Trump, Rape, and ABC News

The president-elect's lawsuit signals the threat he poses to the 1st Amendment

Donald Trump raped a woman. A jury found that Mr. Trump in fact did exactly that.

Let me rephrase that. A “jury found that Mr. Trump in fact did exactly that.”

Those words are not mine (thus why I added quotation marks.) They are a direct quote from Federal District Judge Lewis A. Kaplan as written on page five, lines 2-3 of his Memorandum Opinion Denying Defendant’s Rule 59 Motion, filed on July 19, 2023 in the Southern District of New York.

Next quote: “Donald Trump has been found liable for rape.”

Those are the words of George Stephanopolous, the host of This Week with George Stephanopolous. See any difference of the sting inflicted by the statement of Kaplan and that of Stephanopolous. No? That’s because there isn’t one.

So how can it be that Trump sued Stephanopolous and ABC News for saying exactly what the court found to be a proper way to refer to the jury’s verdict? And why in the world would ABC settle? The answer to those questions underscore one thing: Trump, and the MAGA Supreme Court, are waging war against the First Amendment. And if Americans don’t pay attention, the news media may become little more than a version of Pravda under the Soviet Union.

To explain what’s going on, let’s first take a look at a different crime. Over the past few decades, the news media and the Justice Department have people been described more than 10,000 times of having been convicted of insider trading. Yet, under Trumpian interpretations of law and linguistics, each of those instances is libelous. No one has been convicted of insider trading, the Trump logic argues. Instead, they have usually been found guilty of wire fraud and mail fraud. There is no criminal law that specifically names insider trading as a crime (except for recent legislation signed by Joe Biden making insider trading by members of Congress illegal.)

So, in the Trump world, (except a member of Congress) anyone who has been convicted of insider trading could sue a member of the media for saying they had been convicted of insider trading. That is because there is a huge difference between statutory language and the English language. We are not automatons who use the legal terms to describe what those words mean when speaking to the general public. No one who bought or sold stocks while in possession of material, non-public information would just be described as having been convicted of mail fraud and wire fraud in the news media or in description of the crime by prosecutors. It’s insider trading, regardless of the statutory language.

This brings us to one of the two civil lawsuits brought by E. Jean Carroll against Trump. This will get blunt, because unfortunately it has to in order to explain the absurdity of Trump’s lawsuit.

The jury found that Trump had attacked Carroll by penetrating her vagina with his fingers, but not with his penis. The case required the jury to use the language in the New York Penal Law which uses a “narrow, technical” (words from Judge Kaplan) definition of rape, that is, forcible vaginal penetration with a penis without consent. In fact, had Trump engaged in forcible anal penetration with his penis, that also would not be rape under the statutory language. Or if he forced someone to perform oral sex on him without consent.

But could you imagine Trump suing because someone described it as rape when he forcibly penetrated a woman anally rather than vaginally? After all, the statutory language says specifically rape in the first degree only encompasses vaginal penetration with a penis. (The absurd statutory language has been fixed this year.)

God, this is getting sickening. But sorry, it has to be explained.

Trump was found to have forcibly penetrate Carroll’s vagina with his fingers. Just like if he had penetrated her anally with his penis, under the narrow, technical statutory language in New York, this was not rape under the narrow, technical statutory language in New York.

Now go to Alaska. It’s rape. Same in California. And Delaware. And Indiana. And Kansas. And Maryland. And in the military. And in state after state. Under Trumpian use of language, there are no rapists in Arizona, Arkansas, Conneticut, Florida, Hawaii, Illinois, Kansas, Maine, Michigan, Minnesota, New Jersey, and many other states. That’s because none of them use the actual word “rape” in their laws - instead they use words like “sexual abuse,” “sexual battery,” “criminal sexual conduct,” and other terms. But in all of those, Trump would have been found to have violated the law against rape, and thus would be a rapist.

In fact, when politicians say something about the number of rapes going up or down, in the Trump world, the numbers they use are false. But they are relying on the Federal Bureau of Investigation’s Uniform Crime Report Summary Reporting System, which defines what Trump was found to have done as rape.

Return to the concept of common usage, which is the standard for journalism. According to the dictionary, it’s rape. Even in Black’s Law Dictionary, the standard for all lawyers, it’s rape. And as for relying on the dictionary to define the meaning of words, that’s a tactic that Supreme Court Justice Samuel Alito has used in upholding cases brought by religious groups and in raging against extending rights to transgender people.

