Hear Me! Redux by Winifred Nathan

She Said; He Said 
And How 
She won! He lost!

On May 9, 2023, in New York Supreme Court, “she said,” won. E. Jean Carroll was awarded a judgment of five million dollars in compensatory damages in her defamation and sexual abuse case against former President Donald Trump. YES, she won! He lost!  

How did this happen?

The starting point is looking to a New York state change in its law regarding sexual assault. The assault took place in early 1969. Like many women, Ms. Carroll didn’t seek immediate legal help. She waited until 2019 to file a suit. Her explanation: at her trial, she opined, “I was born in 1943. Women like me were taught and trained to keep our chins up and not to complain.”

In November 2019, E. Jean Carroll did bring her first lawsuit against Donald Trump, which grew from his remarks when she accused him of sexual abuse. The suit was, however, limited to defamation. (Applicable statutes of limitation precluded any potential criminal action for sexual assault.) The Justice Department appealed the case. 

In the meantime, Carroll filed in 2022 a second case against Trump for defamation and battery under New York State’s Adult Survivors Act (ASA). She was able to include battery under ASA because the act amended the statute of limitations for civil claims alleging certain sexual offenses. The alleged sexual violation ( battery) was sexual abuse in the dressing room at Bergdorf Goodman. There were new defamatory remarks. ( There will be more.)

A New York State Supreme Court jury a year later, in May 2023, found that Trump sexually abused and defamed her.

ASA allowed Carroll to have her day in court on the sexual assault injury. But what explains her positive result once in court?

Ms. Carroll, in post-verdict remarks, said she was heard. Women typically have not been heard when accusing men of sexual misconduct. Dr. Beasley Ford was not heard in the high-profile Supreme Court appointment hearing of Justice Kavanaugh and Anita Hill in the hearing of Clarence Thomas. What Beasley Ford and Anita Hill had in common was they kept their abuse experiences a secret. E. Jean Carroll told two friends. 

After Justice Kavanaugh was appointed to the Supreme Court, in my frustration, I wrote an article, Hear Me, for this blog. I proposed that girls and women have a friend they could tell about any unwanted sexual experiences. I suggested that men rely on the silence of women who find themselves with no one to back up their accusations making denial easy.

Ms. Carroll did not read my article, but she did tell two friends about the sexual assault in the dressing room at Bergdorf Goodman. Did this make a difference?

I think it did. I’m not alone. On television, law professors praised Ms. Carroll for telling friends. Sharing her story immediately after the incident gave her two witnesses who could tell the jury, “I believe her. “Roberta Kaplan, Carroll’s attorney, argued in her closing remarks to the jury that they would have to disregard all the witnesses to find Trump not liable. Among those witnesses were the two friends who gave credible first-hand accounts of her emotional response (one within hours) and her description of the sexual abuse. 

Credibility is everything. Consistency in the story makes it more believable. Emotional responses can affirm or betray our words. We lie with words. A red flag goes up if our emotional response doesn’t match our words. 

Lisa Birnbach, one of the friends, testified that she was at home at dinner time with her children when Carroll called her “breathless, hyperventilating, emotional .”She further related how Carroll started by saying you can’t believe what just happened to me. She went on to tell how she met Donald Trump at Bergdorf Goodman, that they were shopping, and the next thing she knew, he was pulling down her tights in a dressing room. Unless it is true, you don’t call up a friend hyperventilating with this type of story.  

Lisa Birnbach wanted Carroll to go to the police. Her second confidant, Carol Martin, told her not to involve the police. She cautioned that Donald Trump would bury her if she complained. Martin recognized the uneven power balance. This advice may have helped at trial for an explanation of why she didn’t go to the police. The demeanor of the defense attorney may have also helped. Carroll described him as a “male peacock from the 17th Century.” The attorney’s aggressive manner was a throw back tor what women in 1969 could expect as a response at the police station. 

There were unquestionably other reasons that the jury found in her favor. Donald Trump likes to brag about his sexual conquests. There is the “Access Hollywood” tape (shown at the trial) in which he brags about grabbing the genitals of women.  On the other hand, when accusers confront him, Trump denies it. He said he did not know her in Carroll’s case; she was not his type. In a deposition, he mistakes her for his wife, Marla Maples, which contradicts the not my type. (Ms. Carroll was also a former cheerleader and Ms. Indiana.) When you practice law, you will get a few gifts, such as this mistaken identity of Marla Maples. The client who has taken control of an out-of-control situation is better than the unexpected gift. That is what Ms. Carroll did when she talked to her two friends. 

There is a subsequent chapter unfolding. The first case, 2019, is still alive. An appeals court returned this lawsuit to the lower court judge before the recent trial. Immediately following the jury verdict, Donald Trump, on CNN at a town hall, again defamed Ms. Carroll. She asks the judge to amend the initial defamation suit against former President Donald Trump to seek additional punitive damages. The amount she is asking for is no less than 10 million dollars. 

Go, E. Jean Carroll! 

BIO Winifred Nathan: Like E. Jean Carroll, I am a member of the Silent Generation. I was born during the Great Depression and am a child of WWII. Occasionally, I break the silence and publish articles about everything from making a piñata to Marshall McLuhan and the Gospel of John. I have three degrees: BA with majors in philosophy and sociology, MSW, and JD. My resume includes sworn police officer, social worker, psychotherapist, and attorney. Three children and two husbands (deceased) have added to the adventure of my long life.