Say a man, uninvited, reaches out and grabs you — as presidential candidate Donald J. Trump puts it — by your pussy.
It’s a graphic scenario that’s entered conversations across the country and electrified social media thanks to Trump’s boastful words about what he’s entitled to do “when you’re a star,” caught on an “Access Hollywood” tape in 2005 and released Friday.
A growing list of Republican leaders ended their support of their party’s nominee in response, and women in much larger numbers began sharing their own stories about sexual assault on Twitter, on Facebook and face-to-face.
“This really could be a watershed moment for the issue of sexual assault, abuse and harassment in our country,” said Sonia Ossorio, president of the National Organization for Women New York City, which advocates for victims of sexual assault and women’s rights.
“We’ve all had to come face to face with the many victims of Bill Cosby and the failure by the criminal justice system to recognize the brutality of the sexual assault in Stanford in which Brock Turner was given six months,” she said. “Now, Trump became the third person in a very high-profile way to put a spotlight on how routine sexual assault is, how many women and men are affected, and how the criminal justice system and our culture needs great repair.”
By Sunday night’s debate, Trump apologized for what he said (a first) but then insisted that his words amounted to nothing more than “locker room talk.” This was after CNN’s Anderson Cooper asked him three times about what he’d said and pointed out that what he described constituted sexual assault, plain and simple.
Though Trump denies any wrongdoing, there have been contradictory claims by women. A former Miss Utah USA, Temple Taggart, spoke up about being kissed on the mouth by Trump. CNN’s Erin Burnett said a friend of hers shared a similar story.
Trump was also sued for sexual harassment by Jill Harth, who reported being groped, kissed and pushed up against a wall. Even his first wife, Ivana, described being violently raped by Trump in a 1990s deposition — though she later retracted her use of that word.
Whether Trump did what he claimed to do or not, he has reignited a discussion about sexual assault and how victims respond to the type of behavior he boasted about on the tape.
If a man — or woman — engages in this sort of behavior, what are the legal ramifications? And what are the victim’s rights and options for recourse?
That depends, experts say.
Is it sexual assault?
If a man — with or without a Tic Tac in his mouth — swoops in for an unwanted kiss or grope, context may be everything. On a date or in the workplace, as a minor or an adult, the where, what and who all matter in terms of how an incident is handled.
The US Department of Health and Human Services defines sexual assault as “any type of forced or coerced sexual contact or behavior that happens without consent,” and it’s very common. About one in five women in the United States has been raped, and almost half have experienced another type of sexual assault, according to the Office on Women’s Health.
The laws can vary from state to state, but overall, any “unpermitted touching can give rise to criminal charges and tort claims,” said Julie Goldscheid, a law professor at the CUNY School of Law who has long been steeped in matters of gender equality and gender-based violence. Before joining the law school faculty, Goldscheid worked to end violence against women as a senior staff attorney and acting legal director for Legal Momentum, formerly the NOW Legal Defense and Education Fund.
She’s not a criminal expert. Depending on what is groped, the level of violence attached to the groping and the local criminal laws on the books, assault and battery charges may be plausible, she explained.
“A lot of the laws didn’t change until the ’70s and the ’80s and the ’90s,” Ossorio said. “It wasn’t that long ago when there was no such thing as raping your wife. It wasn’t that long ago when, if a woman reported a crime, she might find that the first question the defense attorney asked her on the witness stand was ‘Are you a virgin?’ “
Michelle Madden Dempsey of the Villanova University School of Law appreciates that Trump’s words are being described as sexual assault, but she says the nuances of criminal law and a flawed penal code make it difficult to prove that such actions are sexual assault.
For one, there are at least 52 legal jurisdictions to consider — all 50 states, the federal system, military law — and what constitutes sexual battery or assault varies from jurisdiction to jurisdiction.
Furthermore, in criminal law, a person is guilty only if they are culpable in both thought and action. There are two forms of guilt to consider: a guilty act, or actus reus, and a guilty mind, mens rea.
“Grabbing someone’s vaginal area,” she said, is certainly a guilty act. “But if I was prosecuting the case against Mr. Trump, I would worry about mens rea.”
A guilty mind requires at least recklessness, proof of a conscious disregard of criminal conduct. If someone believes that they are doing nothing wrong, that they are too famous to not be wanted and can’t possibly be harming someone, criminal law may not work in many jurisdictions. In some, the standard of proof is negligence — the person should have been aware — but, again, the law varies.
“It’s hard to say, given that the laws are different in every state, but if Trump actually grabbed a woman by her private parts without her consent, that would generally qualify as sexual assault. If a woman reported him to the police and they gathered sufficient evidence, a prosecutor in many states could choose to charge him with a crime,” said Jill Filipovic, a Nairobi-based writer, lawyer and author of the forthcoming book “The H-Spot: The Feminist Pursuit of Happiness.”
You can certainly report it to police, Dempsey said, but she’s not convinced police would do much of anything or treat it as a serious crime — especially if there’s no physical harm or lasting emotional trauma. “They won’t even prosecute or investigate rapes,” she said.
Therefore, Ossorio said, “The issue is less the laws that exist and more the lack of enforcement by police and prosecutors.”
As it turns out, the majority of sexual assaults against women and girls in the United States go unreported. Between 1992 and 2000, only 26% of sexual assaults were reported, according to the Bureau of Justice Statistics.
In the work setting, though, proving punitive damages in a civil harassment case is a lower hurdle to clear.
If the actions mentioned by Trump were conducted by a supervisor in a workplace, that would constitute a hostile environment and be recognized as a form of sexual discrimination.
What Trump talked about “are the kinds of things that have been the basis of sexual harassment cases for decades,” Goldscheid said, pointing to a unanimous US Supreme Court opinion handed down in 1986.
Seizing the moment
Goldscheid said the more important conversation at this juncture may be about what society views as acceptable.
“Feminists have been working for years to change culture,” she said, and this moment may “spur a continuation of conversations that have been going on for decades” about women’s roles and abuses of power by men.
Ossorio said the National Organization for Women New York City is making sure that the conversation continues by planning a protest in response to Trump’s comments at 12:30 p.m. Wednesday in Columbus Circle in Manhattan.
“I’m not sure the tape or Trump’s words have shaped the conversation on sexual assault so much as feminist progress on sexual assault has shaped the conversation on Trump’s tape,” Filipovic said.
“That the media is even calling this sexual assault is a testament to how far the conversation has progressed: Women’s rights activists have demanded that reporters not use euphemisms like ‘groping’ or ‘sex’ for sexual assault and rape, and that seems to have taken hold,” she said. “Feminists have also long pushed the power of women speaking out and telling their stories, saying that women’s experiences, and their voices, matter.”