BOSTON — Bill Cosby was released from prison when his conviction that he drugged and assaulted a woman was overturned. Quarterback Deshaun Watson landed a record-setting $230 million contract, despite an investigation into allegations he assaulted 22 women. Celebrity chef Mario Batali was acquitted this week on just the second day of his sexual assault trial in Boston.
Nearly five years into the #MeToo era, former prosecutors, legal experts and victims’ advocates say prosecuting sexual misconduct cases has proven to be no easier than before the reckoning that ignited a firestorm of accusations against powerful, seemingly untouchable men.
Cases such as Batali’s, if nothing else, reinforce how the criminal justice system remains “an extremely imperfect tool” for addressing the needs of survivors, said Emily Martin, a vice president at the National Women’s Law Center, a Washington, D.C.-based advocacy group.
“Failure to get a criminal conviction doesn’t mean that abuse didn’t happen or that it was okay,” she said. “It will often be extremely hard to prove sexual misconduct beyond a reasonable doubt, especially given the gender stereotypes that lead many people to be especially distrusting when women share their experiences of sexual assault.”
Suffolk County Assistant District Attorney Ian Polumbaum, who helped prosecute Batali, declined to comment specifically about the case Wednesday but said sexual assault cases are among the most challenging to prosecute.
“Sexual assault survivors are still trusted less than any other kind of crime victim,” he said. “That’s the perception we’re always fighting. Part of it is public attitudes, part of it is the private nature of the crime in most cases.”
Accusing a person of wealth or stature only adds to the challenge because of the heightened public attention and the increased scrutiny of the victim’s alleged motives, Polumbaum said.
“We’re not afraid to bring the tough cases if they’re supported by evidence,” he added. “And we hope that survivors are not deterred from coming forward, either.”
Batali’s case also reinforces how crucial the credibility of the accuser is in a misconduct case, especially when there’s scant additional evidence or witnesses to support the claims, says Laurie Levenson, a former federal prosecutor in California who is now a professor at Loyola Law School in Los Angeles.
The former Food Network personality Batali, 61, was accused of aggressively kissing and groping a woman while taking a selfie at a bar in 2017. Boston prosecutors largely relied on photos taken at the bar that night and the testimony of the now 32-year-old software company worker who accused him of the misconduct.
But Batali’s lawyers honed in on the woman’s pending civil suit against Batali, which seeks more than $50,000 in damages, as well as her recent admission that she’d tried to get out of jury duty in another criminal case by claiming to be clairvoyant and, in a separate incident, faked lease documents just to get out of paying a $200 gym fee.
“These cases are never going to be easy,” Levenson said. “But even in the #MeToo era, you need credible victims.”
Levenson hopes the Batali verdict serves as a cautionary reminder to abuse survivors that they will always be held to a higher standard, especially in high profile cases.
“There’s more temptation in these cases to go off course, and by doing so, you undercut the credibility of your own case,” Levenson said. “The whole celebrity nature of it leads victims to do things like offer to sell their story, make demands for money or somehow sensationalize what occurred.”
But Stewart Ryan, a former assistant district attorney in Montgomery County, Pennsylvania, who helped prosecute Cosby, argued a sexual abuse survivor also seeking damages in a civil lawsuit should be viewed no differently than someone who was hit by a drunk driver suing the defendant while they face criminal charges.
He also stressed the rate of false reports of sexual assault are “minute” compared to the “far greater percentage of survivors” who never report an attack at all.
“One reason, unfortunately, is the sort of tactics employed here, questioning the motives of a survivor with questions wholly unrelated to whether or not a sexual assault in fact occurred,” Ryan said of the Batali defense strategy.
The Batali acquittal parallels another high-profile #MeToo case in Massachusetts that fell apart over issues involving the accuser.
In 2019, prosecutors were forced to drop indecent assault and battery charges against actor Kevin Spacey after his teen accuser refused to testify to being groped by the “House of Cards” star while working as a busboy at a Nantucket bar.
Meanwhile, actor Cuba Gooding Jr. is poised to avoid jail time after pleading guilty last month to forcibly kissing a worker at a New York City nightclub in 2018.
Even disgraced Hollywood mogul Harvey Weinstein’s watershed #MeToo conviction in 2020 could be in doubt, with a New York court expected to rule soon on his appeal.
“Sometimes people think since the Weinstein trial and conviction that we are in a different time,” said Michelle Simpson Tuegel, a Dallas-based attorney who has represented gymnasts abused by former USA Gymnastics doctor Larry Nassar and other victims.
“People are definitely more aware and survivors are more supported,” she said. “But by no means are we seeing the level of accountability, especially for people who are super wealthy, very powerful, and who are known to the public.“
