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PaperclipPerfector  3mo ago (text post)   18446 thread views

Culture War Roundup for the week of January 29, 2024

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Jumping right in with something that may get me in trouble, who knows?

First, obligatory disclaimers. This is a serious question. I am not trying to "boo, outgroup". I don't think Trump is an innocent little baa-lamb, okay? Let's just get all the "but of course he did it, he's the type of guy, grab 'em by the pussy" stuff out of the way. "Reade is crazy, she's a Russian asset, it was all lies". Ignore all that. Try, as far as you can, to put the background and any opinions you have on X versus Y out of your mind. Just go by the statements of what was accused and alleged and no interpretation "well of course A is the type to do this so B is telling the truth but C is not the type so D is lying".

On the bare facts of the allegation, do you think E. Jean Carroll is telling the truth? Do you think it happened as she said it happened, do you think the verdict was correct? And if you believe her, why don't you believe Tara Reade? Neither have independent witnesses. Both allege sexual assault with digital penetration (at least, so far as I understand, Carroll did at first then said he penetrated her with his penis). Both allege it happened in a secluded area. Why does Carroll get an $83 million payout for Trump saying she's a liar while Reade - doesn't?

(1) E. Jean Carroll's account (from The Cut):

So now I will tell you what happened:

The moment the dressing-room door is closed, he lunges at me, pushes me against the wall, hitting my head quite badly, and puts his mouth against my lips. I am so shocked I shove him back and start laughing again. He seizes both my arms and pushes me up against the wall a second time, and, as I become aware of how large he is, he holds me against the wall with his shoulder and jams his hand under my coat dress and pulls down my tights.

I am astonished by what I’m about to write: I keep laughing. The next moment, still wearing correct business attire, shirt, tie, suit jacket, overcoat, he opens the overcoat, unzips his pants, and, forcing his fingers around my private area, thrusts his penis halfway — or completely, I’m not certain — inside me. It turns into a colossal struggle. I am wearing a pair of sturdy black patent-leather four-inch Barneys high heels, which puts my height around six-one, and I try to stomp his foot. I try to push him off with my one free hand — for some reason, I keep holding my purse with the other — and I finally get a knee up high enough to push him out and off and I turn, open the door, and run out of the dressing room.

The whole episode lasts no more than three minutes. I do not believe he ejaculates. I don’t remember if any person or attendant is now in the lingerie department. I don’t remember if I run for the elevator or if I take the slow ride down on the escalator. As soon as I land on the main floor, I run through the store and out the door — I don’t recall which door — and find myself outside on Fifth Avenue.

(2) Tara Reade's account (from Current Affairs):

And then it wasn’t long after that, that the scheduler called me in and said, I want you to take this to Joe. He wants you to bring it, hurry. And I said, okay. And it was a gym bag. She called it an athletic bag. She said he was down towards the Capitol and “he’ll meet you.” And so I went down and he was at first talking to someone, I could see him at a distance and then they went away. And then, we were in like the side area. And he just said, Hey, come here, Tara. And then I handed him the thing and he greeted me, he remembered my name. And it was the strangest thing. There was no like exchange really. He just had me up against the wall. I was wearing a shirt and a skirt but I wasn’t wearing stockings. It was kind of a hot day. And I was wearing heels and I remember my legs had been hurting from the marble of the Capitol, walking on it. So I remember that kind of stuff. I remember it was kind of an unusually warm day. And I remember he just had me up against the wall and the wall was cold. It happened all at once. The gym bag, I don’t know where it went. I handed it to him. It was gone and then his hands were on me and underneath my clothes. And then he went down my skirt, but then up inside it and he penetrated me with his fingers. And he was kissing me at the same time and he was saying something to me. He said several things, I can’t remember everything he said. I remember a couple of things. I remember him saying first before, like as he was doing it, “do you want to go somewhere else?” And then him saying to me when I pulled away, when he got finished doing what he was doing and I pulled back and he said, “come on man, I heard you liked me.” And it’s that phrase [that] stayed with me because I kept thinking what I might’ve said [to make him think that]. And I can’t remember exactly, if he said “I thought,” or “I heard,” but it’s like he implied I had done this.

Again, no 'afterwards we learned this or we heard that', just judge the two accounts on what is said here and which you find credible, if either, or both, or none. If it's "could have happened but I don't know" or "did happen based on what's here" or "never happened". But base that opinion on what you read here of both allegations, not any political swirling around in the past or present.

