Judge says E Jean Carroll allegation Trump raped her is ‘substantially true’ in court dismissal

Donald Trump suffered another legal reversal on Monday, losing his counterclaim for defamation against E Jean Carroll, the writer against whom he was found liable for sexual abuse and defamation and fined $5m, and who continues to pursue a separate defamation case against him.

Dismissing the counterclaim, a judge in New York, Lewis A Kaplan, said that when Carroll repeated her allegation that Trump raped her, her words were “substantially true”. Kaplan also set out in detail why it may be said that Trump raped Carroll.

The former president, 77, already faces 78 criminal indictments for election subversion, retention of classified documents and hush-money payments to a porn star. Expected to be indicted for election subversion in Georgia, he also faces investigations of his business practices.

Nonetheless, he enjoys huge leads in polling regarding the Republican presidential nomination.

Carroll first said Trump assaulted her – in a changing room of a New York department store in the mid-1990s – in a book in 2019.

The allegation joined a host from other women who said Trump assaulted them during his career in real estate and entertainment, before entering politics.

Based on remarks made while he denied her claim, Carroll sued Trump in federal court, for defamation. She also sued in New York state, for defamation and sexual battery, under a law giving survivors of past assaults a one-year window to act.

The federal case continues, with Carroll seeking $10m.

In May, the New York case was decided in favour of Carroll. After that ruling, she and her lawyer, Roberta Kaplan, gave interviews. Trump’s counterclaim centered on comments in which Carroll said Trump raped her.

“Oh yes he did, oh yes he did,” she told CNN.

Carroll also said she had told a Trump lawyer: “He did it and you know it.”

Trump denies assaulting Carroll – whom he called a “whack job” in his own remarks to CNN after the New York verdict, prompting Carroll to increase her damages claim.

In his counterclaim, Trump said Carroll “made these statements knowing each of them were false or with reckless disregard for their truth or falsity”.

Dismissing the counterclaim, Judge Kaplan provided an unsparing analysis of the legal issues that informed the New York verdict. He wrote: “The only issue on which the jury did not find in Ms Carroll’s favour was whether she proved that Mr Trump ‘raped’ her within the narrow, technical meaning of that term in the New York penal law.

“The jury … was instructed that it could find that Mr Trump ‘raped’ Ms Carroll only if it found that he forcibly penetrated Ms Carroll’s vagina with his penis.

“It could not find that he ‘raped’ her if it determined that Mr Trump forcibly penetrated Ms Carroll’s private sexual parts with his fingers – which commonly is considered ‘rape’ in other contexts – because the New York penal law definition of rape is limited to penile penetration.”

Kaplan had already outlined why it was not defamation for Carroll to say Trump raped her.

“As the court explained in its recent decision denying Mr Trump’s motion for a new trial on damages and other relief [in the New York case] … based on all of the evidence at trial and the jury’s verdict as a whole, the jury’s finding that Mr Trump ‘sexually abused’ Ms Carroll implicitly determined that he forcibly penetrated her digitally – in other words, that Mr Trump in fact did ‘rape’ Ms Carroll as that term commonly is used and understood in contexts outside of the New York penal law.”

Kaplan also struck some of Trump’s defenses, including that he had “absolute presidential immunity” for remarks made while in office, and that Carroll was ineligible for punitive damages.

Trial in the federal case is scheduled for 15 January, close to the start of the Republican primary as well as other court cases in which Trump is embroiled.

Roberta Kaplan, Carroll’s lawyer, said she was pleased with Judge Kaplan’s decision, and predicted the January trial “shouldn’t take very long to complete”.

Alina Habba, a lawyer for Trump, said: “We strongly disagree with the flawed decision and will be filing an appeal shortly.”