How “Me Too” Evidence Can Empower Survivors of Sexual Assault in Court

Bill Cosby walks through a courthouse in handcuffs.
Bill Cosby is taken away in handcuffs after being sentenced at the Montgomery County Courthouse on Sept. 25, 2018, in Norristown, Pennsylvania. Mark Makela/Getty Images

The impact of the #MeToo movement in American culture is undeniable, and the high-profile prosecutions of Harvey Weinstein, Bill Cosby, and other powerful men suggest it’s a legal success, as well. But the broader impact of the movement will depend upon lawmakers and judges’ willingness to incorporate its principles into the American legal system. Some activists have argued that prosecutors should be able to use “Me Too” evidence—allegations that a defendant committed a similar offense against individuals other than the victim in the case at hand. This evidence isn’t easily admissible. But prosecutors may be able to persuade courts that the voices of other victims can help a judge or jury determine the truth of an accusation.

A key roadblock to “Me Too” evidence is the legal bar against a “bad person” inference. Prosecutors generally can’t use evidence of past crimes to convince a judge or jury that a defendant is probably guilty, since he’s such a rotten guy. But Congress has carved out two exceptions to the general ban of this inference, which apply to sexual assault cases and child molestation cases. So if these two types of cases are heard in federal courts, “Me Too” evidence would be directly admissible.

Some states have passed similar exceptions to this rule. And in states where no such exception exists, there are still viable ways to admit “Me Too” evidence. Prosecutors can introduce information about a defendant’s past victims not to show that he’s a “bad person,” but to prove something else.

Evidence can typically be introduced to prove several things, including “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” And additional victims can show that a defendant had the intent to commit sexual assault. In Bill Cosby’s second trial, multiple women testified that “Cosby gave them pills that rendered them unconscious or semi-conscious and then penetrated them.” Their testimony demonstrated Cosby’s intent to penetrate the victim without consent.

There are other grounds to make “Me Too” evidence admissible. The evidence can be introduced to prove the defendant’s signature method of conducting the crime. If “Me Too” evidence shows that the defendant previously committed a crime, and the present offense matches that crime in idiosyncratic ways, then the inference is that the defendant committed the present offense as well. In other words, the method is so unique, and the similarities between the previously alleged crimes and the present one are so distinct, that nobody else could have done it. In Cosby’s case, for instance, more than 50 women described a very similar act in a period spanning five decades. These “Me Too” witnesses together conveyed a convincing message: Nobody else other than Cosby could have committed all of these acts.

As Harvard Law School professor Jeannie Suk Gersen has written, the strength of “Me Too” evidence lies in “the power of numbers across time.” While a victim’s lone account of the offense might not be believed, “the choruses of ‘me too’ ” make each account much more believable. “Me Too” witnesses together convey a potent message that “what you say happened to you happened to me, too, and so it is more likely that we are both telling the truth.”

But “Me Too” evidence is more than a powerful tool for prosecutors. Crucially, this evidence is necessary to help level the playing field for a solitary victim. As the Supreme Court of Indiana explained, the exceptions to the general ban on “bad person” evidence in sexual assault cases help the victims who have to recount “unspeakable acts.” These victims might be too frightened to testify about the full details of the assault, subject to aggressive cross-examination, in an intimidating courtroom. They may well fear that no one will believe them when they are a lonely voice in the presence of their attacker. “Me Too” evidence turns their solitary voice into a chorus, bringing in other victims to lend credence to their testimony. It empowers a solitary, vulnerable, and intimidated victim.

More importantly, courts’ admission of more “Me Too” evidence would convey a significant message to the public, which reinforces the #MeToo movement’s impact. The movement may have already influenced courts’ willingness to allow more witnesses to testify about their stories. In Cosby’s first trial, only one additional woman was allowed to testify about Cosby’s misconduct. The case resulted in a hung jury. In Cosby’s second trial, which occurred after the #MeToo movement had taken off, the judge permitted five additional women to testify. The jury found Cosby guilty.

If we continue to see more evidentiary rulings that allow “Me Too” evidence, the impact would be significant for the public. More survivors of sexual violence might be willing to come forward if they see that their words and courage could help convict their offenders, even if they were not the victims who brought the case to court in the first place. When the survivors can tell their “Me Too” stories to judges and juries, Americans will see the concrete effects of the movement. These accounts shouldn’t be relegated to the internet. They belong on the witness stand, as well.

This article has been adapted from the American Criminal Law Review Online.