Why Trump’s ‘Access Hollywood’ tape can be used against him in E. Jean Carroll’s defamation case

Donald Trump bragging on tape about grabbing women’s genitals didn’t stop him from winning the presidency in 2016, but it could hurt him at trial next month. The infamous “Access Hollywood” tape has arisen in E. Jean Carroll’s defamation case against Trump, a case stemming from his 2019 denial that he raped her in the mid-1990s.

In arguing that the 2005 recording shouldn’t be allowed at trial, Trump’s lawyers pointed out the general principle that evidence of a person’s propensity for doing something isn’t admissible. It’s true that that’s the general principle. However, there’s a federal rule that provides an exception to that principle, for claims “based on” an allegation of sexual assault. The rule states

In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation.

Still, Trump’s team argued that Carroll shouldn’t get the tape into evidence, reasoning that her claim isn’t really “based on” an alleged sexual assault, given that it’s a defamation case. (Carroll has a separate suit against Trump alleging sexual assault and that a different statement, from October, was defamatory.)

But that distinction can’t save Trump here, according to Judge Lewis Kaplan in the Southern District of New York. In a ruling Friday, the judge noted that even though it’s a defamation case, the question at the heart of it is whether Trump lied when he denied raping Carroll. So it is a sexual assault case in a way, because Carroll wants to prove that the assault happened, in order to prove that Trump’s denial is false.

Yet, Kaplan still had to determine whether the “Access Hollywood” tape could be used to show evidence of a propensity for sexual assault. He concluded that it could, writing that a jury could reasonably find that the 2024 Republican presidential candidate “has had contact with women’s genitalia in the past without their consent, or that he has attempted to do so.”

And that’s not all. The judge also ruled that the jury can hear evidence regarding other women’s assault allegations against Trump, too — evidence that Kaplan said could be quite important to the jurors deciding this “he said, she said” case.

So, with this powerful evidence at Carroll’s disposal, 2023 may turn out to be a year of accountability for Trump not only in the criminal arena — as a Manhattan grand jury may be indicting him soon — but in the civil arena as well.

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