Cosby, Kelly, and Racial Injustice in Sexual Assault Cases

The Tarnished Media Maven Bill Cosby’s career began in the 1960s and spanned six decades through stand-up comedy, television, film and music. With a career covering so many areas through such a large duration of time, your age will indicate which Cosby you’re most familiar with. In her 60s at the time of this writing, my mother still recalls Cosby’s comedy performances on specials such as 1968’s “To Russell, My Brother Whom I Slept With” and 1983’s “Bill Cosby: Himself.” Now in my late 30s, I vaguely remember watching “Fat Albert” as a child. I greatly recall however, going to the theater to see such films as “Ghost Dad” and the universally-panned “Leonard Part 6.” And who could forget watching Dr. Cliff Huxtable and family dance to “Kiss Me” each week on NBC’s “The Cosby Show.” For many young Black children in the 1990s, their first interaction with college was checking in on the weekly happenings at Hillman College, the fictional HBCU in the Cosby-produced show, “A Different World.” And of course, there were the memorable Jell-O Pudding Pops ads, which featured the comedian for almost 30 years. In the Black community, Bill Cosby was in very rare air. He occupied a space reserved for only the most excellent in our community. A space filled with other luminaries such as Oprah Winfrey and Michael Jackson. Bill Cosby was more than an icon; he was a Black icon.

As a result of Cosby’s iconic stature, when he was formally charged in 2015 of three counts of aggravated indecent assault, the Black community took it especially hard. It’s not as if allegations of sexual assault were new for Cosby. For as long as his career has spanned, so have the allegations of sexual misconduct, including rape and drug-facilitated sexual assault. For decades however, fans and colleagues alike willfully turned a blind eye to these allegations. It would not be until 2018 that Cosby would finally be held to the law and found guilty for sexual misconduct that happened 14 years prior.

In a 2005 deposition, Cosby admitted to buying Quaaludes (a sedative and hypnotic medication) from gynecologist Leroy Amar for the purpose of giving them to women he wanted to have sex with. Cosby’s testimony would ultimately show a history of coerced sex involving Quaaludes with multiple young women. Cosby would also admit that he knew giving the drugs to others was illegal. Despite being initially sealed, the contents of this deposition would play a role in Cosby’s eventual undoing in 2018, when he was found guilty of three second degree felony counts of aggravated indecent assault against Andrea Constand, a-then employee of Temple University.

The Pied Piper of R&B

While not on the same level of success as Cosby, Robert Kelly is yet another fallen Black icon, buried under years of sexual misconduct accusations. Kelly’s career began in 1989 as a member of the R&B group Public Announcement. In 1993, he would leave the group and embark on a solo career that lasted three decades. During that time, Kelly would sell over 75 million records, placing him at the top of the list of R&B male artists in the 1990s and gaining him the nickname, the King of R&B. In addition to R&B, Kelly would also successfully dabble in gospel and was a mainstay in the hip-hop world, collaborating with some of the most successful artists of the genre including The Notorious B.I.G., T.I. and Jay-Z.

As with Cosby’s, Kelly’s history of sexual misconduct was not necessarily a secret. In 1994, a then 27-year-old Kelly married fellow singer Aaliyah, a controversial union considering Aaliyah was only 15 at the time. Kelly would even produce Aaliyah’s debut album; the boastfully titled, Age Ain’t Nothing But a Number. Then, in 2002, R. Kelly’s legal troubles would begin. At the time, he was preparing to release his first joint album with rapper Jay-Z as well as his monumental Chocolate Factory album. It would also be the year that a Chicago newspaper received an anonymous delivery of a videotape that allegedly depicted R. Kelly engaged in sexual intercourse with an underage girl. The “R. Kelly Sextape” would be sold at swap meets and barbershops throughout the country; never mind the fact it was child pornography.

Kelly would not stand trial until 2008 where he was charged with 14 counts of child pornography. At trial, the prosecution needed to prove that (1) R. Kelly was the man in the tape, (2) the girl on the tape was underage and (3) the tape was genuine. R. Kelly’s defense claimed that the singer has a distinctive mole on his back, and as the man in the tape did not have the mole, it could not have been Kelly in the tape. When it was pointed out that you in fact, could see the mole, the defense claimed the marking was a video artifact and not the mole that Kelly has.

