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PaperclipPerfector  2mo ago (text post)   18347 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.

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.

Agree. It's hard to overstate just how extreme this can extend, even in a totally non-sexual context.

I once had an HR interview as a bystander to an incident between two other colleagues. It look me 15 minutes of variations on "wait, what are you talking about?" to the HR rep to realize what I had seen as an forgettable, minor disagreement between the two was reported as "verbal assault and harassment" by one party.

And that reporting party was a Dude.

This is why physical evidence standards, documented intent, provable patterns of behavior etc. are so important in any cases wherein emotional salience is so high. I think in both of these cases, a whole lot of that is lacking.

@FiveHourMarathon is objectively correct in stating that the award and verdict is an own-goal on the part of Trump. The compensatory vs punitive damage awards clearly indicate that the bulk of the $83 mm is to convince Trump that he should really quit talkin' shit about Carroll.

The compensatory vs punitive damage awards clearly indicate that the bulk of the $83 mm is to convince Trump that he should really quit talkin' shit about Carroll.

If the accusation is false, just shut up, fork over the dough, and take the lumps? I wouldn't be inclined to do that myself were I accused of a serious crime. But this is getting outside the limits I want to impose on the question, which is just: is the account as given credible?

I'll discount Rashomon as too much nuance and take it that, without supporting evidence, your view is neither claim is good enough to stand up on its own?

The compensatory vs punitive damage awards clearly indicate that the bulk of the $83 mm is to convince Trump that he should really quit talkin' shit about Carroll.

It's clearly political.

How so?

I’d have expected loud, grating defamation to be very unpopular with a jury whether or not politics was involved. It pattern-matches to an “above the law” stereotype that Americans really, really don’t like.

Carroll didn't surface her claims until after Trump was president, for a book she was writing. She accused other men but sued Trump.

The case would not have progressed if not for New York State passing a new law to extend the statute of limitations in cases of rape. It was understood that this would allow Carroll to sue Trump over her claims.

Her lawsuit has been funded by Reid Hoffman, the same billionaire donor who (until recently) was funding Nikki Haley's campaign.

The judge was prejudiced against Trump from the start. The evidence his lawyer tried to admit was not allowed. Trump was largely prevented from speaking, on the grounds that the fact that he violated Carroll had already been established, so he could say nothing in his own defense. What little Trump did say the judge instructed jurors to ignore, except for his yesses and nos. The judge then instructed jurors to remember that they had the power to punish Trump with punitive damages. Maybe it's possible a New York jury decided to interpret these instructions in a totally apolitical way? I severely doubt it.

Trump's "defamation" was calling Carroll a liar who made up her claim to sell books. She demonstrably lied in several instances (the judge instructed the jury to ignore all such evidence every time it came up). Several of the remarks, in fact, were made by Trump before the statute of limitations was changed so Carroll could evensue him for rape.

The whole thing is political, from front to end. There is nothing ordinary about this case. The jury judges and accuser deserve no benefit of the doubt. That Trump has been declared guilty is obviously, facially, against a plain reading of the facts. The most obvious explanation is that it is political.

The judge was prejudiced against Trump from the start. The evidence his lawyer tried to admit was not allowed. Trump was largely prevented from speaking, on the grounds that the fact that he violated Carroll had already been established, so he could say nothing in his own defense. What little Trump did say the judge instructed jurors to ignore, except for his yesses and nos. The judge then instructed jurors to remember that they had the power to punish Trump with punitive damages.

How is any of this evidence of the judge being prejudiced?

The evidence his lawyer tried to admit was not allowed.

Surely you recognise that it is absolutely routine for judges to make rulings on what things can and can't be used as evidence in a case? If you want to claim the judge did something wrong here you'll need to argue he applied the rules of evidence incorrectly or something.

Trump was largely prevented from speaking, on the grounds that the fact that he violated Carroll had already been established, so he could say nothing in his own defense. What little Trump did say the judge instructed jurors to ignore, except for his yesses and nos.

