In a bombshell New York Magazine article in June, advice columnist E. Jean Carroll accused President Donald Trump of raping her in New York in 1995 or 1996. Trump denied the claim, stating that he had never met Carroll and that “she’s not my type.” Now, Carroll is suing Trump for defamation, claiming that the president’s denial amounts to defamation.
The suit alleges that Trump, “through express statements and deliberate implications, accused Carroll of lying about the rape in order to increase book sales, carry out a political agenda, advance a conspiracy with the Democratic Party, and make money.”
Carroll’s lawsuit demonstrates two things. First, when an alleged victim of sexual assault can no longer bring a criminal case because the statute of limitations has expired, defamation suits can provide a backdoor route to litigate those allegations. And second, defamation should not be the stand-in for criminal cases; instead, states should consider either abolishing or lengthening the statute of limitations for crimes such as rape and sexual assault — and should make those changes retroactive.
Typically, winning a defamation case based on allegations of sexual assault forces the alleged attacker to make some kind of financial restitution. But it does not take that person off the streets nor lead to any loss of civic privileges. In addition, it deprives the accuser and the public of seeing these allegations tested in the criminal justice system.
The problem is that many alleged victims of sexual assault, like Carroll, cannot avail themselves of the criminal justice system. At the time when Carroll alleges Trump raped her, the statute of limitations for rape in the state of New York was five years. In 2006, New York changed the law and abolished the statute of limitations for certain types of assault, but that change does not apply retroactively to crimes committed before 2006.
So given these limited options, what does Carroll have to prove to succeed in her defamation case against Trump?
First, Carroll, like all plaintiffs in defamation cases, will have to prove that Trump made a false statement. Carroll alleges that Trump made a number of false statements, such as denying the rape and that they ever met. If Trump’s denial that he sexually assaulted Carroll is false, then she can prove this element of defamation as to some of her allegations. Carroll will, in essence, have to prove that Trump sexually assaulted her in order to win her defamation case.
Second, Carroll will have to show that Trump acted with “actual malice” when he made that false statement. This means Trump either knew the denial was false or acted in reckless disregard of the falsity of the statement.
If Carroll were a private figure, she would only have to prove that Trump acted negligently, as opposed to acting with actual malice. But Carroll, as a long-running advice columnist in a national magazine, would be considered a public figure.
In addition, a court may consider the fact that Trump’s statement is a matter of legitimate public concern. If the president, even before he won in 2016, assaulted someone, that quite clearly falls within the bucket of matters of legitimate public concern.
Carroll will also have to demonstrate that she suffered a reputational harm as a result of the false statement made with actual malice. This is why Carroll claims that Trump “smeared her integrity, honesty, and dignity.”
Defamation cases brought by public figures are typically uphill battles. But Carroll has a top-notch attorney, Roberta Kaplan, who successfully argued before the U.S. Supreme Court in the case that overturned the Defense of Marriage Act. Kaplan will have her work cut out for her on some of the allegations; proving that an assault happened decades ago in a department store dressing room is no easy task.
But this civil defamation case does provide Carroll with the possibility of making her case and proving Trump is liable in a courtroom. This is why Summer Zervos, a former contestant on Trump’s reality television show, “The Apprentice,” also sued Trump for defamation when he denied her claims of sexual assault. That case is still pending.
More generally, defamation has become an increasingly popular vehicle for those alleging sexual assault or acts outside of the statute of limitations. Seven women sued Bill Cosby for defamation when we denied assaulting them. Those cases were recently settled.
A civil suit based on defamation is not, however, a substitute for a criminal proceeding. And that is why states should lengthen or eliminate the statute of limitations for sexual assault cases and should make those changes apply regardless of when the alleged crime took place. We know there are many, many reasons why victims of sexual assault do not report those crimes for decades, if ever. Victims fear being blamed, stigmatized, having their personal and professional lives upended. Many states have recognized this and have done what New York did, abolish the statute of limitations for certain cases of rape. But states should take a step further and allow all victims of those crimes, regardless of when the crime occurred, to press charges in a criminal court.