The verdict in the Donald Trump

Mar 23, 2023

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The E. Jean Carroll verdict illuminates the fraught history of the term's legal definition.

This article contains graphic discussions of sexual violence.

On May 9, a jury found Donald Trump liable for sexual battery against the journalist E. Jean Carroll in a civil trial, ordering the former president to pay her $5 million. They did not, however, find Trump liable for rape. The murky, vexed distinction the jury made in that verdict speaks to what has been one of the central conflicts since Carroll came forward in 2019 — and to America's persistent cultural queasiness when it comes to talking about rape.

When Carroll first accused Trump of attacking her in her 2019 memoir, What Do We Need Men For?, she was very clear about the anatomical details of what had occurred in the mid-1990s.

"Still wearing correct business attire, shirt, tie, suit jacket, overcoat," Carroll wrote, "he opens the overcoat, unzips his pants, and, forcing his fingers around my private area, thrusts his penis halfway — or completely, I’m not certain — inside me."

Carroll was equally clear at the time that she was not going to call this attack a rape. Instead, she called it a fight.

"Every woman gets to choose her word," she said on the New York Times podcast The Daily in June 2019. "Every woman gets to choose how she describes it. This is my way of saying it. This is my word. My word is fight. My word is not the victim word. I have not been raped. Something has not been done to me. I fought. That's the thing."

As Carroll would later testify, she's a member of the Silent Generation. For a long time in American history, rape has been associated with shame, guilt, and victim-blaming. It was understandable for her to decide that calling the attack a rape would make it feel worse than it had to.

Still, what Carroll was describing did sound like rape, and it had been committed by the man who was now in the White House. That's a news story.

Accordingly, media outlets talked awkwardly around the question of exactly what to call Carroll's story. It amounted to a rape accusation, said The Daily. It fit the legal definition of rape is what I went with. (As we’re about to see, "legal definition" was a fuzzy word choice on my part.)

The statute of limitations had long since run out on filing criminal charges against Trump by the time Carroll came forward about his attack. She sought remedy from the civil court system instead, and as she did so, she began to change her preferred terminology. In November 2019, she filed a defamation lawsuit against Trump accusing him of lying about not assaulting her. The filing repeatedly used the word "rape" to describe Trump's attack.

In 2022, in an acknowledgment of the massive social tide swell of the Me Too movement, New York State passed the Adult Survivors Act, which reopened a one-year window for survivors of sexual assault to file civil claims against their attackers. Carroll promptly filed another lawsuit against Trump, this one suing him for rape. When she took the stand to testify against Trump in civil court this April for both suits, she began by saying, "I’m here because Donald Trump raped me."

We can see some of the ambivalence Carroll expressed around the word rape echoed, though, in the jury's choice to find Trump liable for sexual battery but not rape. To understand the context for the jury's decision, we’ll have to dig into the weeds of sexual assault law terminology. Once again, be warned that this gets graphic.

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New York state criminal statutes generally divide sexual assault into several categories. Loosely speaking, rape means penetrative penis-in-vagina sexual intercourse performed by physical force. Aggravated sexual abuse refers to any other penetrative sex act performed by physical force, including oral, anal, or digital penetration or penetration by a foreign object. Finally, sexual abuse means forcible sexual contact, usually the touching of someone's intimate or sexual areas, without penetration.

The reason we have these categories is to distinguish between which kinds of sex crimes we consider most terrible. It is a value system of sexual morality, codified. New York state's value system is similar to the one we see in a lot of other states.

Under this system, the violent penetration of the vagina by the penis becomes a singularly terrible crime. Rape of non-vaginal orifices, or rape of the vagina by anything other than the phallus, become aggravated sexual abuse: crimes with a less emotionally charged label, not as grave, not as serious. You might think of it as analogous to reserving the word "murder" for killings committed with guns, while calling those committed with knives something like "aggravated ending of life."

Legally, though, we tend to treat rape and aggravated sexual abuse fairly similarly. The line is more strictly defined between aggravated sexual abuse, in which the victim is penetrated in some way, and sexual abuse, in which they are not.

"It is common to distinguish between penetration and the lack thereof," says Deborah Tuerkheimer, a law professor at Northwestern University. "There is a widespread understanding that penetration of sexual parts is more harmful and causes more injury to the victim, not only physically but also mentally and emotionally. So it's considered more injurious and more reprehensible. Penetration is the most serious sexual offense."

Carroll has been very clear and consistent on what Trump did to her. She has said that he penetrated her both with his fingers and with his penis — what the New York state criminal code would label aggravated sexual abuse and rape.

