It is a little difficult to explain the tortuous procedural timeline of the ongoing litigation between E. Jean Carroll, and former President Donald Trump. Two separate lawsuits are pending and one is post-trial. It all seems to blend into one. Here’s the Reader’s Digest version, as previously reported:

• Carroll filed a defamation lawsuit against Trump in 2019 for comments he made about her (and her allegations) in 2019.
• Carroll sued Trump in 2022 for defamation, rape/sexual assault, and comments he made in 2022 about her (and the accusations she made).
• The 2022 lawsuit was tried, and a jury in May 2023 found Trump guilty of sexual abuse (not for rape), and defamation.
• Carroll claimed to CNN and others that Trump had raped her, despite the jury’s verdict.
• The following night, Trump said to CNN that Carroll was making up her story and was a psychopath.
• Carroll changed her claim to “sexual abuse” instead of “rape”, and included Trump’s CNN comments.
• Trump has filed a counterclaim for the 2019 lawsuit over Carroll’s CNN remarks that he had raped him.
• The DOJ is scrambling now to distance itself from the suit. It had previously said that it would replace Trump in 2019.

The bolded section above provides a quick overview of the second lawsuit (“Carroll II”), the one that was tried in the spring, and ended with a five-million-dollar verdict in favor of Carroll. After the verdict, Trump submitted a Motion for New Trial. This is common in post-trial litigation and is often a requirement for filing an appeal.

Judge Lewis Kaplan (who presided over Carroll II and, incidentally is also the assigned trial judge for Carroll 1, but is not related to Carroll’s attorney, Roberta Kaplan) issued a decision on Wednesday, denying Trump’s Motion for New Trial or Remittitur, (which sought to reduce the jury award). It’s not surprising that the motion was denied. In my nearly 30-year career as a litigator, I can count on one finger the cases where post-trial requests (whether from my client or the other party) have been granted. Even when the judges are neutral, they often have an obvious predisposition toward one or both parties. Trial judges are more inclined to defer to the verdicts of their juries (and to stand by their own decisions), and leave it to appellate judges whether there is any legal basis to overturn a decision.

What catches the attention of this particular ruling, however, is what strikes me as sort of the reverse-Whoopi-Goldberg rationale about the term “rape.” Goldberg, as you may recall, once (in)famously defended director Roman Polanski, insisting that his having sex with a drugged, passed-out 13-year-old girl — when he was 43 — wasn’t “rape-rape.”

The jury in Carroll II found that Trump sexually assaulted (and defamed), but not raped, Carroll. In denying Trump’s motion for a new trial on the sexual abuse case, Judge Kaplan made a bizarre turn. He spent several pages of his ruling — with footnotes — explaining that, even though the jury didn’t find that Trump had raped Carroll based on a narrow definition of “rape,” that doesn’t mean Trump has not “raped” Carroll.

Carroll II’s jury verdict was unanimously in favor of Carroll. The only issue on which Ms. Carroll failed to prevail was whether or not she could prove that Mr. Trump “raped her” within the narrow technical meaning of one section of the New York Penal Law, a section which states that in New York criminal prosecutions the term “rape” is only used for vaginal penetration of a penis. The New York Penal Law does not consider rape for the penetration of the vagina by force or without consent, whether it is done with fingers, other body parts, or any other article or material. Instead, it is referred to as “sexual abuse.”

The following notes show that the New York Penal Law’s definition of rape is much narrower than its meaning in modern common parlance or dictionaries. It is also different from the definitions of “rape” found in federal and state criminal laws, as well as other sources. The fact that Ms. Carroll did not prove she was “raped,” as defined by the New York Penal Law, does not mean she did prove Mr. Trump “raped,” as most people understand “rape.” As shown in the following notes, the jury determined that Mr. Trump had indeed “raped,” as it is commonly understood.

Why does this matter to you? This is important because Mr. Trump claims that the jury awarded excessive damages to Ms. Carroll for her sexual assault claim because they concluded that he did not “rape” Ms. Carroll. He says that the jury’s verdict could have been based on nothing more than “groping [Ms. Carroll’s] breasts through her clothing or similar conduct,” which is far from rape. And while Mr. Trump may be right that such groping could be considered excessive, this undermines, rather than supports, his argument. His argument is completely unpersuasive.

The jury didn’t award Carroll more than $2,000 for touching her breasts with her clothes, however wrong that may have been. No evidence was presented to support such behavior. The jury impliedly concluded that Mr. Trump had deliberately and forcefully penetrated Ms. Carroll’s vagina using his fingers. This caused immediate pain as well as long-lasting emotional and psychological damage. Mr. Trump’s arguments ignore the majority of evidence presented at trial and misinterpret the jury verdict. They also focus on the New York Penal Law’s definition of rape, ignoring the everyday meaning of this word and the evidence that occurred between Mr. Trump and Ms. Carroll.

Here’s a TL/DR: According to New York Penal Law, “rape” only involves penile penetration. The jury found that Trump sexually abused Carroll, even though it didn’t find that Trump had raped her under this very narrow definition. (Carroll provided extensive evidence of digital intrusion). She did not provide evidence of groping under clothing. Many people and many jurisdictions consider digital penetration to be “rape”. The judge’s statement is not meant to defend or excuse Trump, but to hold him accountable.

Curiously, the judge didn’t need to go through this rather complex semantic exercise to reject the motion. He only had to point out that the jury determined that Trump sexually abused Carroll, which under the evidence provided implied that he’d digitally penetrated her and caused both physical and mental harm to her. This justified the two-million-dollar award.

This, to my mind, is a direct consequence of Trump’s counterclaim (Carroll I) in the still-pending suit. Trump claims that Carroll defamed Trump when she said on CNN that he had raped her the day following the Caroll II verdict. The two lawsuits are separate, so Judge Kaplan ruling on the Carroll II motion for post-trial will not be binding on Carroll I. However, it does not bode well for Trump’s chances of success with his counterclaim.