E. Jean Carroll’s Sexual Assault Case Against Trump Does Not Have a Good LEGAL Basis
Unfortunately, sexual assault cases are difficult to prove — to meet a legal standard for conviction without solid evidence – such as witnesses, physical injuries, and biological evidence. Minimally, the cases are based on what she said/he said. And that does not generally meet the threshold of “beyond reasonable doubt.”
During the confirmation hearings of Justice Brett Kavanaugh, we heard the mantra that a woman should always be believed … period. That is feminist nonsense — and contrary to American justice, that requires proof of guilt.
Trump has never been charged with criminal sexual assault. That is because E. Jean Carroll did not seek justice at the time – or in the 30 years since the alleged event. She has now filed a civil lawsuit alleging sexual assault – and she wants unspecified monetary damages for claims of harm.
In a civil suit, the threshold is lowered to “the preponderance of evidence.” The problem is that there is no evidence – and if there was, it is lost in the annals of time.
Carroll’s attorneys are basing the case on the testimony of friends she is said to have told long after the time of the alleged incident. That is nothing more than they said/she said/he said. Their biases and credibility are no more or less compelling the Carroll’s. They are not hard evidence.
The second strategy is to try to establish a “pattern of behavior” by incorporating the testimony of women who had similar experiences with Trump. The problem is that their experiences were not entirely similar to the allegations put forth by Carroll.
Also, the judge allowed that testimony — in addition to the so-called Hollywood access tape on which Trump was heard bragging about his sex appeal to women. It was a controversial call by the judge since such extraneous information is normally barred. This could be the basis for an appeal.
Carroll has – in my judgment – a fatal flaw in her claim. She cannot recall the time and date – even the month – of the incident. That seems incredulous. I see it as more of a strategy to prevent Trump from providing information to establish that he could not have been there on a specific date,
The fact that she never filed a police report works against her story. And why did she wait 30 years to file a civil suit, and only when Trump is a presidential candidate and not very popular in New York City – from which the jury pool is drawn?
I also find the entire description of rape in a changing room in the lingerie department of a major department store during shopping hours to be odd. Why did she not yell out? Surely, she did not fear for her life. And why – by her own admission – did she willingly enter the changing room with him? Was there an appearance of consent?
Having said all that, I am not defending Trump against being a boorish sexist. I am not arguing that he is not capable of bad behavior. That should come as no surprise. I am not even concluding that he did not do the things Carroll alleges.
What I am saying is that it is equally possible that Trump is the victim of a lawsuit motivated by money, political animosity and advantageous professional publicity.
I do not give Carroll or Trump a judgment call based on credibility. There is just no way to divine the truth. My view of the case is not founded on the admiration of Trump but despite my lack of admiration. But when it comes down to nothing more than what she says and what he says, the American legal system bends – or should bend – in favor of the defendant.
I would not be surprised that a majority of a New York jury would decide for Carroll largely on the basis of dislike for Trump. That is a possibility – an unfortunate one in terms of true justice.
If Trump does not win at this level, you can bet on an appeal. This could be making news for years to come.
So, there ‘tis.