Yes, and this is entirely appropriate. They already had a whole other trial to determine if he sexually assaulted her, and it found that he did. This was a defamation trial over whether or not he defamed her, and if so, over how much he owed her in damages. The judge ensured that the jury only considered evidence relevant to the case before them.

The judge then instructed jurors to remember that they had the power to punish Trump with punitive damages.

Should he have not informed the jury of what they could and could not do??

@FiveHourMarathon is objectively correct in stating that the award and verdict is an own-goal on the part of Trump. The compensatory vs punitive damage awards clearly indicate that the bulk of the $83 mm is to convince Trump that he should really quit talkin' shit about Carroll.

But here you're continuing to support the double standard. Carroll can claim Trump raped her all she wants and nothing should come of it, but if Trump calls her a liar, he's liable for defamation over and over again.

Trump could absolutely have chosen to sue her for defamation for her claim. There is no legal double standard in that, beyond claims of "the rules don't matter."

Trump can also call her a liar without committing defamation, he has repeatedly chosen not to. The framework for the non-apology apology is so well known at this point that it's practically available as a template on EForms next to promissory notes and ground leases.

That he's failed to do so is a matter of temperament.

Trump could absolutely have chosen to sue her for defamation for her claim.

He did. His claim got thrown out.

Do you have a link to that anywhere? I wasn't aware he had tried, I can't find that noted in the articles I'm looking at (though obviously it is possible it was left out intentionally).

It gets mentioned occasionally. Here.

Thanks! Very helpful.

I'll meet you half way.

I think you're right in that there does appear to be a double standard on Carroll's allegations (which a jury denied) and Trump's ability to say whatever he wants (at whatever volume he wants) about it. I'm not an expert enough in defamation to say where the line is.

But I still stand by my "own-goal" analogy because either a lot or all of this (past the first jury trial, to be specific) could've been avoided if Trump just STFUs and relies on milquetoast cliches - "The justice system functioned and I abide by the verdict." He keep creating new opportunities for potential attacks. The fact that these attacks are/may be politically motivated is irrelevant because (a) He keeps creating the opportunities and (b) It is impossible for him not to know how much certain groups have made it their existential purpose to hunt him through the courts. When you mix egotism with a martyrdom complex, you get a lot of frivolous legal activity.

To refer back to the One True Gospel, The Wire;

"Keep it boring, String, keep it real fuckin' boring" - Prop Joe

And, from the Prophet Lil Wayne;

"Real G's move in silence like lasagna"

But I still stand by my "own-goal" analogy because either a lot or all of this (past the first jury trial, to be specific) could've been avoided if Trump just STFUs and relies on milquetoast cliches - "The justice system functioned and I abide by the verdict."

Yes, Trump can avoid anything more if he just capitulates -- shuts up and allows Carroll to accuse him all she wants without answer. That is indeed how the justice system "functioned". The problem is the justice system got utterly broken.

Without answer, except for getting to make an actual defense in court? Twice?

His personal brand demanded that he make a spectacular, performative stink about the issue, rather than issuing a press release and letting the lawyers sort it out. The jury decided that was the wrong choice.

I don’t see the problem with assigning a monetary incentive not to be maximally inflammatory.

2024, The fallacious ad hominem known as tone policing becomes law.

Always has been.

No, really. “Obscenity” is a bad enough category as it is. “Fighting words” is another. We ask judges and juries to assess the tone of speech all the time, which is part of the reason “actual malice” shows up in libel laws.

Sure, but that's a general brokenness to the justice system, and Trump's increasingly large legal wounds are mostly a result of him refusing to stop walking on the broken glass even when he could just step around it and only be a bit inconvenienced, not the system being biased against him.

This is not a general brokenness to the justice system. Finding someone guilty for defamation for claiming as false an accusation of rape made against them many years after the time of the alleged event, without furthr evidence, is a specific brokenness for this case.

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