myths and stereotypes in their court decisions in sexual assault cases. There was then-Alberta Justice Robin Camp, who in 2014 asked a rape complainant why she simply didn’t keep her knees together, and perhaps more appallingly, went on to lecture the 19-year-old woman that “pain and sex sometimes go together.” (Camp resigned after the Canadian Judicial Council ruled in March that Parliament remove him from the bench.)

More recently, two laws have been put forth to re-educate judges on the basics of sexual assault, including the legal definition of consent, and rape shield laws that preclude defence lawyers from dredging up a complainant’s sexual past to discredit her.

In February, Rona Ambrose, who was then the interim Tory leader, proposed a bill that would require mandatory training for would-be judges in sexual assault law in a bid to stem outdated stereotyping of complainants in the judicial system (the bill received unanimous support in the House of Commons in May).

And earlier this month, Justice Minister Jody Wilson-Raybould introduced sweeping legislation to codify landmark sexual assault court decisions, just in case some judges needed reminding of the relevant case law (the bill would also extend rape shield laws to include sexual texts, e-mails and videos). Wilson-Raybould said she hoped the proposed changes would “go a long way towards ensuring that complainants are treated with the compassion, dignity and respect they deserve.”

These are tectonic shifts in a system that needs drastic overhauling. It’s hard to forget the Halifax judge who acquitted a taxi driver of sexual assault and announced that “clearly, a drunk can consent” – this after police officers discovered a young woman unconscious in his cab, her pants and underwear removed and the driver’s seat reclined. A review of that case found Judge Gregory Lenehan bought into stereotypes about the “promiscuous party girl”; you know, the one who seduces cab drivers while passed out cold.

More recently, Alberta Justice Minister Kathleen Ganley ordered an external review of the disturbing treatment of an Indigenous sexual assault complainant who was jailed for five days, a draconian measure to ensure she testified. The homeless woman was also forced to wear leg shackles in court, to which she was driven in the same van as the accused on at least two occasions.

These cases are a screaming alarm call about how judges and police approach sexual assault in this country. Some have suggested more female judges might be a fix; perhaps retirement from the bench by the most antiquated thinkers might make a dent in the problem, too. Social change moves at a glacial pace, with many clinging inexplicably to the old ways of thinking and remaining willfully blind. This column will no doubt elicit much mansplaining about the women who throw back shots, flirt with men, show off skin and “have it coming.” Because it involves sex – and arguably because it is still, by and large, a gendered crime perpetrated predominantly by men against women – the violent crime of sexual assault still scrambles people’s brains.

But just as raping your wife is now a crime (it wasn’t in 1983 in Canada) and domestic violence doesn’t draw titters from the House of Commons (unthinkable, but it did back in 1982, when MP Margaret Mitchell raised the issue of battered women during Question Period), our antiquated estimations of sexual assault survivors will also one day expire. It’s a pained overhaul, but it’s real.

We have talked consent and sex education in schools until we were in blue in the face. While that remains a crucial step for young minds, what we need now for adults is deterrence. As we hold out for Cosby’s verdict, his jury’s marathon deliberation put America’s Dad – and others – on notice.

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Follow on Twitter: @ZosiaBielski

Also on The Globe and Mail

Bill Cosby exits courthouse after first day of sexual assault trial (Reuters)

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