Donald Trump has been found liable for sexual abuse and defamation of writer E. Jean Carroll, but the jury did not determine that the former president had raped her. That verdict has some legal experts confused, given that the types of evidence required to prove both allegations go hand in hand.
As the nine-member jury deliberated over three hours on Tuesday, they were presented with a verdict form that listed 10 yes and no questions, including whether Carroll proved, with a preponderance of evidence, that Trump had raped her in a department store dressing room over 20 years ago (Carroll testified she could not remember the exact date, but it may have happened in 1995). The question after that one asked whether the evidence proved that Trump had sexually abused Carroll. Under New York law, sexual abuse is considered any sexual contact of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. Rape follows a similar definition, when a person forces sexual intercourse with another person without their consent.
“It doesn’t make sense for the jurors to return a ‘no’ on rape but a ‘yes’ on sexual abuse, based on the testimony and the defense’s arguments,” Corey Rayburn Yung, a criminal law professor at the University of Kansas, told me in an interview.
We asked Yung why he feels that way and what could have driven the jury in this case to arrive at its verdict.
Here’s our conversation, lightly edited and condensed for clarity:
Shirin Ali: What’s the difference in proving a sexual abuse allegation versus rape?
Corey Rayburn Yung: Well, the difference, as the jury was instructed, between rape and sexual abuse, is that for it to be rape, there had to have been vaginal penetration by Trump’s penis. It’s very specific in terms of the penetration required. Carroll testified that he initially penetrated her digitally with his finger, but then followed with his penis. It seems strange that the jurors would find her story persuasive enough to find Trump liable on the sex abuse count, but not on the rape account, just to say that that is the one fact she did not establish by a preponderance of evidence.
What factors could have caused the verdict’s inconsistency?
One thing that could have happened here, although it’s hard to know with a jury, is that the other two victims who testified about Trump being spontaneously sexually aggressive and that he sexually assaulted them, they did not say that they were raped. They said they were sexually abused—forced kissing, groping and touching—and there was no penetration by the penis, because one time it was on a plane and the other it was in a ballroom as the butler came in. These were different situations with no privacy. So perhaps the jury decided Carroll had not established the rape allegation by a preponderance of evidence because the pattern only fit the sexual abuse charge. If that’s true, it’s kind of sad. Carroll had uncontroverted testimony, the cross-examination didn’t really do much to undermine her credibility, and the story that Trump told was problematic to say the least, and confusing and contradictory, but perhaps that’s what they focused on.
The other possibility, and I think this might be the truer case, is that the word rape carries extra connotations in our culture, and the jurors might have been gun-shy about applying it regardless of the specific standard there. We could even see this in the case: Carroll testified and her friends testified that when the event happened, she didn’t want to use the word rape. She didn’t use it in conversations with friends. In fact, there’s a lot of academic research about how victims and survivors often shy away from the word rape and want to characterize the events as something else. Sometimes they’ll use words like sexual assault or sexual abuse, or even say “Oh, it’s just boys being boys.” So there’s a lot of stigma in many directions around the word rape and perhaps this jury, pragmatically recognizing that, agreed that Trump’s responsible, agreed on the dollar amount, but they didn’t want to force the issue on the word rape. That could be because, in their minds, it’s something much more significant and it might be a stranger lurking in the bushes or the sort of iconic idea of what a rapist is, and they just didn’t want to use that word in this context even though the legal standard seems clearly met by Carroll’s testimony.
Could Trump’s defense team’s counterattack on Carroll’s allegations have swayed some of the jury?
Carroll’s testimony clearly established something that meets the legal standard, and the cross-examination didn’t home in on that part of the story. You could have imagined a different cross-examination, for example, in some cases, mostly in the criminal realm, where an intoxicated victim can’t remember exactly what happened. The legal team can’t prove with a higher burden of proof in a criminal context beyond a reasonable doubt that penetration of a penis or other forms of intrusion actually occurred. But that’s not this case. I really think this is more just cultural attitudes and a social reluctance to apply the word rape because Carroll’s testimony established a rape occurred, and if you find her testimony credible, the jury should have said yes on the verdict form for rape having occurred.
Would a rape charge have changed the $5 million in damages awarded to Carroll?
It doesn’t really affect the outcome. These damages are mostly compensatory. There’s isn’t a specific number linked to rape, the total aggregate amounts can be the same either way.
Could New York’s rape law have potentially caused jurors confusion when deciding on that allegation?
I could certainly imagine situations where it could have been a more stringent requirement for rape. For example, many jurisdictions still have a force requirement, meaning that physical force has to be accompanied by nonconsent and can’t be part of the sex act itself. This makes a difference in some cases. But New York’s definition is a pretty low threshold, and from what I understand, and the jury instructions I’ve seen, the only distinction was vaginal penetration by a penis. It doesn’t make sense for the jurors to return a no on rape, but yes on sexual abuse.
I don’t think the legal standard has much to do with it. This is a common phenomenon, that the words we use to describe sexual violence, and how we define them in law, is not the same way it will be applied. We’ve had studies of jurors, prosecutors, and police; invariably the agents in the system have their own definitions, often more restrictive, more limited than what the law actually is. So this is not an unusual outcome, but it’s a little unusual in this case because it’s just glaring in that the jury seems to have been splitting hairs when there’s no hair to be split. But jurors do that sometimes, they compromise and reach verdicts that are hard to square with the law.
Do you think the verdict form had a role to play in the no vote for rape?
It does make me wonder in hindsight, should the verdict form have just said rape or sexual abuse is one question, instead of separate ones. That may have invited this sort of distinction to be drawn in a way that creates confusion.