The largest element in Kelly’s favor however, was the girl’s unwillingness to testify. Stephanie Edwards (a singer formerly signed to R. Kelly’s label) would testify that the girl in the tape was her niece and was, in fact, underage. Kelly’s defense would respond saying that Edwards’ testimony was a measure of revenge on Kelly for dropping her from his label, further casting doubt in the jury’s mind. So, despite the video showing Kelly’s face and being filmed in a room on a property Kelly owned, the jury found the singer not guilty on all charges.

Kelly’s musical career would continue following this trial. Then in January 2019, the documentary “Surviving R. Kelly” premiered on the Lifetime channel. Over six episodes, the documentary detailed Kelly’s long history of sexual misconduct with underage girls. As a result of the docuseries and a more politically correct climate, Kelly was dropped from his longtime recording label RCA, had his music removed from numerous radio stations and had numerous musical colleagues denounce him.

In February, a new sex tape emerged depicting an alleged R. Kelly involved in sex acts with a 14-year-old girl. At the time of this article, R. Kelly is awaiting his trial for 18 federal charges including child pornography, kidnapping and various sex crimes.

Why us and not them?

The fall of Kelly and Cosby produced a very curious response. While most condemned both men for their heinous actions, a loud voice in the Black community spoke in a more supportive tone. Rather than condemnation, the argument was made that both Bill Cosby and R. Kelly were victims of strategic character assassination and that their convictions were a plot to destroy Black masculinity. Many asked what the point of charging both men for crimes that happened “so long ago” was. Others questioned whether the misconduct even happened, indicating that the accusers did so for financial gain. At the height of the argument was a widely shared meme. The meme featured headshots of white celebrities such as Charlie Sheen, Bill O’Reilly, Harvey Weinstein and Donald Trump. The question asked: Why has “justice” been served to these two Black men but not these white men of similar stature? The fix was in, and the media was attacking the Black community by tearing down their most successful leaders.

The aforementioned meme.

Now, anyone who takes the five minutes of research required to be actually informed on the matter will be able to quickly see the issue with the meme. Not every case of sexual misconduct is equal. At the time of the meme’s sharing, Harvey Weinstein had only been charged and had yet to go through the legal system. Charlie Sheen’s accuser had passed away several years earlier and no charges were filed. Bill O’Reilly committed sexual harassment (not a criminal offense) and had settled his lawsuits for millions of dollars. And Donald Trump hides behind his presidency, boldly reminding the country that a sitting president cannot be charged with a crime. Despite these individual cases however, some continue to live by the time-honored, social media philosophy, “never let facts get in the way of a good narrative.”

To say that Black men have historically been given a tough time in court would be a huge understatement. Black men are more likely to receive tougher sentences for their crimes than others and also are imprisoned at six times the rate of white men, per The Washington Post. The New York Times points out that nearly 1 in 12 Black men, aged 25 to 54 are incarcerated, compared to 1 in 60 non-Black men, 1 in 200 Black women and 1 in 500 non-Black women. Research from the group ThinkProgress shows that in many of the country’s largest cities, Black men are more likely to be treated as criminals, which includes being stopped and frisked by police more often than any other group. And one need not have to look too hard to find numerous cases throughout history that highlight the unfair treatment of Black men in the judicial system; from the Central Park Five (more on them later) to the Trenton Six, six Black men who were arrested for the killing of a store owner and, despite all having rock-solid alibis and not matching the description of the actual killers, were coerced into confessions, found guilty by an all-white jury and sentenced to death (later overturned on appeal).

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So, yes, the argument that Black men are unfairly treated in the judicial system is a valid one that most certainly should be made. But should Bill Cosby and R. Kelly be the champions of this fight? In the words of “The Boondocks’” fictional 10-year-old revolutionary, Huey Freeman:

“Yes, the government conspires to put a lot of innocent Black men in jail on fallacious charges, but R. Kelly is not one of those men!”

And for the simple matter of guilt, neither is Bill Cosby.

