Why Determining Consent Is Difficult in Sexual Assault Cases

Lily Bernard confronts a supporter of Bill Cosby outside the Montgomery County Courthouse in Norristown, Pennsylvania on Thursday, June 15, 2017. Alicia Lozano / NBC10

Day five of deliberations in Bill Cosby’s sexual assault trial, and the mood outside the courthouse turned sober as spectators wondered what could be taking the jury so long to reach a verdict.

“It’s like groundhog day. You wake up every day and it’s the same thing,” said Dennis McAndrews, former prosecutor and local Montgomery County attorney who has been attending the trial daily.

“The mood is very serious, bordering on testy.”

The biggest question centered on the definition of reasonable doubt. The jury asked the judge for a read-back of testimony provided last week by accuser Andrea Constand’s mother, sparking the outrage of Cosby’s defense team.

"What we’ve got now is jurors trying to overcome other jurors by having a recap of the entire testimony," defense lawyer Brian McMonagle said while demanding a mistrial.

The jury remained obstinate, asking for additional testimony about Cosby giving quaaludes to women in exchange for sex in the 1970s. They also asked for Constand’s testimony on phone records showing she stayed in contact with Cosby following their encounter.

These two questions seemed to indicate a third question: Why is consent so difficult to define?

“Sexual assault cases I always found to be particularly difficult," McAndrews said. “Not only because of the emotion involved but also because, for the jury to convict, you’re not only asking them to find him guilty of a crime, you’re asking the jury to decide that the individual has a kind of perversion.”

Sexual assault survivors who spoke outside the Montgomery County Courthouse in Norristown, Pennsylvania, maintained that the distinction between yes and no is much more clear.

“Consent is a freely given yes,” said Promoting Awareness Victim Empowerment (PAVE) founder Angela Rose, adding that Cosby’s defense has been playing a game of “victim blaming and shaming.”

“Let us not forget regardless of the outcome today, this case is a huge step forward for survivors of sexual assault,” added PAVE activist Delaney Henderson.

Cosby’s defense team has based their arguments on the idea that Constand’s relationship with the comedian was romantic in nature and, therefore, their encounters were consensual.

But nearly 50 percent of rapes were perpetrated by an attacker known to the victim, including friends, relatives and partners, according to the Centers for Disease Control and Prevention. Further, the Rape, Abuse & Incest National Network reports that approximately 60 percent of rapes are never reported to the police. Even in attacks that are reported, there is only a 16 percent chance an alleged attacker will go to prison.

Constand’s case represents a conundrum for victims of sexual assault: When to speak up if a crime, or perceived crime, has occurred.

“Ever since I was a little girl I was told it was my responsibility to determine when and how to have sex and to really fear the interaction because of the whole notion that boys will be boys,” said Elicia Gonzales, a Philadelphia-based activist.

“When you place so much responsibility on the person who is coming out as having been raped, then it diminishes that person’s chance and ability to come forward because they feel ashamed.”

Gonzales was date raped as a teen, but she didn’t think to label it that until she became an adult. In her youth, she wanted to kiss the popular boy at a party. He wanted more. Rather than resist, she went along with it to avoid “being rude” or hurting his feelings. It was a tacit agreement Gonzales regretted until a friend expressed how sorry she was after hearing the story.

“I can relate to feeling ashamed and embarrassed, like I did something wrong,” she said. “I didn’t want people asking ‘Why did you let him do that to you?'”

Part of the problem, she said, was the consistent “self-blaming and self-critique that is already experienced when someone is assaulted,” Gonzales said. “It makes it completely impossible to come forward when you’re bombarded with messages that.”