Ruling from the judge
LEWIS A. KAPLAN, District Judge.
In 2019, E. Jean Carroll first publicly claimed that businessman Donald J. Trump,
as he then was, sexually assaulted (“raped”) her in the mid-1990s. Mr. Trump responded almost
immediately by charging that Ms. Carroll’s claim was entirely false, that no such thing ever had
happened, and that Ms. Carroll falsely accused Mr. Trump for ulterior and improper purposes. He
repeated that contention in 2022 and yet again more recently. Ms. Carroll consequently sued Mr.
Trump twice.
Ms. Carroll’s first lawsuit (“Carroll I”), commenced in 2019, alleges that Mr.
Trump’s 2019 statements were defamatory. While that case was delayed for years for reasons that
need not be recapitulated here, it now is scheduled for trial in January 2024.
This, the second case (“Carroll II”), also contains a defamation claim, albeit one
based on Mr. Trump’s comparable 2022 statement. But Carroll II made an additional claim – one
for damages for the sexual assault. That claim could not have been made in 2019 because the statute
of limitations almost doubtless would have expired long before. But the claim was made possible
in 2022 by the enactment that year of New York’s Adult Survivors Act (the “ASA”), which
temporarily revived the ability of persons who were sexually assaulted as adults to sue their alleged
assaulters despite the fact that an earlier statute of limitations had run out.
This case, Carroll II, was tried in April and May 2023. Ms. Carroll contended that
Mr. Trump had assaulted her in a dressing room at a New York department store where, among
other things, he forcibly penetrated her vagina with his fingers and his penis. She testified in person
for most of three days and was cross-examined intensively. Her sexual assault claim was
corroborated by two “outcry” witnesses in whom Ms. Carroll had confided shortly after the attack,
and was supported by six other fact witnesses. Mr. Trump’s defense – based exclusively on an
2
Case 1:22-cv-10016-LAK Document 212 Filed 07/19/23 Page 2 of 59
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attempt to discredit Ms. Carroll and her other witnesses – in substance was that no assault ever had
occurred, that he did not even know Ms. Carroll, and that her accusations were a “Hoax.” Mr.
Trump, however, did not testify in person or even attend the trial despite ample opportunity to do
so.
The jury’s unanimous verdict in Carroll II was almost entirely in favor of Ms.
Carroll. The only point on which Ms. Carroll did not prevail was whether she had proved that Mr.
Trump had “raped” her within the narrow, technical meaning of a particular section of the New York
Penal Law – a section that provides that the label “rape” as used in criminal prosecutions in New
York applies only to vaginal penetration by a penis. Forcible, unconsented-to penetration of the
vagina or of other bodily orifices by fingers, other body parts, or other articles or materials is not
called “rape” under the New York Penal Law. It instead is labeled “sexual abuse.”1
As is shown in the following notes, the definition of rape in the New York Penal Law
is far narrower than the meaning of “rape” in common modern parlance, its definition in some
dictionaries,2
in some federal and state criminal statutes,3
and elsewhere.4 The finding that Ms.
1
“Sexual abuse” involving sexual contact by forcible compulsion (sexual abuse in the first
degree) nevertheless is a felony punishable by a term of imprisonment and requiring sex
offender registration. N.Y. Penal Law §§ 70.02(1)(c) (sexual abuse in the first degree is a
Class D violent felony), 3(c) (“For a class D felony, the term must be at least two years and
must not exceed seven years . . ..”); N.Y. Correct. Law §§ 168-a(3)(a)(i) (defining
“[s]exually violent offense” to include a conviction of sexual abuse in the first degree), 7(b)
(defining “[s]exually violent offender” as “a sex offender who has been convicted of a
sexually violent offense defined in subdivision three of this section”).
2
One dictionary, for example, defines rape as “unlawful sexual intercourse or any other
sexual penetration of the vagina, anus, or mouth of another person, with or without force,
by a sex organ, other body part, or foreign object, without the consent of the person
subjected to such penetration.” “[R]ape,” Dictionary.com,
https://www.dictionary.com/browse/rape (last accessed July 14, 2023) (emphasis added). The most recent edition ofBlack’s
Law Dictionary defines rape in part as “[u]nlawful sexual activity (esp. intercourse) with a
person (usu[ally] a female) without consent and usu[ally] by force or threat of injury” and
Case 1:22-cv-10016-LAK Document 212 Filed 07/19/23 Page 3 of 59
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Carroll failed to prove that she was “raped” within the meaning of the New York Penal Law does
3
4
it defines “intercourse” in the sexual sense as “[p]hysical sexual contact, esp. involving the
penetration of the vagina by the penis.” Black’s Law Dictionary 966, 1511 (11th ed. 2019).
