Carroll v. Trump Libel Suit: Trump's Access Hollywood Tape Admissible, as Is

other women's testimony about Trump's alleged past sexual assaults.

Today's decision by Judge Lewis Kaplan (S.D.N.Y.) is here. There are some other details as well; read the opinion, which largely focuses on Federal Rule of Evidence 415 ("similar acts in civil cases involving sexual assault …").

Comments

[Dr. Ed 2]

"And when you’re a star they let you do it. You can do anything."

Why doesn't this line clear him -- he's essentially saying that they give you consent when you are a star. Well that's not rape.
Throw in the times he admitted he didn't get anywhere and that's not evidence of him being a rapist.

[John F. Carr]

The judge noted that the statement could have an innocent meaning, and chose to let the jury decide.

Starting in the 1990s Congress made changes to the rules of evidence to get more people convicted of or found liable for sex-related offenses. Trump hit one of those changes here.

[TwelveInchPianist]

"Starting in the 1990s Congress made changes to the rules of evidence to get more people convicted of or found liable for sex-related offenses. "

Under the Clinton administration. IIRC one of the effects of those changes was to make the relationship with Monica relevant to Paula Jones' case.

[Brett Bellmore]

That was the irony of it: Clinton had proudly and publicly signed the law that forced him to give the testimony where he perjured himself. He, and a few hundred members of Congress, were the only people in the country categorically NOT entitled to complain about being forced to testify about their past sex lives.

[Dr. Ed 2]

I know it was a different state, but where does the Bill Cosby decision come in here?

If it’s slander to say you didn’t do something, why isn’t it also slander for someone to say you did? Can men acquitted of rape turn around and sue the purported victim?

I know she won't have any assets, but just to drag *her* name through the mud in return. Do the rape shield laws apply to civil suits?

[jdoeford]

I don't know which decision you're referring to, but in the District of Mass. I represented several women who sued Cosby for defamation (for calling them liars after they publicly accused him of sexual assault), and he did counterclaim for defamation. (He later dismissed his own claims.)

[CJColucci]

Can men acquitted of rape turn around and sue the purported victim?

Indeed they can, if within the statute of limitations. (Most states have short SOLs for defamation, and if you wait for a criminal acquittal, you may be SOL because of the SOL.) Why would you think they can't?

[John F. Carr]

If you look through Eugene Volokh's posts here you will find several on pseudonymity in civil sex-related cases.

The strictest forms of rape shield laws are unconstitutional. You will find that most news sources decline to print the woman's name anyway. A law requiring them to print her name would probably be as unconstitutional as the laws forbidding them to print her name.

If the underlying motive of your lawsuit is to drag her name through the mud rather than squeeze blood from a stone, you will not find a lawyer to take the case on contingency. How much are you willing to spend out of your own pocket to get a judgment proclaiming that she is a liar?

[Estragon]

So your view is that the access Hollywood tape should “clear him” of civil liability for the alleged conduct involving Ms. Carroll? Does it matter if he was specifically referring to her when he said “… they let you do it”?

[Dr. Ed 2]

If the slut is going to give consent, it ain't rape.
Adultery, yes, but not rape.

[Rev. Arthur L. Kirkland]

If the slut is going to give consent, it ain’t rape.

These are your fans, Volokh Conspirators -- the audience you have carefully cultivated with a blog that evokes the odd mix of disaffected old-timey bigot and awkward teen incel.

And the reason your colleagues prefer not to sit near you at faculty meetings.

[MaddogEngineer]

Why do you think the bloggers here are responsible for the people who choose to comment here, and the contents of their comments? I mean, have you read any online public comments? It's all a race to the bottom. Frankly most of what is posted here is of much higher content.

But I know, the truth is you're just an eff'd up troll. Maybe you know better, maybe there's really something wrong with you.

[Nige]

She's a 'slut,' Trump is voted president by the party of family values.

