Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

Last Thursday’s verdict marked a dramatic reversal, and was hailed as a sign of the times. Bill Cosby was found guilty on all counts in the drugging and sexual assault of Andrea Constand 14 years ago. She is one of 60 women accusing the comedian, and the trial represented a second chance after an initial hung jury. In that context, what was on trial was not just Cosby, but also the success and power of the #MeToo phenomena of millions of women from all walks of life stepping forward to report instances of harassment, assault and discrimination. Some viewed the two Cosby trials in the Constand matter as a “before and after” social science experiment, with the factor that changed in between the two trials being the expanding social awareness of the #MeToo message, combined with the fall of many powerful men including Harvey Weinstein, Matt Lauer, Charlie Rose, Al Franken and others. Viewed through that filter, a solid conviction this time around seems to say that the context truly has changed. 

So has it? Is it a breakthrough, and a new era? Have we turned a corner, and set a tone for future cases? Putting it into perspective, the answer is probably “Not so fast.” Cases involving sexual assault, abuse, harassment and discrimination are still notoriously hard to prove, and changes in the landscape of public opinion are important, but not simple or unidirectional. Over the weekend, a New York Times article, one quoting your own humble blog author, addressed the likelihood that the Cosby verdict will not be a bellwether for future cases. The trial included several atypical features: most of all, the five other women who were allowed to testify that Cosby had drugged and sexually assaulted them, but also Cosby’s civil deposition that turned out to be highly incriminating. The case was also tried during “sexual assault awareness month,” with the coffee shop next door to the courthouse distributing cups that read “Believe and support survivors.”

But aside from those unique factors, there are additional reasons why social transitions are not simple. One of the main reasons is that a shift to a new social understanding isn’t uniform, and the shift doesn’t take the whole population with it. Instead, the new narrative generates its own counter-narrative. The results of a Bucknell University study conducted in March show that fully 40 percent of the population now believe that the #MeToo movement has gone too far. The survey also reveals dramatic differences based on party identification, with 76 percent of Republican men feeling it has gone too far. Add to that the earlier survey I wrote about showing a decrease in the willingness of managers to mentor female team members for fear that they’ll be accused of harassment.

Ultimately, progress tends to come with greater polarization.  Civil or criminal cases relating to sexual assault, harassment or discrimination still pose their share of challenges, and the reasons for that highlight some larger lessons on understanding and adapting to social transitions.

Still Tough Cases 

The Cosby cases, of course, dealt specifically with sexual assault. However, the challenges in prosecution apply also in cases that are more broadly focused on other forms of abuse, including sexual harassment and discrimination.

The analysts and law enforcement professionals interviewed in the New York Times article provide a good list of the factors that are often but not always present:

  • A delay in reporting the crime
  • More generally, a substantial passage of time between the incident and the charges
  • The involvement of alcohol or drugs, impairing recall or putting a question mark over consent
  • Other factors which lead jurors to question the victim’s responsibility
  • A strong motivation on jurors’ part to believe that they themselves would not have allowed themselves to be placed in that situation (“just world” thinking).
  • Relatively little in the way of unambiguous physical evidence

And these are only some of the barriers. After all, these are the cases that invented the phrase, “He said, she said.” In addition, there is also the subject of my remarks in the interview with the New York Times, which is the jurors’ awareness that they are applying something more stringent than the public’s standard, and general support for or even belief in the victim can still be accompanied by a “not guilty” verdict if they believe the state has not answered all of their questions and met a high burden of proof.

Illustrating a Larger Fact About Social Change

It is easy, and perhaps reassuring, to believe that once a new social narrative comes to the fore, it seeps into every corner of society and fundamentally updates the public’s understanding. There is the temptation to act as though the broad awareness of harassment and abuse that has come about as a result of the #MeToo campaign has now become the backdrop for litigation touching on these issues.

However, there are two factors that prevent that simple consequence: One, the dominant narrative spawns a counter-narrative, creating tension and polarization; and two, the dominant narrative still needs to be mapped onto the facts of a specific case, and the fit is not always perfect.

The counter narrative is that #MeToo has now #GoneTooFar, with the Bucknell poll data indicating four in ten Americans overall, and substantially greater numbers of men and Republicans, believe that the concern is exaggerated. The broader implication for students of persuasion is to keep an eye on trends, but take care not to oversimplify those trends. Instead, it’s best to treat the state of public opinion as a moment in a large and complex conversation. For every emerging view, there’s always a response. So, make sure to test it in your own venue and assess how it applies to your own case.

Other Posts on Public Attitude Shifts: 


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