E.g., 10 U.S.C. § 920(g)(1)(C) (Uniform Code of Military Justice) (defining “sexual act” for
purposes of rape and sexual assault as, inter alia, “the penetration, however slight, of the
vulva or penis or anus of another by any part of the body or any object, with an intent to
abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of
any person”) (emphasis added); WAYNE R. LAFAVE, SUBST.CRIM.L., § 17.2(a) & n. 43 (3d
ed.) (“In recent years, revision of rape laws have often brought about coverage of a broader
range of conduct than is encompassed within the common law term ‘carnal knowledge.’...
As for the acts covered, the new statutes ‘fall into three categories: those that continue the
narrow notion that rape should punish only genital copulation; those that agree with the
Model Code that rape laws should be expanded to include anal and oral copulation; and
those that go beyond the Model Code to include digital or mechanical penetration as well
as genital, anal, and oral sex.”) (emphasis added) (citing state statutes).
In fact, “rape” as defined in the relevant part of the New York Penal Law – forcible,
unconsented-to penetration of the vagina by a penis – constitutes “sexual assault” under the
Code of Criminal Justice of the State of New Jersey. N.J. Stat. Ann. §§ 2C:14-2c.(1) (“[a]n
actor is guilty of sexual assault if the actor commits an act of sexual penetration with another
person” and does so “using coercion or without the victim’s affirmative and freely-given
permission”) and 2C:14-1c (“‘Sexual penetration’ means vaginal intercourse, cunnilingus,
fellatio or anal intercourse between persons or insertion of the hand, finger or object into the
anus or vagina either by the actor or upon the actor’s instruction.”). New Jersey, like some
other states, does not statutorily define any crime as “rape.” As indicated by the foregoing,
New Jersey’s penal code – unlike New York’s – treats digital and other modes of penetration
in the same manner as penile penetration.
The American Psychological Association, for example, defines rape as “the nonconsensual
oral, anal, or vaginal penetration of an individual by another person with a part of the body
or an object, using force or threats of bodily harm or taking advantage of the individual’s
inability to give or deny consent. U.S. laws defining rape vary by state, but the crime of rape
is no longer limited to . . . vaginal penetration . . . .” APA Dictionary of Psychology, “Rape,”
AMERICANPSYCHOLOGICALASSOCIATION,
https://dictionary.apa.org/rape (last accessed July
14, 2023) (emphasis added).
The United States Attorney General announced in January 2012 a new definition of rape
for the purpose of the Federal Bureau of Investigation’s Uniform Crime Report Summary
Reporting System by, among other changes, “recogniz[ing] that rape with an object can be
as traumatic as penile/vaginal rape.” U.S. Department of Justice, An Updated Definition of
Rape, Jan. 6, 2012,
https://www.justice.gov/archives/opa/blog/updated-definition-rape(new definition of “rape” as “[t]he penetration, no matter how slight, of the vagina or anus
with any body part or object, or oral penetration by a sex organ of another person, without
the consent of the victim”) (emphasis added).
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not mean that she failed to prove that Mr. Trump “raped” her as many people commonly understand
the word “rape.” Indeed, as the evidence at trial recounted below makes clear, the jury found that
Mr. Trump in fact did exactly that.
So why does this matter? It matters because Mr. Trump now contends that the jury’s
$2 million compensatory damages award for Ms. Carroll’s sexual assault claim was excessive
because the jury concluded that he had not “raped” Ms. Carroll.5
Its verdict, he says, could have
been based upon no more than “groping of [Ms. Carroll’s] breasts through clothing or similar
conduct, which is a far cry from rape.”6
And while Mr. Trump is right that a $2 million award for
such groping alone could well be regarded as excessive, that undermines rather than supports his
argument. His argument is entirely unpersuasive.
This jury did not award Ms. Carroll more than $2 million for groping her breasts
through her clothing, wrongful as that might have been. There was no evidence at all of such
behavior. Instead, the proof convincingly established, and the jury implicitly found, that Mr. Trump
deliberately and forcibly penetrated Ms. Carroll’s vagina with his fingers, causing immediate pain
and long lasting emotional and psychological harm. Mr. Trump’s argument therefore ignores the
bulk of the evidence at trial, misinterprets the jury’s verdict, and mistakenly focuses on the New
York Penal Law definition of “rape” to the exclusion of the meaning of that word as it often is used
in everyday life and of the evidence of what actually occurred between Ms. Carroll and Mr. Trump.
There is no basis for disturbing the jury’s sexual assault damages. And Mr. Trump’s
5
6
The jury awarded Ms. Carroll $20,000 in punitive damages, in addition to the $2 million in
compensatory damages.
Dkt 205 (Def. Mem.) at 1.
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arguments with respect to the defamation damages are no stronger.
https://storage.courtlistener.com/recap/gov.uscourts.nysd.590045/gov.uscourts.nysd.590045.212.0.pdf
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