There is a murkiness to a Manhattan federal jury’s head-spinningly quick verdict finding Donald Trump liable for sexual assault and defamation against the former Elle magazine advice columnist E. Jean Carroll.
The jury did not find, even on the modest “preponderance of the evidence” standard applicable in civil cases, that Trump raped Carroll — meaning forcible intercourse — as she alleged. She said the assault happened approximately 27 years ago in a lingerie-section changing room at Bergdorf Goodman, a luxury department store in midtown Manhattan. Yet the jury did find that Trump sexually abused and forcibly touched Carroll, which is sufficient to support the claim of battery under New York law.
Rape was the main allegation in the case. The fact that it wasn’t established to the jury’s satisfaction is naturally being emphasized by Trump apologists as a death blow to Carroll’s credibility and, they suggest, his ticket to having the case thrown out on appeal.
The truth is more complicated. Because so much time elapsed between the time the alleged assault happened in 1996 and when she went public about it in 2019, there could be no forensic corroboration. Nevertheless, pursuant to a ruling by Judge Lewis Kaplan (a Clinton appointee), Carroll was permitted to call two other women, Jessica Leeds and Natasha Stoynoff, who claimed that Trump sexually assaulted and inappropriately touched them, in 1979 and 2005, respectively. Judge Kaplan also permitted the jury to hear Trump’s lewd remarks on the infamous Access Hollywood tape that surfaced during the 2016 campaign. In it, Trump bragged about being sexually aggressive with women. Neither these alleged victim witnesses nor Trump’s recorded remarks suggest that he raped anyone — rather, they draw the line at less heinous though still condemnable forms of assault.
The jury thus appears to have credited Carroll’s story that Trump attacked her, a version of events that was supported by two witnesses to whom Carroll reported contemporaneously after the incident — one, in fact, less than ten minutes later. But given the lack of physical evidence to corroborate Carroll’s account, the jury found for her only to the extent that she had support in the victim testimony and Trump’s own recorded words — forcible groping and touching, but not rape.
Trump continues to insist that the incident never happened and that he has no idea who Carroll is — notwithstanding the black-and-white photograph, admitted into evidence, of the two of them chatting amiably at a party in the late Eighties (in the presence of their then-spouses), as well as Carroll’s testimony that they ran in the same New York media circles back in those days.
Under the circumstances, it is not possible for anyone other than Trump and Carroll to know what truly happened. In our justice system, however, we entrust the resolution of such controversies to jurors drawn from the community, under the supervision of a judge who advises them on the law. Here, while it’s always possible for a jury to be wrong, the panel was discriminating. It found for Carroll where it was confident she was corroborated, but not on her most extreme claim. To be sure, this finding was based on the comparatively lax civil standard of preponderance of the evidence, not the criminal law’s demanding burden of proof beyond a reasonable doubt. Yet if, as the former president maintains, he’s been railroaded, it’s odd that the New York jurors found in his favor on the central accusation of rape.
In the end, Trump has himself to blame for the contempt he exhibited toward the proceedings. While everyone else involved in the case, including the jurors, dutifully attended each session, Trump blew off the two-week trial, opting to play golf in Scotland and Ireland. Though he found time to carp from the sidelines about the “disgrace” of it all, he never made it to the witness stand, where he’d have been expected to testify under oath and subject to hostile questioning.
Because it was not a criminal case, Trump had the right not to attend. But in a civil trial, unlike a criminal one, if the defendant elects not to testify, the court instructs that a negative inference may be drawn. When allegations are serious, jurors naturally want a defendant to look them in the eye and offer a convincing denial. If a defendant fails to do that, it is common sense that a jury assumes he did not have a good explanation, or was not willing to submit whatever explanation he had to the crucible of cross-examination.
The only words of Trump’s that the jury heard were from his unimpressive performance in the deposition he was required to sit for pretrial, and his salacious braggadocio about sexual aggressiveness on the Access Hollywood recording. If leaving it at that was Trump’s strategic plan, it was a prescription for defeat. The jury not only found for Carroll; the panel of six men and three women, drawn from Manhattan, the Bronx, and Westchester County, also unanimously directed him to pay a combined $5 million in damages for the battery and defamation torts.
Trump is loudly vowing to appeal. However dim the prospects for that may be, it is likely to be years before any final resolution. In the meantime, for the first time in history, a candidate will seek the presidency having been found civilly liable for sexual abuse. This may lead some voters who reluctantly supported Trump in 2020, and especially women, to abandon him. Meantime, Trump must prepare for a civil fraud trial in October involving his financial records brought by New York’s attorney general, Manhattan District Attorney Alvin Bragg’s dubious criminal indictment perhaps early next year, and whatever criminal charges may be brought by the Justice Department’s special counsel and the state prosecutor in Fulton County, Ga.
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