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The question of whether or not he assaulted her was decided in the first trial. He had no right to litigate it again in the second trial.
Here's the problem though. Jury did not find he had raped her. But after that verdict she went on CNN and claimed again that he had raped her. Trump then countersues in June 2023 for defamation for her untruthful statements. But the judge dismisses it and the reason why is a doozy.
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Trump and his legal team claimed that the former magazine writer defamed him when she said that he raped her on CNN.
Carroll made these comments during an interview after she won one of her lawsuits against the former president in May. The jury in that case found Trump liable for battery and defamation. Jurors found he did sexually abuse the writer and defamed her when he denied her allegation. Carroll was awarded $5 million in damages.
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When Carroll was asked by CNN about the verdict finding Trump didn't rape her as defined under New York law she responded, "Oh, yes he did."
For that, Trump sued the writer back in June.
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And on Monday, federal Judge Lewis Kaplan said Carroll's statements repeating the claim that Trump had raped her were "substantially true" given the jury's verdict in that case.
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Judge Kaplan wrote in his dismissal that the jury in May established that "Mr. Trump 'raped her,' albeit digitally rather than with his *****."
"In fact, both acts constitute 'rape' in common parlance, its definition in some dictionaries, in some federal and state criminal statutes, and elsewhere," he wrote.
LINKOther states' criminal statutes? What do they have to do with NY law?
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At the end of the two-week trial in Carroll II, on May 9, 2023, the jury deliberated for approximately two and a half hours. On the first count of battery, the jury was asked to evaluate whether Trump had, by a preponderance of the evidence, committed an ASA predicate sex offense, thereby reviving Carroll's claim. See C.P.L.R. 214-j. Consistent with the parties' proposals, the jury was presented with three possible ASA predicates under New York's criminal code: rape, sexual abuse, and forcible touching. Carroll II, ECF 174. The Court instructed the jury to address each predicate in that order until they found that Trump's conduct fit one of those offenses, if at all. Id. The jury answered "no" on rape and "yes" on sexual abuseand it awarded Carroll a total of $2.02 million in damages on that claim.
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As the Court instructed the Carroll II jury, under the New York Penal Law, rape requires proof that the defendant engaged in sexual intercourse with the victim and did so without the victim's consent by the use of forcible compulsion. Carroll II Trial Tr. at 1416. "Sexual intercourse" is defined as "any penetration, however slight, of the ***** into the vaginal opening." Id. at 1417. Sexual abuse, by contrast, similarly requires proof that the defendant subjected the victim to sexual contact and did so without the victim's consent by the use of forcible compulsion. Id. at 1418. "Sexual contact" is defined as "any touching of the sexual or other intimate parts of a person for the purpose of gratifying the sexual desire of either person." Id. "Sexual part" is defined as "an organ of human reproduction." Id.; see People v. Blodgett, 37 A.D.2d 1035, 1036 (3d Dep't 1971).
Those are from Carroll's own memorandum of law in support of her motion to dismiss his counterclaim.
LINKThere is a distinction between rape using a male sexual organ and using fingers which is sexual contact under the sexual abuse. See those words "by contrast"? That means there is a difference between the two under NY law.
Another bone of contention was that Carroll was somehow defamed when Trump called her a "Democratic operative." Now calling a staunch conservative Republican a "Democrat" might be offensive but is it really defamatory? Especially if it is true? Can there even be a question of her political agenda here? After her shaemless comments post the current verdict?
Her testimony and public statements were that she was not going to sue Trump. But then a meeting was set up by Erica Jong's daughter* and George Conway and he arrived armed with a power point presentation, the name of lawyer already on board and the financing by Reid Hoffman.
Yet the judge refused to allow evidence (even Reid's own tweet admitting he was funding her lawsuit specifically) to be presented on this disputed fact. That was in the trial that Tacopina tried. Was not allowed.
Lastly, the procedure ordered by the court to bifurcate the proceeding in order to set an issue preclusion a/k/a collateral estoppel for the second trial is shall we unusual. Liability and damages, if any, are almost always tried in the same civil case, particularly tort cases which is what defamation is, a tort. As is a claim under the Adult Survivors Act. Personal injury, i.e. a tort.
This was a set up from the get go. After Team Mueller was unsuccessful in baiting Trump into an obstruction charge, the Trump haters changed tactics and used a different approach and boy did it work. Just like clockwork almost like it was planned, didn't?
*Erica Jong was a soft porn writer in the early 70s. And I am not talking about bodice ripping romance novels, nor a Jackie Collins or Danielle Steel level of writer. And she and Carroll tended to write in same genre and are long term friends.
