Editor’s Note: Caroline Polisi is a legal analyst, criminal defense attorney and lecturer in law at Columbia Law School. She frequently appears on CNN to provide legal commentary. Follow her on Twitter @CarolinePolisi. The views expressed in this commentary are her own. Read more opinion articles on CNN.
E. Jean Carroll has prevailed in her civil defamation and battery suit against former President Donald Trump, making her the only woman out of 26 accusers to hold him accountable for sexual misconduct in a court of law. On Tuesday, the jury determined Trump should pay Carroll about $2 million in damages for battery and nearly $3 million for defaming her. Trump, who has repeatedly denied all these claims, posted shortly after the verdict on Truth Social that this is “a continuation of the greatest witch hunt of all time.”
Carroll’s victory amplifies a larger trend in the legal landscape involving allegations of sexual assault. Post-#MeToo, courts are more and more willing to allow for the presentation of powerful evidence indicating a pattern of predatory behavior by the defendant – evidence that was once was routinely excluded in both civil and criminal trials.
Carroll alleged that Trump raped her in a Bergdorf Goodman dressing room in Manhattan in 1996. Her case was bolstered by solid and credible evidence: the testimony of two witnesses who testified that Carroll told them about the assault soon thereafter; bombshell video-tape deposition testimony of Trump mistaking Carroll for his former wife, Marla Maples, despite Trump’s vociferous (and sickening) defense that he could not have raped Carroll because she was not “his type;” and, of course, Trump’s on-tape bragging about engaging in what amounts to sexual battery.
But Carroll was also allowed to introduce two witnesses with no connection to the alleged events at all. Jessica Leeds and Natasha Stoynoff each testified that Trump had sexually battered them in a similar fashion to that alleged by Carroll.
These are exactly the kinds of witnesses who have traditionally been excluded from both criminal and civil cases involving allegations of sexual assault. These witnesses are sometimes referred to as “propensity witnesses” or “prior bad acts” witnesses, and are typically outside the scope of allowable evidence because – as the legal theory goes – juries should make their decisions based solely on the evidence presented pertaining to the particular alleged incident and not be prejudiced into believing that because the defendant engaged in such conduct before, he or she must have engaged in it in the present instance. But times have changed.
Given the uniquely difficult circumstances of proving sexual assault allegations – including that there frequently are no witnesses – judges are finding propensity witnesses to be more probative than prejudicial in the wake of #MeToo. Indeed, criminal trials against prominent film producer Harvey Weinstein and comedian Bill Cosby, both of which allowed for the introduction witnesses who alleged they were also sexually assaulted by the defendants, resulted in historic convictions (and, in fact, Carroll noted during her trial that it was only after the New York Times published the shocking allegations against Weinstein that she contemplated coming forward with her own story of sexual assault).
Importantly, Carroll’s case is civil, not criminal. Trump has not been found guilty of sexual assault beyond a reasonable doubt, but rather he has been found liable for defamation and battery based on a preponderance of the evidence.
Nonetheless, the victory for Carroll sends a clear message to serial sexual predators: that they can and will be confronted with their previous conduct in court, even if that conduct has never been litigated or criminally charged.
So while Carroll’s victory will regrettably have little to no effect on “Teflon Don’s” presidential run, it surely is proof that the #MeToo movement has left an indelible mark on our legal system and will result in more civil victories and criminal convictions for sexual violence. And that means more justice for survivors.
The National Sexual Assault Hotline is 1-800-656-4673 and provided by RAINN (Rape, Abuse & Incest National Network) 24/7.
