On Tuesday, April 25, 2023, the civil rape trial of former President Donald Trump is scheduled to begin in the United States District Court for the Southern District of New York, in front of Judge Lewis Kaplan.
E. Jean Carroll, a journalist and author, has accused Donald Trump of raping her in a dressing room at the Bergdorf Goodman Department Store in Manhattan sometime between the fall of 1995 and spring of 1996. Trump has denied those allegations, contending at various times that he “did not know her” and she “was not his type.”
The case has been winding its way through the courts since 2019. The first complaint filed by Ms. Carroll contended that Trump had defamed her by falsely denying her accusation of rape. In 2022, Carroll filed a second complaint, which sought to hold him directly responsible for the rape. It is the rape case that is going to trial on Tuesday.
How Is A Case About An Alleged Rape in 1995-96 Getting To Trial Nearly 30 Years Later?
Generally, the statute of limitations for civil claims by adult survivors of sexual assault in New York is three years. However, in 2021, New York passed the Adult Survivors Act, which created a one-year window (from November 24, 2022-November 24, 2023) where the statute of limitations for civil claims of sexual assault was lifted.
On November 24, 2022, Carroll filed her new case against Trump, alleging that he raped her (and defamed her when he denied that rape after leaving the White House). Trump moved to dismiss the case, contending that the Adult Survivors Act violated the Due Process Clause of the New York Constitution. Judge Lewis Kaplan denied the motion to dismiss, holding that the Adult Survivors Act was constitutional.
What Are The Best Facts For Carroll’s Case?
When Carroll’s legal team presents her case, the central part of the case will be her testimony that she was raped by Donald Trump in a dressing room in the lingerie section of Bergdorf Goodman.
A long-time reporter and television host, Carroll is used to public speaking and has repeated her account of the rape in numerous interviews over the last four years, in addition to her deposition in this case. Many people (not on the jury) have been persuaded that she is telling the truth.
But Carroll will be allowed to present more than her testimony that she was raped by Donald Trump.
Two witnesses (Carol Martin and Lisa Birnbach) will testify that Carroll told them of the rape shortly after it occurred, and that Carroll has had a consistent account of the rape for more than 25 years. Carol Martin may be particularly persuasive to jurors over the age of 50. She was the first African-American female local news anchor in New York, several daily WCBS newscasts from the 1970s until 1994. Ms. Birnbach also is famous for writing the bestsellers The Official Preppy Handbook and Lisa Birnbach’s College Book (which was required reading for NY-area college applicants).
Two other witnesses will testify that the former president sexually assaulted them: Jessica Leeds and Natasha Steynoff.
Ms. Leeds will testify that in 1979, she was seated next to Trump on a flight when he sexually assaulted her: “He was with his hands grabbing me, trying to kiss me, grabbing my breasts, pulling me towards him, pulling himself on me. It was kind of a struggle going on… It was when he started putting his hand up my skirt that I realized that nobody was going to save me but me.”
Ms. Steynoff will testify that during an interview with Trump for People magazine in 2005, he “grab[bed] my shoulders and pushe[d] me against this wall and start[ed] kissing me,” and that Trump later “groped” her. Former President Trump moved to have this testimony excluded from the trial, but Judge Kaplan held that under Federal Rule of Evidence 415, evidence of prior sexual assaults by the defendant is admissible in a subsequent civil trial for sexual assault.
In addition, Judge Kaplan held that Rule 415 permitted Carroll to introduce the infamous Access Hollywood interview against former President Trump. In that interview, Trump stated:
“You know, I’m automatically attracted to beautiful…I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star they let you do it. You can do anything…Grab them by the pussy. You can do anything.”
Finally, Carroll will be able to present portions of Trump’s deposition, which was a disaster for him. Prior to his his deposition, Trump repeatedly insisted he wouldn’t have sex with Carroll because “she’s not my type.”
However, at his deposition, when Trump was shown a picture of Carroll from the mid-1990s and asked “Do you recognize her?”, he stated, “That’s my wife.”
Donald Trump literally confused Ms. Carroll for his second wife, Marla Maples, to whom he was married for almost 10 years. He left his wife and mother of his first three children because he was so taken with Ms. Maples’ appearance. It is hard to imagine better proof that Ms. Carroll was Donald Trump’s “type” than his deposition testimony confusing her with his wife.
What Are The Best Facts For Trump?
There are gaps in Carroll’s evidence. She does not remember the date, week, month, or year when the rape allegedly took place. She has not found any witnesses who corroborate seeing her with Donald Trump at Bergdorf Goodman. There are no security photos or videos from the store showing the two of them together.
In addition, if Trump takes the witness stand, he will deny that he ever had sexual contact of any kind with Ms. Carroll. For some jurors, this evidence may be enough to rule in his favor.
Will There Be DNA Evidence Presented?
No. At the start of the case, Carroll’s attorneys filed a portion of an expert report from a DNA expert, that analyzed stains on the dress that Carroll contends she was wearing when Trump allegedly raped her. Carroll’s legal team demanded that Trump allow their experts to extract DNA to compare to the dress. Trump’s attorneys refused, and Carroll’s legal team decided not to press the issue.
As trial approached, Trump’s lawyers made a high-profile demand for access to the rest of the DNA expert’s report. They stated that after they received the report, they would allow Carroll’s team to extract DNA from Trump. Carroll’s legal team declined that offer.
Judge Kaplan held that the Trump offer came far too late. Discovery had long been closed when Trump tried to get the DNA evidence into the case. Judge Kaplan held that Trump’s team was not allowed to second guess their prior strategic choice. As a result, there will be no physical evidence that would prove (or disprove) Carroll’s claim that Trump ejaculated on her dress.
Will Trump Testify?
We still do not know whether former President Trump will testify (or even attend) trial. Carroll elected not to name Trump as witness, instead relying upon clips from the deposition. Trump’s lawyers listed him as a potential witness, but have not taken a position on whether he will actually testify.
If Trump testifies, he would face cross-examination, likely from Ms. Kaplan—a skilled questioner, who elicited very damaging testimony from the former president during his deposition.
Could Trump Be Charged Criminally With Rape?
Yes, it is theoretically possible that former President Trump could be charged with rape, if the Manhattan DA concludes on the basis of the civil trial that there is a prosecutable criminal case. Under New York law, there is no statute of limitations for first degree rape.
When Carroll published her book, she made a formal complaint to the NYPD. Since that time, there is no evidence that the NYPD or the Manhattan DA’s office have taken steps to prosecute the case. It is unlikely that they would prosecute a criminal case unless something happens at the trial that drastically changes the situation.
It likely would take the equivalent of Jack Nicholson admitting on the witness stand that he ordered the Code Red at the end of A Few Good Men for DA Alvin Bragg to conclude that a criminal case should be pursued.
Will the Trial Be Televised, Photographed, or Livestreamed?
No. But the transcripts will be made available to reporters daily.
Ordinarily, at a civil trial, the only thing at issue is money. Here, the stakes are much higher. Depending on how this trial progresses, it may have a huge impact on the 2024 presidential election, the pending criminal investigations of former President Trump by prosecutors in Georgia and by the DOJ, and even the indictment for the Stormy Daniels payments. And it is hard to imagine a settlement of this case short of a verdict, but I suppose we will see.