In a rape prosecution, the victim’s credibility is essential to the case. The nature of the crime means it doesn’t usually happen in front of witnesses, hence the “he said,” “she said” trope (although, to be clear, men are rape victims too.) The results almost always hinge on whether the jurors believe the victim.
E. Jean Carroll’s civil lawsuit against former President Donald Trump is not a criminal prosecution. Carroll alleges that Trump defamed her on social media in 2022 and committed battery against her (a civil tort version of the crime of assault.) Carroll also filed an earlier lawsuit alleging Trump defamed her while he was president, but that case was delayed by Trump’s appeals and those allegations aren’t included in this trial. (Trump previously called her accusations a "con job" and a "scam.")
Even though this is a civil case, when the jury deliberates, Carroll's credibility will be key, just like it would be if this was a rape prosecution. To find for Carroll, jurors must be persuaded Trump raped her and then lied about it. But unlike a criminal case, where the prosecution must prove its case beyond a reasonable doubt, this jury only has to find Carroll’s claims are supported by a preponderance of the evidence — that it’s more likely than not she is telling the truth.
Trump’s lawyers are already using the age-old and repulsive tactics deployed against women in this situation. The law has mostly evolved past anti-victim stereotypes: She didn’t fight back, she didn’t call the police right away, she wasn’t pretty enough to rape. And some past efforts to paint the victim as unworthy of protection have been prohibited outright as the law evolves. Rape shield laws, for example, now largely protect a victim’s prior sexual history from being discussed at trial. Similar arguments suggesting a victim was “acting like she wanted it” because she was dressed provocatively or was flirting don't overcome evidence of lack of consent. Today, “no” is more likely to mean no.
And that’s exactly what Carroll testified to: that she didn’t consent. To the contrary, she said she was stunned and surprised when Trump shoved her against a dressing room wall. She testified that she tried to push him off — he had her pinned — and that she ran away as soon as she was able to escape.
Trump attorney Joe Tacopina, meanwhile, used some of the worst strategies defense lawyers use on cross-examination in a case involving a sexual assault. You didn’t scream, Tacopina said to Carroll, as though screaming is some sort of litmus test for whether an assault has taken place. But Carroll had the right response, noting she wasn’t a screamer but that she was surprised and scared. “I’m telling you; he raped me whether I screamed or not,” she said.
Tacopina’s tactics highlight why many rape survivors dread coming forward. They know they are likely to face a second round of victimization.
One major point of contention has been Carroll’s inability to put a date on the alleged rape. She doesn’t remember the month or the year. The closest she can get is mid-1990s, possibly 1996. She related the details, though, to two friends at the time of the rape. One of these friends said Carroll needed to go to the police and offered to take her. But the other friend, a television anchor, counseled her not to pursue a case. She pointed out that Donald Trump was a powerful man who could bury her.
It’s easy to forget what 1996 was like for rape victims. Carroll was with Trump voluntarily, flirting (by her own admission) and trying on lingerie. That’s not anything close to consent, but women, even more so back then, worried about how law enforcement, let alone a jury, would perceive them if they reported a rape. The victim ended up on trial as much as, if not more so than, her attacker.
So will this jury, selected in the year 2023, believe Carroll? She held up well on cross-examination. In the interest of transparency, it’s important to note that I know Carroll personally (we bonded years ago over a mutual love of knitting.) I believe her. But even strangers may find it hard to dismiss her humanity on the stand. She came across as fierce, determined, concerned, emotional. Trump, after dismissing Carroll as “not my type,” misidentified a photo of her during his deposition as his second wife, Marla Maples. He will have his own credibility issues. But it’s impossible to fully determine whether a jury believes a victim until they return their verdict.
Interestingly, Carroll’s honesty about her memory gap may actually encourage the jury to believe her. In closing arguments, expect Carroll’s lawyers to say this candor makes her more credible. If she was making up the rape, she could have simply picked a likely sounding date. And if this was some sort of collaboration between Carroll and her two key witnesses, as Trump’s lawyers allege, they would have concocted a better story.
The weakness here isn’t in her story — it’s our society’s failure to protect victims of sexual assault from secondary victimization, which results in shockingly low rates of reporting and prosecution for sex crimes. The jury may well believe Carroll and understand her reaction as a product of how victims are forced to move on without justice in a society that punishes them for being attacked.
And why shouldn’t the jury believe Carroll? Throughout the trial, the jurors will be able to hear from and observe her demeanor. At the other end of the courtroom, there is only an empty chair. Trump has not spent a single day in court so far. Jurors could legitimately infer he has something to hide. In his opening statement, Tacopina said, “It all comes down to, Do you believe the unbelievable? Nothing else in this courtroom matters.” And that may end up meaning something entirely different from what he intended.