As far as I understand the situation between Donald Trump and EJ Carroll she has, very publicly, accused him of rape but there is no conviction or anything else "supporting" that accusation (e.g., a police investigation because a crime likely has been committed).

Typical for Donald Trump MO he has then "retaliated" by calling Carroll ugly and a liar etc., and for that Carroll has opened a civil case against Trump for libel, slander or something like that? And she even won that case in the lower court.

What I don't understand, neither from a legal, nor a moral/philosophical, point of view (please don't close the question as OT for this part, the moral underpinnings of a law are interesting when judging a case) is that it isn't libel to accuse someone of rape but it is libel to respond in an "aggressive" way to being accused of rape!?!? Where I live, accusing someone of rape in public would most definitely be libel and responding to such a grave accusation the way Trump did would probably be considered excusable/a non-crime, a kind of verbal self-defence.


3 Answers 3


Falsely accusing someone of sexual assault or rape can be defamation.

Trump even counter claimed against Carroll because of her statement that he "raped" her.

However, that suit was dismissed by the judge because Carroll's statement was "substantially true."

This was not a criminal conviction of rape. A jury made a civil finding in Carroll's primary suit that Trump digitally (i.e. with a finger) penetrated her. The judge held that this fact can "constitute 'rape' in common parlance, its definition in some dictionaries, in some federal and state criminal statutes, and elsewhere."

For the purposes of defamation law, which is all about conveyed meaning, the word "rape" can be understood more broadly than how it is defined as a particular criminal offence in a particular jurisdiction.

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    – Pat W.
    Commented Jan 29 at 11:32

there is no conviction or anything else "supporting" that accusation

The First Case

How did the other court came to the conclusion "the jury had found he digitally penetrated her"? Are there any physical or technical evidence supporting that?

There was no conviction. But, there was other evidence supporting that accusation. This is why she won the case. The Wikipedia article on the case summarizes the evidence in detail. She had, for example, a dress with semen on it, that she was wearing that day. Also, sworn testimony is evidence that provides a basis for a jury verdict. Physical evidence is not required.

So Trump is convicted of a sex crime in a civil case!? How can a sex crime be handled as a civil case? Aren't the burden of proof completely different in civil cases and criminal cases? In civil cases you just need your claim to be more likely than the other party's claim ("51 %" so to speak) while in a criminal case it must be beyond reasonable doubt.

Many things that are crimes, including rape, can also be the basis of lawsuits for money damages. If you are convicted of a crime beyond a reasonable doubt you can go to prison. If you are found liable in a civil case but are not convicted of a crime, you just owe money damages and don't go to prison. One of the most famous examples of this is the O.J. Simpson murder case where he was acquitted in a criminal trial of murdering his wife, but was found to be civilly liable of murdering his wife.

The jury in the first lawsuit found that her accusations were true, i.e. that Trump raped Carroll. Thus, his claim that she was a liar was false. Falsely accusing someone of lying is defamatory. Accusing someone of rape is only defamatory if that isn't what happened. But, in this case, the jury found that he did rape her.

Also, Trump did countersue in the first case, accusing her of defaming him, and lost. He lost because the jury found that her accusation was true.

Statute Of Limitations In The First Case

The statute of limitations issue has two parts.

First, New York created an exception to its usual statute of limitations for civil lawsuits arising out of old rape cases in a narrow window of time that she used.

The criminal statute of limitations of rape cases had expired, so no criminal charges could have been brought at that point.

Second, the statute of limitations for defamation runs from the time that the defamatory statement is made. Trump raped Ms. Carroll many years earlier. But he accused her of lying shortly before her lawsuit was filed. So the statute of limitations for the defamation lawsuit against him had not expired.

New York does not have a criminal defamation statute

The Second Case

In the second case, after the jury in the first case found that Trump raped Carroll and then lied about Carroll being a liar, Trump was sued because he lied again about Carroll being a liar after already losing the first case. Carroll promptly sued him again for the new defamatory statement.