[DWB]

If Clinton resigns or was convicted -- Trump never becomes president.

WHOOOPS!

[Nige]

Still doesn’t make sense. Republicans are the party of family values who don't do that sort of thing.

Lol.

[DWB]

The argument was made that personal character ... especially sexual ... didn't matter.

Your side won.

Ain't it grand?

[Nige]

So you don't understand the principle we stuck by but were still willing to trash your own? Yeah.

[DWB]

So ... what you are really trying to say ... is that I maintained the same principle with Trump that I did with Clinton?

YES!!!!!

[Nige]

You voted for Clinton and Trump because it's your principle to vote for philanderers?

[Frank Drackman]

at least "45" hits on grown women, OK, Senescent J did give his Sec Def's wife a Neck Massage, but what's with coming on to the 5th Graders?? He's way creepier than "Vito" from the Soprano's ever was.
and look what happened to "Vito"

Frank

[David Nieporent]

If the slut is going to give consent, it ain’t rape.

Who said she was going to give consent?

[ObviouslyNotSpam]

Well, every member of the Orange Army has given him consent.

[apedad]

". . . he admitted he didn’t get anywhere and that’s not evidence of him being a rapist."

But it is an admission of an (apparently unsuccessful) attempt of sexual assault.

And as the judge mentioned, the creditability of the plaintiff and defendant have to be decided by a jury - not the judge.

[mulched]

An unsuccessful date is an admission of attempted sexual assault? That's weirdly harsh.

[CJColucci]

Remind me to warn any women I care about not to date you.

[David Nieporent]

Why doesn’t this line clear him — he’s essentially saying that they give you consent when you are a star. Well that’s not rape.

Why doesn't a self-serving statement clear someone? I'll let you ponder that for 30 seconds.

[Nige]

‘Well that’s not rape.’

I’m sure some people claimed it was rape, but it actually comes across as the entitlement of a serial harasser with an ugly attitude towards women.

[ObviouslyNotSpam]

Do you mean a typical Republican?

Lol, of course not! He was a Democrat at the time (2001-09)

[Nige]

No, I said what I meant. Democrats never voted for him into the position of dog-catcher, let alone President.

[Frank Drackman]

Let me know when they find one of Trumps "Victims" Asyphyxiated (not drowned, there's a difference) on the floorboard of an Oldsmobile.

Frank

[Dr. Ed 2]

You'd have to find an Oldsmobile first...

[SRG]

Whataboutism? Seriously?

[Frank Drackman]

Seriously, when's the last time a Senator left a young woman to asphyxiate (not drowned, there's a difference) OK, 1969, but he got questioned about it one time, in 1979, and sounded like Stuttering John Fetterman on Quaaludes
https://www.youtube.com/watch?v=e5TkhNWPspM
and then had the balls to adopt a "Portuguese Water Dog" and name him "Splash"
you can't make that shit up, and I'll "What-a-bout-it" like a Mo-Fo,

Frank (never asphyxiated (close, it's Anesthesia) or drowned anyone)

[Dr. Ed 2]

It gets better -- guess what is behind the Ted Kennedy Senate "Immersion Tank" out on Boston's Columbia Point?

A boat ramp.

The cops need to launch rescue boats from somewhere, and it's actually a good location in that it is right off the expressway and gives ready access to the entire harbor, but I found it truly hilarious.

[Krychek_2]

Not only whataboutism, but whataboutism from 50 years ago in which the senator involved has been dead for ten years. Not only is the horse being beaten dead, he's completely decomposed.

[MaddogEngineer]

It's not whatabout-ism to note that some people are only bothered when the other guys do it.

The bother is not about any particular deed, it's about what some people choose to highlight, or not.

[Krychek_2]

I don’t know what you mean by not bothered; Chappaquiddick almost certainly cost Ted Kennedy the 1980 presidential nomination. He was returned to the Senate but that was a decision the voters had the right to make. And my point is that it was 50 years ago so at this point if you’re going to argue hypocrisy, try to find a more current example.