This all is why, heading back to the words of Judge Kaplan, “the proof convincingly established, and the jury implicitly found, that Mr. Trump deliberately and forcibly penetrated Ms. Carroll’s vagina with his fingers, causing immediate pain and long lasting emotional and psychological harm. Mr. Trump’s argument therefore ignores the bulk of the evidence at trial, misinterprets the jury’s verdict, and mistakenly focuses on the New York Penal Law definition of “rape” to the exclusion of the meaning of that word as it often is used in everyday life and of the evidence of what actually occurred between Ms. Carroll and Mr. Trump.”

So, if Stephanopolous had said, “Donald Trump was found to be a rapist as defined in the dictionary, almost every state in the country, under federal law, and in the words of the judge in the case,” it would have been fine. But in a bizarre ruling by a judge in Florida, none of that matters because, relying on the narrow and technical terminology of New York Law, the jury did not find it to be “rape” because standard use of language is not relevant. And while yes, they referred to Judge Kaplan’s words, they didn’t do it soon enough in the report.

Under libel laws, ABC should also have been protected because Trump is a public figure. In that instance, for Stephanopolous’s words to be libel, he would have had to have used them with a reckless disregard for the truth. They also should have been protected under the “substantial truth” standard, which means a statement that contains small factual inaccuracies may still be considered true if the "gist" or "sting" of the statement is true. And given that, in almost any state, under federal law, in the military, in the dictionary and so on Trump would have been found to have committed rape, it is hard to describe Stephanopolous’s words as anything other than a substantially true statement.

Which leads to the question, why in the world would ABC settle? In any other time over the last few decades, they never would have. But now we have judges who are more concerned about dancing on the head of a linguistic pin and ignoring the colloquial meanings of words rather than ensuring this country has a free and fair press. We have a rage-filled group of Americans known as MAGA who, like any good cultists, believe that anything Trump says is true. We have a media owned by large corporations - in this case, Disney - that are more concerned about endless headlines that might damage their other businesses rather than the principles of journalism. And we have a Supreme Court that has jurists who have already salivated over the possibility of throwing out the precedents that protect journalists in telling people in this country what is going on.

Put on top of all of it: We have a president-elect who has made clear the standards of his administration will not be abiding by the law, but rather waging war against anyone he perceives as his enemies, including the media. Already, CBS, the New York Times, The Washington Post, and more have been hit by Trump lawsuits because they said things he did not like.

It may go against everything that profit-obsessed corporations believe in, but if they are going to own news organizations, they need to defend the news. That means, when a company like Disney caves out of fear of public anger against their other businesses, then those who believe the First Amendment matters should be prepared to relentlessly criticize, verbally attack, and boycott every business they own. (Turnabout is fair play, after all.) In this instance, if you want to know the business owned by this company that believes the Constitution is less important than earnings per share, here is the list - feel free to boycott:

• ESPN (80% stake)

• Marvel

• Lucasfilm

• A&E (50% equity holding with Hearst Corporation)

• The History Channel (50% equity holding with Hearst Corporation)

• Lifetime (50% equity holding with Hearst Corporation)

• Pixar

• Hulu

• Core Publishing

• The Fox Network Group

• Disneynature

• Lucasfilm

• Marvel Studios

• 20th Century Studios (formerly 20th Century Fox)

• Searchlight Pictures (formerly Fox Searchlight Pictures)

• Pixar Animation Studios

• ABC Television Network

• ABC Entertainment

• ABC Television Studios

• ABC Digital

• ABC News

• WLS-7 Chicago, Illinois

• KFSN-30 Fresno, California

• KTRK-13 Houston, Texas

• KABC-7 Los Angeles, California

• On The Red Carpet

• WABC-7 New York City

• WPVI-6 Philadelphia, Pennsylvania

• WTVD-11 Raleigh-Durham

• KGO-7 San Francisco, California

• Live Well Network

• Disneyland

• Disneyworld

• Disney Cruise Line

There are lots more. But that’s enough. Normally, I would rage about the settlement and leave it at that. In this case, though, since a large part of Disney’s settlement and knifing the First Amendment involved protecting its businesses from MAGA, perhaps they should learn to fear the rest of this country’s reaction when they kowtow to an authoritarian regime.

Finally, what should we say about Trump in the news media? He doesn’t want anyone to say he was found to have committed rape? Fine. So from now on, let’s say, “the jury found that Trump attacked a woman in a department store, forcibly jamming his fingers inside her vagina, which in most states in this country is called rape.”

I doubt he will think that’s much better than what Stephanopolous said. In fact, I would say it’s worse. So feel free to say it.