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MEN AND WOMEN NOT EQUAL UNDER THE LAW
Samuel Alito would be proud of how Trump's lawyer has defended Trump's rape case
Donald Trump with his attorney, Joseph Tacopina (center). (Photo by Andrew Kelly-Pool/Getty Images)
Peter Burgess COMMENTARY
Samuel Alito would be proud of how Trump's lawyer has defended Trump's rape case
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Monday May 01, 2023 · 7:54 PM EDT
NEW YORK, NY - APRIL 04: Former U.S. President Donald Trump sits with his attorneys Joe Tacopina and Boris Epshteyn inside the courtroom during his arraignment at the Manhattan Criminal Court April 4, 2023 in New York City. Trump pleaded not guilty to 34 felony counts stemming from hush money payments made to adult film star Stormy Daniels before the 2016 presidential election. With his indictment, Trump will become the first former U.S. president in history to be charged with a criminal offense.
Thanks to Joseph Tacopina, the lawyer defending Donald Trump in the lawsuit brought by former Elle journalist E. Jean Carroll, alleging that Trump raped her in a Bergdorf Goodman dressing room and then lied about in statements to the public, we’ve learned an awful lot about what Ms. Carroll did and didn’t do at the time of the alleged assault.
As reported by Jessica Bennett for the New York Times, we’ve learned, for example, that although she (allegedly) stomped on Trump’s foot, kneed him in the groin, and pushed him off her body, she did not actually “scream.” We’ve learned that although she did contact a close friend, she did not contact the police to file a report. We’ve learned that although she allegedly sustained bruising as a result of Trump’s assault, she did not photograph the bruises. And aside from these factual nuggets, we’ve learned, through Tacopina’s courtroom insinuations, that she may possess certain character traits that could render her testimony less reliable.
The reason we’ve learned these things is because Mr. Tacopina, who naturally is trying his best to exculpate Trump, is following a playbook for defending accusations of rape that has existed in the law for centuries, in fact long pre-dating the founding of the American republic. These tried and true methods— which focus heavily on discrediting the victim — harken back to one of the original scholars of what we now understand to be the modern legal system, William Blackstone, whose legal Commentaries were almost universally relied on for their explication of English common law. With specific regard to the crime of rape, however, Blackstone himself drew upon the precepts of his predecessor, the 17th century English barrister and jurist Lord Matthew Hale.
If the name of Matthew Hale seems familiar, it should. As noted by Bennett, Hale was cited eight times by Supreme Court Justice Samuel Alito in the Dobbs v. Jackson Women’s Health Association decision overruling Roe v. Wade.
Putting it mildly, Sir Matthew did not take kindly to women accusing men of rape. In a review last July of John Wood Sweet’s book titled The Sewing Girl’s Tale, detailing an account of an 18th-Century rape trial in New York City, Tali Farhadian Weinstein, writing for the New York Times, explains not only how Hale’s theories predominated the defense strategy in that case, but foreshadowed the strategy that would be employed by lawyers for centuries to come:
According to Sweet, Hale, who was deeply anxious about malicious women bringing false accusations against innocent men, believed “the question was not simply whether a woman had been forced to have sex against her will but also whether her reputation was good enough, whether she had resisted vigorously enough, whether she had cried out loudly enough, whether she had sustained sufficiently conspicuous physical injuries and whether she had reported the crime soon enough.” Nearly every defense attorney funneled his questions through the Hale framework. And when it was the judge’s turn to instruct the jury in advance of their deliberations, he declared Hale’s ideas “just” and thus, as Sweet writes, completed “the transformation of Hale’s commentaries from suggestions written by a retired jurist into rigid rules that defined the nature of settled law and that were binding on the jurors.”
At the outset of the “inadvertent” release of the draft Dobbs opinion, many commentators noted that it seemed odd that Justice Samuel Alito would so strongly champion someone so obviously misogynistic as Hale, who sentenced women to death as “witches” and who famously ruled that it was impossible for a husband to rape his wife.
As noted by Ken Armstrong, writing for ProPublica in May, 2022:
Hale’s influence in the United States has been on the wane since the 1970s, with one state after another abandoning his legal principles on rape. But Alito’s opinion resurrects Hale, a judge who was considered misogynistic even by his era’s notably low standards. Hale once wrote a long letter to his grandchildren, dispensing life advice, in which he veered into a screed against women, describing them as “chargeable unprofitable people” who “know the ready way to consume an estate, and to ruin a family quickly.” Hale particularly despaired of the changes he saw in young women, writing, “And now the world is altered: young gentlewomen learn to be bold” and “talk loud.”
In a legal opinion that fairly reeks of its own misogyny, Alito repeatedly cited Hale as authority for the fact that this country’s legal system had long been opposed to abortion. As pointed out by Jill Elaine Hasday, writing for the Washington Post, Alito even went so far in his reliance on Hale that he selectively edited him for the Dobbs opinion:
Alito reports that Hale “described abortion of a quick child who died in the womb as a ‘great crime’ ” while glossing over the key part of that passage. Hale wrote that abortion was a crime “if a woman be quick or great with child.” Note the “if.”
Second, Alito relies on sources such as Hale without acknowledging their entanglement with legalized male supremacy. The men who cited Hale as they constructed the early American legal order refused to give women the right to vote or to otherwise enjoy full citizenship. Relying on that history of injustice as a reason to deny modern women control over their own lives is a terrible argument but apparently the best Alito can do.
In analyzing the Carroll trial, the Times’ Jessica Bennett interviewed Professor Deborah Tuerkheimer of Northwestern University, to explain how the “cultural vestiges” of these misogynistic views still predominate in our legal system:
Deborah Tuerkheimer, a law professor at Northwestern and author of the book “Credible,” explained that while it is rare these days for state rape statutes — or jury instructions — to require victims to show physical resistance in the face of an attack, those mandates were common until the 1980s, so their cultural vestiges remain.
“And so, you have a very obvious effort to suggest that Carroll couldn’t be a ‘worthy’ victim if she didn’t scream, if she didn’t report immediately, if she didn’t call the police — even as all of those things are contradicted by everything we know about how victims behave after an assault,” Ms. Tuerkheimer told me.
Now that we are seeing the pernicious influence of the same antiquated, 17th century jurist played out in real time in a Manhattan courtroom, it’s hard not to see the symmetry between the attitudes espoused by Alito in Dobbs and the attitudes of the lawyer now tasked with defending Donald Trump against accusations of rape. In both circumstances a woman’s interests are subordinated to the biases of men. In both circumstances women are essentially attacked — or smeared — as immoral, untrustworthy, and thus incapable of being trusted. In both circumstances, they are to be discredited at all costs.
But most of all, they are being blamed — or are forced to suffer the consequences — for something, while men seek to avoid their own responsibility.
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