Both allege it happened in a secluded area. Why does Carroll get an $83 million payout for Trump saying she's a liar while Reade - doesn't?

I have to stop you there, Trump's alleged defamation was not a flat "I did not have sexual relations with that woman" or "It was consensual." The initial verdict was much, much lower; Trump manages to keep escalating it by continuing to deny the court's verdict in his inimitable manner. Trump will always strike me as an unlikely candidate to be railroaded simply because he could, so easily, avoid the railroading by simply choosing not to do the things he does. "I was acquainted with Ms. Carroll and thought we had a friendly relationship. It is unfortunate that she does not remember it the same way. I will continue to appeal the verdict." There goes your $83,000,000. Trump is trapped in a whirligig of his own creation.

That said, I weakly believe that both claims are more-likely-than-not true in a Rashomon sense of true: they reflect the internal experience of the women who made the claims. I strongly believe that neither claim ought to be justiciable, both because they are old and ought to be out of the SoL, and because as my evidence prof put it "Either Rape law is wrong or evidence law is wrong, but they can't both be correct." The standard of evidence demanded in rape law is so far below the standard demanded in virtually every other felony that the result is absurd, and we've already seen it used tyrannically against regime opponents.

Neither claim is provably true in a way that should lead to legal consequences for the accused. But neither is it provably untrue in a way that should lead to legal consequences for the women involved.

That said, I think you're going to end up just picking a fight here with the theory that:

Try, as far as you can, to put the background and any opinions you have on X versus Y out of your mind. Just go by the statements of what was accused and alleged and no interpretation "well of course A is the type to do this so B is telling the truth but C is not the type so D is lying".

Because now people are going to conceal that phase of their thinking. Or not. More likely, it seems that virtually everyone in a position of power (except Al Gore and his wife) are liable to become aggressive sexual deviants.

I strongly believe that neither claim ought to be justiciable, both because they are old and ought to be out of the SoL

I think that is why Trump is not being criminally charged, but the defamation that he is being charged for is recent.

Do you think that's still improper, that if the matter of fact which the defamation centers on is outside SoL, the court shouldn't be allowed to say whether or not recent statements were defamatory?

Given that civil courts have a lower evidentiary burden to begin with, I don't think this naturally follows.

Do you think that's still improper, that if the matter of fact which the defamation centers on is outside SoL, the court shouldn't be allowed to say whether or not recent statements were defamatory?

I addressed this in my initial comment, but I'll work it out a bit further here.

  1. Statements of personal innocence, and defending your friends' innocence, should never be punishable in and of themselves. "I did not rape her" should not be construed as defamation.

  2. Statements that impugn someone's character unnecessarily can probably still be defamatory, but because truth is an absolute defense to libel and the truth of the matter is somewhat impossible to prove, it should probably be limited to cases where the defamation is extreme.

  3. Given that civil courts have a lower evidentiary burden to begin with, I don't think this naturally follows.

I disagree, and find the civil vs criminal distinction cold comfort. The civil courts ultimately have power of discovery to upend your life, the verdicts will be enforced by the courts and ultimately by men with guns, they create "facts" that can't be contradicted later.

For the present case, on balance I don't think Trump should face any liability for defamation in this case. It does meet the legal standards involved and procedures were followed, and he could easily escape liability by simply...cutting it out with the nonsense. But it is inappropriate to punish someone for protesting their innocence.

But it is inappropriate to punish someone for protesting their innocence.

I agree, but I really, really don't think that's a fair summary of what is being charged as defamation here.

I am going to just admit up front that I have not taken time to hunt down every speech and Truthbomb (or w/e they're called) or other public statement Trump has made about this which was cited as defamatory and judge them myself. If you have, you can pull rank here.

But my impression from summaries I've seen is that it was much more of an attack on her character and motives and person, made repeatedly and as part of stump speeches and campaign rhetoric and as political strategy, on a way that painted her as a political actor and possibly part of a conspiracy, in away that turned his supporters against her in ways that upended her life in major ways, and made her feel/be unsafe.

Just saying that you are innocent shouldn't be defamation, but that doesn't mean you can't do other things to defame someone at the same time as you claim your innocence.

I've followed the story very shallowly, I read Carroll's original short story (it's very engaging) and I browsed articles in the WSJ and NYT in between since.

Maybe what trump said is worse than I think? But my impression is that while he has put his finger into the fan blade over and over, it hasn't crossed the line as I would draw it. Unfortunately I don't get to draw those lines.

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