E Jean Carroll, the Elle advice columnist who in June accused Donald Trump of raping her in a department store dressing room in the mid-90s, filed a lawsuit on Monday in a New York court. She is suing the US president for defamation.
After Carroll detailed the rape in an excerpt from her memoir, What Do We Need Men For?, that was published in New York Magazine, Trump did what he usually does: he went after her character. He denied the rape and also made assertions that were easily disproven, including that he had never met Carroll. In fact they had met: her memoir, as well as the magazine excerpt, included a photograph of them together at a party in the 80s. He said she was “totally lying” and that he would not have raped her, because she wasn’t his type. He invented strange motives for her statement and seemed to implicitly threaten her when he said that there should be grave consequences for her decision to come forward. “Shame on those who make up false stories of assault to try to get publicity for themselves, or sell a book or carry out a political agenda. It’s a disgrace and people should pay dearly for such false accusations.”
Those statements disparaging Carroll’s character will now be the subject of a court battle, as the judge determines whether they meet the legal standard for defamation – which, for statements made about public figures like Carroll, means that they would need to be both untrue and made with malice. It is difficult to prove a speaker’s state of mind, but malice seems to be one of the only possible motivators for Trump’s statements about Carroll – why else would he comment on her appearance, for example, saying “she’s not my type”? After the lawsuit was announced on Monday, the White House press secretary said: “I guess since the book didn’t make any money she’s trying to get paid another way. … The lawsuit is frivolous and the story is a fraud, just like the author.” Such a vitriolic statement by one of Trump’s representatives could probably be called defamatory, too.
Carroll told friends about the alleged assault at the time, and at least two of them have gone on the record to corroborate her account. But for decades, she didn’t come forward publicly. In her complaint and elsewhere, Carroll says that she considered making her story public during the 2016 election cycle but worried that being credibly accused of rape would make Trump more popular, not less, with a base that expressed sexist contempt for Hillary Clinton and fawning admiration for Trump’s performative crudeness and pantomime of macho virility. She may have been right about that. Carroll also says that she didn’t go to the police when the rape occurred because she was worried that the consequences to her own life would be greater than those for Trump’s. She was probably right about that, too.
The legal system has historically not been kind to survivors of sexual violence. Evidence suggests that police do not take sexual assault as seriously as they do other violent crimes. And accusers, now but especially at the time when Carroll says the rape occurred, can be subjected to humiliating interviews, crude speculation about their own sex lives, and character assassinations from defense attorneys. That’s in the criminal justice system. Civil law is often not much better. In fact, when defamation suits arise in the case of sexual assault accusations, it is usually the perpetrator who sues the accuser, saying that she is lying and seeking money from her – not the other way around. (Full disclosure: Carroll and I are represented by the same lawyer, Roberta Kaplan.)
Carroll’s suit takes a different approach. Defying a long history of the legal system being used to silence women, Carroll’s lawsuit proceeds from the assumption that women, including women who accuse powerful men of sexual violence, are entitled to all the same legal protections men are. “I am filing this on behalf of every woman who has ever been harassed, assaulted, silenced, or spoken up only to be shamed, fired, ridiculed and belittled,” Carroll said in a statement. “It’s for every woman who can’t speak up because she’ll lose the job she needs to support her three kids.” The forms of retaliation that Carroll faced when she came forward with her allegation – being mocked, dismissed, smeared, ignored, threatened, and professionally sidelined – aren’t uncommon. They happen to every woman who comes forward about her sexual abuse. But just because these kinds of retaliation are normal doesn’t mean that they’re acceptable – and it doesn’t mean that they’re legal, either.
Moira Donegan is a Guardian US columnist