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Donald Trump’s sparklemagic legal team has done it again! They’ve managed to get their famous client’s name in the news next to Jeffrey Epstein’s, while at the same time taking the position that rape is not a “distinct injustice.”
Slow freakin’ clap.
This unfortunate own goal occurred in advice columnist E. Jean Carroll’s second lawsuit against the former president.
In Carroll I, the plaintiff sued Trump in 2019 for defamation after he called allegations that he raped her in 1996 a “hoax” and called her a liar whom he had “never met.” After which the then-president ducked the process server, asserted absolute immunity from civil suit, claimed that New York courts had no jurisdiction over him as a Florida resident, removed the case to federal court on the theory that he was acting within the scope of his official duties when he implied that Carroll was too ugly to sexually assault, and generally made himself odious to the court.
On Thanksgiving 2022, New York’s Adult Survivors Act (ASA) came into effect, allowing a one-year period during which survivors of sexual assault whose claims were previously time barred could bring civil suit against their alleged attackers. The plaintiff immediately filed Carroll II, adding a battery claim, as well as a second defamation count, since now-private citizen Trump was unwise enough to repeat the same allegedly defamatory comments on his knock-off Twitter site in October 2022.
After a stern warning from US District Judge Lewis Kaplan to quit screwing around already, Trump’s lawyers Alina Habba and Michael Madaio finally entered their appearance and filed a motion to dismiss on the theory that the ASA violates the Due Process Clause of the New York State Constitution. They argue that New York’s legislature has traditionally been hostile to claim revival statutes, and, while conceding that rape is bad, they argue that the law “does not remedy any specific, identifiable injustice, but merely provides a second bite at the apple for claims that have been long since waived.”
They go on to take a swipe at Carroll personally, noting that she was well into adulthood at the time of the alleged assault, and thus “The legislature has provided no reason—nor is any readily apparent—why Plaintiff’s own neglect or refusal to bring an action within the applicable time period should be construed as an injustice against her.” And while they concede that the New York Court of Appeals recently upheld the Child Victims Act (CVA), a similar statute which created a two-year claims revival window for child sexual abuse victims, they argue that the two laws are different because child abuse is a “distinct injustice,” while rape of an adult woman is … not.
Was it wise to utterly disregard a recent decision by Judge Kaplan upholding the CVA in language highly applicable to the instant case? Perhaps not. In any event, Carroll and her lawyers have remedied the omission in their opposition brief.
“As this Court recently explained—in a decision not mentioned at all in Trump’s brief— ‘the test for whether a claim-revival statute runs afoul of the New York Due Process Clause is simply whether the revival statute is ‘a reasonable measure to address an injustice,’” they argue, citing to the now-settled case brought against England’s Prince Andrew by plaintiff Virginia Giuffre for sexual abuse she alleges took place when she was a minor being trafficked by notorious pedophile Jeffrey Epstein. In an order refusing to dismiss the case, Judge Kaplan noted that the state’s hostility to claims revival laws is mostly “historical,” and, more importantly, it is not for the court to determine whether a particular class of plaintiffs has suffered a legally cognizable “injustice.” That decision is for the legislature, which explicitly expressed its opinion when it enacted the both the CVA and the ASA. The court’s analysis is confined to determining whether the law is narrowly tailored to address that injustice.
But since the defendant insists upon bringing it up, Carroll and her lawyers dutifully point out just how preposterous it is to blame victims of sexual assault for not filing claims within the relatively short window provided under New York’s former law. For reasons clear to literally every woman, for most of human history there was a strong incentive to not speak out about sexual assault:
Carroll knew then that sexual assault was pervasive. She also knew that men have been assaulting women and getting away with it since before she was born. And she knew that while a woman who accused any man of rape was rarely believed, a woman who accused a rich, famous, violent man of rape would probably lose everything. She therefore reasonably concluded that if she accused Donald Trump of rape he would bury her in threats and lawsuits, and she would probably lose her reputation, not to mention everything she had worked for and achieved.
“While Trump would have the Court blame adult survivors of sexual assault for not speaking up and filing claims sooner, there is no basis in law or fact for that position, and in all events that moral judgment is not his to make,” they go on, twisting the knife. “While Trump may not grasp (or care about) the profound barriers that impede many survivors of adult sexual assault from filing suit, his opinion ‘was not shared by the Legislature.’”
So, mad props to Trump’s lawyers for getting their client’s name in the paper next to notorious abusers Harvey Weinstein and Jeffrey Epstein. Another round well-played.
Carroll v. Trump I [Docket via Court Listener]
Carroll v. Trump II [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.
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