Our True Champions for Racial Injustice

Though some may argue that R. Kelly has yet to be convicted and thus it is unfair to write him off just yet, there are still much cleaner choices one can select when arguing that Black men are unfairly treated in sexual assault cases. When selecting a champion for the cause of racial justice in sexual assault cases, the prerequisite should be unequivocal innocence. Unfortunately, the American justice system gives us many options to choose from. Five viable champions for this argument are Kevin Richardson, Antron McCray, Yusef Salaam, Korey Wise and Raymond Santana: otherwise known as the Central Park Five. In 1989 these five boys, then ages 14 to 16, were convicted of the rape of a white jogger in Central Park. The case drew much criticism due to the false confessions that were coerced from the boys. The boys served between six and seven years apiece, except for Wise who was tried as an adult, serving 13 years. In 2002, the charges of all five boys would be vacated after the true rapist confessed from jail. The Central Park Five’s story was recently retold in the Netflix miniseries, “When They See Us.”

There is also the case of the Groveland Four who, in 1949, were accused of raping a 17-year-old white girl, tortured into confessions and convicted by an all-white jury. In 2019, they would all receive pardons for the wrongful convictions. Unfortunately, all four of them are dead; Samuel Shepherd was shot by a sheriff who transported him to a retrial, Ernest Thomas was killed by a mob shortly after the incident, and Charles Greenlee and Walter Irvin both served life sentences.

If you would rather go solo than do the group thing, there is always Archie Williams who in 1982 was convicted of attempted murder and rape in Louisiana. Now keep in mind, three people testified that Williams was at home asleep when the rape occurred, the fingerprints at the scene did not match Williams’, and the sole witness did not point out Williams in two photo lineups. Despite all this evidence, Williams was still found guilty and sentenced to life without the possibility of parole. The wrongful conviction would not be vacated until 2019.

You could also cite the case of South Florida’s Barney Brown. In 1962, 15-year-old Brown was accused of raping a woman and robbing her husband. Due to the woman’s inconsistent and contradictory story that failed to positively identify Brown as the culprit, the teen was acquitted in juvenile court. But a silly little acquittal would not stand in the district attorney’s way. Brown was charged again, this time in an adult criminal court, and the DA got the guilty verdict he was searching for. It would take 38 years for Brown’s conviction to be overturned under double jeopardy laws, making it unconstitutional for a person to be tried again after being acquitted for the same crime.

Of course, if you are looking for something even more “historical,” there’s always Emmitt Till. In 1955, Till was accused of whistling at a white shop owner, Carolyn Bryant. Till was kidnapped, beaten and ultimately lynched by Bryant’s husband Roy and his half-brother, J.W. Milam. While Till never saw the inside of a courtroom, his killers did. But as this was the Jim Crow South, it only took about an hour for an all-white male jury to find both Bryant and Milam not guilty. Five decades later, after the deaths of Till, Roy Bryant, Milam and the entire civil rights movement, Carolyn Bryant would come forth to admit that the most damning parts of her testimony (that Emmitt grabbed her hand and waist) were lies. It should be noted that despite her admission Bryant has never faced any amount of justice for her role in Till’s murder.

These names are just a few of many; the many who have had years of their lives stolen by a justice system that has tortured and tormented to get confessions, ignored evidence and written off alibis on the journey to convict their Black targets. It is no surprise that racial minorities make up the vast majority of those assisted by the Innocence Project, which, since its founding in 1992, has been working tirelessly to exonerate the wrongly convicted through DNA testing.

While the names I’ve listed above may not be as glamorous as those of media barons and R&B kings, these names are the ones that actually make the point that when it comes to sexual assault in America, Black men have been historically railroaded by the system. Next time you wish to make that point on Facebook, skip the Cosby/Weinstein comparison and choose the Central Park 5/Brock Turner one instead.

James J. Wilkerson, J.D. is the director of Staff Diversity and Equity and the Deputy Title IX Coordinator at IU Southeast.

This was first published by “I Taught the Law” at medium.com/i-taught-the-law, “untold stories of the rules, institutions, and people that govern our lives (without too much legalese),” as written by lawyers, law professors, students and other legal professionals.

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