Even while the second case was pending and during the second trial itself, Trump continued to lie and say he was falsely accused.

In the second case, the first case's jury verdict was binding on Trump. So, the only issues that he to be shown in the second case were that Trump repeated his lie about Carroll falsely accusing him, and her damages.

The open and shut nature of the case when he defiantly lied about what happened after a jury had already found otherwise in the first case, is part of the reason that the punitive damages award against him ($65 million) was so high.

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    @Nat digital penetration is the legal term being used. Fingering (the common day term) is analog to a handjob (manual stimulation of the penis). The dress implies that both were being done. Commented Jan 27 at 20:09
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    Yeah, the dress thing appears to have been thrown out pretty quickly -- this opinion doesn't appear to even mention DNA.
    – Nat
    Commented Jan 27 at 20:25
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    Just found where the judge explicitly stated there was no evidence that there was semen on the dress. This claim should be removed from the answer. theguardian.com/us-news/2023/feb/15/…
    – Shamshiel
    Commented Jan 27 at 23:44
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    @Shamshiel: The clearest explanation was in the paragraph starting on Page-43 of this PDF: "Mr. Trump’s own words from the Access Hollywood tape [...] “c[ould] do anything” [...] including “grab[bing] them by the pussy” and (b) he considers himself to be a “star” – could have been regarded by the jury as a sort of personal confession as to his behavior. Thus, there was ample, arguably overwhelming evidence, that Mr. Trump forcibly digitally penetrated Ms. Carroll [...]".
    – Nat
    Commented Jan 27 at 23:45
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    Basically, the jury rejected most of the claims -- presumably for lack of evidence. Except the claim that Trump "grab[bed] [her] by the pussy", because Trump appears to have claimed that he did that sort of thing in the tape.
    – Nat
    Commented Jan 27 at 23:47

that it isn't libel to accuse someone for rape but it is libel to respond in an "aggressive" way to being accused for rape!?!?

Because the responding in an "aggressive" way is a separate matter. You seem to be confused by some notion of "turnabout is fair play", i.e. if I accuse you of something, you get to accuse me of things, and you get a "free shot" to do that since I did it to you. That is complete nonsense.

Imagine if that were so? Everyone accused of rape would respond by "outing" and relentlessly slut-shaming the accuser in all manner of media. This would have a chilling effect on rape accusations, as you can certainly see.

Where I live, accusing someone for rape in public

"in public"??? You misunderstand what's happening here. Americans have a BIG problem with secret courts, private star chambers where corrupt officials prosecute citizens in darkness. Think that through for a minute.

I'll give you another minute.

If you don't have secret courts, that means every docket of every court is visible to anyone who shows up at the courthouse and asks for it. And journalists do that. OK, that's just life in a free country. It is an inevitable consequence that any legal action against a famous person WILL be found out and reported on. Cannot be stopped.

See? In most cases, the victim just wants this to be over. They aren't out there stirring it up… they have nothing to do with it getting noticed. But since this can't be prevented, it's an unavoidable consequence, and it already weighs on victims.

So this really puts what you're saying in a new light, and I wonder if you really mean to say it.

  • Since it is reasonably foreseeable that a famous person's name on a court docket will be noticed by media, a victim is defaming the perpetrator merely by seeking justice.

  • The perpetrator is entitled to carte blanche to defame the victim, a second victimization.

  • If you are a victim, and don't want your reputation destroyed, don't seek justice.

Do you really mean to say that?

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    AFAIK Carroll published her accusations in a magazine with a high circulation. That is not comparable to tell a friend something like that.
    – d-b
    Commented Jan 28 at 8:24
  • Regarding your second point, you are VERY free to say basically anything in a court room when you are the accused, without it being defamation. And if you are a famous person what you say in a court room will be widely reported. C.f. the Johnny Depp-case.
    – d-b
    Commented Jan 28 at 8:54
  • Note what I'm quoting. It is you who chose to speak in the general case, about the moral underpinnings of the law. This is me addressing the general case. Commented Jan 31 at 19:11

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