A very slippery slope

I have a real problem with the slippery slope(s) created by the whole E. Jean Carrol v. Donald J. Trump case. As much as Trump is a tool, I find that this cases raises serious legal concerns regarding free speech. It also suggests that the legal system is an appropriate tool to bring down political foes that you can’t otherwise beat at the polls. Taken together, this is some seriously worrisome sh*t!

Short background (from a CNN article):

Carroll alleged Trump raped her in the Bergdorf Goodman department store and then defamed her when he denied her claim, said she wasn’t his type and suggested she made up the story to boost sales of her book. Trump denied all wrongdoing.

Here are my concerns, in no particular order:

1) Trump is entitled to claim his innocence
Ms. Carroll is cited as having claimed that Trump raped her. Trump is entitled to make a claim of innocence; doing so does not defame the claimant. Neither does voicing an opinion suggesting someone is not your type, or voicing an opinion on possible alternate motives for the allegations. Readers or witnesses to his claims of innocence can decide for themselves whether or not the allegations are true.

What’s next? Are convicted criminals civilly liable to witnesses or victims if they continue to assert their innocence? Even if they are eventually cleared of the crimes of which they are convicted?

2) A second case between these two was made possible as a result of a New York “look-back” law that allowed sexual assault victims to sue in civil court – no matter how much time had passed since the alleged assault.

Statute of limitations are designed to protect a defendant from stale claims, where delays may have have eroded the defendant’s ability to collect evidence for their defense. Such “look-back” laws are troubling because they favor the plaintiff while severely disadvantaging the defense. How do you defend yourself against a claim that allegedly occurred 20+ years ago? How do you gather evidence for your defense when no physical evidence or records remain? How do you begin to gather evidence when your accuser doesn’t even have to definitively state in their claim when the alleged event occurred?

In a volatile case involving a polarizing public figure, such cases will boil down to the local jury pool and their perception of each litigant – or worse, the latest public outrage  (in the case, the “anyone but Trump” and “me, too” movements). With little if any possibility of collecting physical evidence or eyewitnesses due to the time that has passed, the case will fall to the testimony of the more publicly-favored  litigant. This is patently unfair to the defense in this case, and the reason that such stale claims are generally barred by a statute of limitations.

3) In the second case the jury found that Ms. Carroll had been sexually assaulted, but not raped. Doesn’t this make Trump’s claims that she lied about the rape true (under the law), if only in part, and thus not defamation? Doesn’t any reputation damage due to Trump now denying her claim of rape fall to Carroll for having made the claim?

4) The trial judge allowed hearsay evidence (what the plaintiff had allegedly told others who were not direct witnesses), and also testimony by others regarding past unproven allegations (from 40 years prior) unrelated to this case. Given the severe disadvantage already placed on the defense (due to New York’s “look-back” law and the plaintiff’s inability to even define when the alleged attack occurred), such testimony was inappropriate and unduly prejudicial.

So, in short:

i) No one should be denied the right to assert their innocence – even if the defendant is guilty, and even more so when the allegations are rejected by a jury. Such assertions should be protected speech, and not actionable as defamation.

ii) Speaking personal opinions, or opinions on alternative theories for an accusation – particularly political theories – should also be protected speech.

iii) “Look-back” laws that allow civil litigation for long-past allegations should recognize the hardship they place on a defendant’s right to a fair trial. Evidence rules should be held to the highest standard to minimize the unfair impact such law have on the defendant.

I don’t care whether you love or hate Trump. I want you to think instead about the precedence it sets when someone can make an allegation against you, 20+ years after the alleged act. Think about you being denied the right to dispute the allegations because your denial causes the claimant “reputational harm” – even when at least part of the allegations are found lacking by a jury. Think about your trial, where physical evidence collection and witness development is impossible due to the extreme passage of time, and where the evidence presented consists largely of hearsay or the unproven allegations by others in unrelated matters. Think about your trial in a venue where the majority of the voters (the source of the jury pool) voted against you in the previous election.

This case never should have made it to court – and particularly not in an anti-Trump venue like New York.

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