At the Trump-Carroll trial, however, the options on the jury's verdict form collapsed the categories of aggravated sexual abuse and sexual abuse into a single category. (It's unclear why the jurors were presented with these options, but traditionally the charges are carefully negotiated by the judge and attorneys for both sides. The court seems to have used the term "sexual battery" on the jury form as an umbrella category for both rape and sexual abuse.) The jury was asked to determine if it was more likely than not that Trump had raped Carroll (penetrated her with his penis) and if it was more likely than not that he committed sexual battery (touched her intimate areas, either with or without penetration).

"In a criminal prosecution, getting this granular makes a huge difference," says Tuerkhimer. "In a civil trial, would a jury have cared? Would they have awarded her more damages? It's hard to say."

These categories mean one of the big questions of this decision became "Did the attacker use his genitals or his hands to attack the victim?" It's worth asking why we consider that question to be the most important issue for a legal system to focus on when deciding how to handle sex crimes.

The current international standard on rape law comes from the United Nations’ 2011 Istanbul Convention. There, rape is defined as "all forms of sexual acts which are performed on another person without her or his freely given consent and which are carried out intentionally." In many countries, however, and in many US states, this definition is modified by degrees: degrees of contact, of penetration, of which appendages touched which orifices, of how forcefully the attacker overcame the victim's lack of consent. It generally takes active feminist campaigning to get to a definition closer to the UN's standard.

In the US, the FBI's legal definition of rape persisted unchanged from 1929 to 2013. Just 10 years ago, "rape" used to mean "the carnal knowledge of a female, forcibly and against her will." Under that definition, victims were all female. Since "carnal knowledge" in legal statutes meant "heterosexual penetrative intercourse," all rape was vaginal. Sex performed without the consent of one party wasn't necessarily rape, as long as it wasn't too violently "forcible." The definition only changed after years of protest from feminist groups like the Women's Law Project and the Feminist Majority Foundation.

In New York state specifically, there is at least one campaign underway to overhaul the penal code with an updated definition of the word rape. A bill currently making its way through the state senate says it "removes the penetration requirement from the rape statutes, redefines rape to include oral and anal sexual conduct within the definition of rape and makes conforming changes throughout various areas of law."

Tamika Payne, the acting executive director of the New York State Coalition Against Sexual Assault, notes that changing a legal definition is a delicate operation that can have massive ripple effects.

Other groups have made similar critiques. In an open letter from 2013, when the so-called "Rape Is Rape" bill first reached the New York State Assembly, the District Attorneys Association of the State of New York cautioned that bringing rape and aggravated sexual abuse into the same legal category would make it harder to sentence perpetrators to consecutive prison terms.

"We are very supportive of the elimination of the penetration requirement in New York's rape statutes," says Payne. "We do not want laws that are exclusionary. We want them to be fully comprehensive, include all sexual violations, not have gendered language, so that we are protecting those who identify as men, those who identify as women, and those who are gender fluid. However, we are supportive of going about that in a way that would minimize unintended consequences of a major overhaul."

The delicacy of this issue, the extreme parsimony of each definition, the careful precision around what exactly we are willing to call a rape — all of it speaks to how little US culture wants to believe that rape exists. We are behaving as though if we make rape a specific enough word, no acts of sexual violence will fit into the category it describes, and then no one will have to admit to having experienced rape at all. As if people who commit aggravated sexual abuse did not rape, and people who survived aggravated sexual abuse are not rape victims. And all these choices allow us to think of the problem as less horrible than it really is.

"When you look at how society communicates," says Payne, "you see things like, ‘Oh, well, it was just fondling. It was just this.’ It's like the only really bad thing is way up here."

Donald Trump is, if nothing else, highly skilled at knowing how his base communicates. At a CNN town hall the day after the jury's verdict, Trump insisted, "They said, ‘He didn't rape her.’"

Payne says her organization's mission aims for a different default. "Every person has a right to bodily autonomy, and should and must give consent to be touched," she says. "When we say we’re working toward a world free from sexual violence, that means we’re working toward eliminating the ‘just’ in daily conversation."

Between November 2019, when she came forward with her accusation, and November 2022, when she filed a civil lawsuit against Donald Trump alleging rape, E. Jean Carroll changed her mind about the term. (Carroll did not respond to a request for comment from Vox.) The apparent transformation in her thinking is emblematic of a larger feminist attempt to change the way we use this word: as a mark of shame not on the victim but on the attacker; not as a piece of vocabulary that re-enshrines the primacy of heterosexual sex, but as a label for a category of violent crime.

The ambiguous verdict speaks to how far there is to go.

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