[Flatulus]

You mean like Tara Reid?

[Frank Drackman]

"Completely decomposed"?? not if he was embalmed properly, and I'm pretty sure Teddy Kennedy had "Pre-embalmed" himself for decades, Mortician didn't have to work too hard.

Frank

[Bob from Ohio]

Clinton judge in NY.

The whole case is bogus to start, an office holder must deny a rape charge for multiple reasons, a mere denial is not "defamation". Its just a way to get around statute of limitations.

[SRG]

"The whole case is bogus to start, Trump should be allowed to do and say what he wants without recourse."

FTFY

[Bob from Ohio]

Didn't think you were such a Trump fan. Sad!

[Frank Drackman]

Better than being a (The) Ohio State Fan, Sad Squared!!!!!!!!!!!

[Bob from Ohio]

Its just an Ohio state university.

[jdoeford]

Several years ago I represented several women suing Bill Cosby in the District of Mass., arising out of circumstances similar to Trump v. Carroll, and we beat a motion to dismiss on the pleadings that was similar to the argument you’re making. The problem for Trump is that he went beyond a mere denial, and called Carroll a liar. If Trump had *merely* denied the allegation, he likely could have insulated himself from defamation liability (and won a motion to dismiss on the pleadings).

That being so, the principle that a political candidate could call someone a liar without fear of defamation liability *even if* the accuser made a truthful accusation, would not be a good idea. Of course I don’t know for a fact whether Carroll told the truth, but that’s why there needs to be a jury trial.

[Rev. Arthur L. Kirkland]

The whole case is bogus to start

Legal insights from glorified proofreaders in Outhouse Trench, Ohio are every bit as valuable as legal opinions from South Texas College Of Law Houston.

[David Nieporent]

a mere denial is not “defamation”.

I agree. But Trump being Trump, he did not have the self-control to limit himself to a mere denial.

[Sarcastr0]

Bob, you gotta go to battle with the Trump you have, not the Trump you wish you had.

[Bored Lawyer]

See my comment below. The damages from the defamation are not necessarily those from the rape, and probably much less. I don't see how she collects damages on the rape claims.

[Frank Drackman]

Hey, I love Ohio, Cleveland, Toledo, Cincinnati, spent a month there one weekend.

[Rev. Arthur L. Kirkland]

There is some culture, education, and marketable skill in the Cleveland, Columbus and (probably) Cincinnati areas, but most of Ohio has become a write-off.

[not guilty]

As Groucho Marx observed, time wounds all heels.

[Ridgeway]

Is "Mss." now the "correct" address for multiple women being addressed by their last names?

I know it is completely OT, but the Court used that term in the opinion, and I do not recall seeing it before.

Back in the 6th grade, we learned Messrs., Mmes. and Mmles. (tho I am hazy on the last one). "Ms." wasn't really a thing yet, so we never learned a plural for that.

I see and hear "Messrs." once in a while but I can probably count on 3 fingers the number of times I have come across the others.

[Frank Drackman]

Loved the way William Juffuhson Clinton pronounced "Ms"
"I did not have Sex with that Woman, Mizzzzzzzzzzzzzzzzzzzzzzzzzzz Lewinsky"
"42" loved that sound, he did it again with "It depends on what the meaning of Izzzzzzzzzzzzzzzzzzzzzzzz, Izzzzzzzzzzzzzzzzzzzzzzzzzzz"

Frank

[Bored Lawyer]

I noticed the judge mentioned in passing that in her second civil suit she is seeking damages for the alleged rape. Didn't that happen over 20 years before she filed suit? The SOL should have run on that.
I get that the alleged defamation starts a new claim with a new SOL. But that should be limited to damages on her defamation claim, not the rape. I am dubious that the defamation portion has much damage. So Donald Trump called you a liar. Join the club.