opinion | E. Jean Carroll and the Persistent Misperception that a Rape Victim Should Scream

She pushed him away.

She stomped on his foot.

She hit him with her purse.

She kneeled him.

She fought so hard that E. Jean Carroll, the woman who accused former President Trump of raping her in the mid-1990s, has chosen to call it a “fight” rather than a “rape” for nearly 30 years call – because she fought back.

What Ms. Carroll did not That day in the dressing room of Bergdorf Goodman’s lingerie department, where she says Trump pinned her against a wall, pulled down her pantyhose, and shoved his fingers and then his penis into her vagina, she screamed.

“I’m not a screamer,” she testified in civil court last week when asked by a lawyer for Mr. Trump why she didn’t scream. “I was too panicked to scream. I fought.”

Ms. Carroll was on the witness stand in a Manhattan federal courtroom, where a jury will determine whether Mr. Trump is liable for causing bodily harm to Ms. Carroll (using New York State’s definition of “battery”) — and defaming her , by calling her a liar when she talked about it. Mr Trump, who has denied Ms Carroll’s allegations and said he never met her, has so far refused to attend the hearing, although he chose to speak out on social media (at the judge’s admonition) including the absence of a scream.

“You can’t beat me up for not screaming,” Ms. Carroll told Mr. Trump’s attorney Joseph Tacopina when pressed to silence. One of the reasons women don’t reach out, she continued, “is because they always ask, ‘Why didn’t you scream?'”

Ms. Carroll, who had been unflappable up to this point, became emotional. “I’m telling you,” she said, raising her voice, “he raped me whether I screamed or not!”

The year is 2023, more than five years after #MeToo and nearly five decades after the term “acquaintance rape” was coined to describe how rape not only occurs among strangers in back alleys, but also among people who one knows. Today, our understanding of the concept has evolved so much — at least in some circles — that it was only moments before the details of Ms. Carroll’s cross-examination surfaced online and a hashtag emerged in her defense: #Ididntscream, featuring assault victims share their own stories of silence.

And yet in court, where Mr. Tacopina stretched his calves and clenched his ankles as he began to cross-examine Ms. Carroll as if preparing for a boxing match, none of that mattered. We’re still interrogating rape victims like we did in 1993.

Not that we should have particularly high expectations. This is an attorney representing a man who has been accused of sexual assault by multiple women and whose legal partner once compared a rape victim’s vagina to a Venus flytrap.

And still.

Among other things, Mr Tacopina asked Ms Carroll during her questioning, which is expected to continue in court on Monday:

Did she call the police? (NO.)

Who did she tell? (Her friend Lisa.)

Why not her family? (She would never tell her family, she said.)

Why not a closer friend than Lisa? (Lisa was Exactly who she needed to talk to right now, Ms. Carroll said.)

And then: Did she shower when she got home? Was she taking medication for her allegedly injured head? Has she been to the doctor? A psychiatrist? How about a psychologist? Did she photograph her alleged injuries?

And wait – why didn’t she call the police right away? And wasn’t that so… Mr. Tacopina paused to emphasize: Strange?

(A few minutes later, the assigned judge, Lewis A. Kaplan, warned Mr. Tacopina to keep it moving. “We’ve been up and down hill on whether she went to the police station,” he said. )

The case against Mr Trump, brought under a new New York law that allows victims of sexual assault to sue those they say assaulted them even if the statute of limitations has expired, is — to be clear to say – not criminal. Mr. Trump faces no jail time. Ms Carroll is seeking financial damages and is urging Trump to retract the statements she believes are defamatory. But, as she said in court, “It’s not about the money. It’s about getting my name back.”

And yet the trial is something of a litmus test for how much we’ve learned in the years since Harvey Weinstein was first accused of sexual abuse – which Ms Carroll says has prompted her to close herself after all this time report. This is one of more than a dozen sexual misconduct allegations against Mr Trump, but the first to be examined in a courtroom. Will it matter? Hashtags (and, um, columns) abound, but does a panel of real people—six men and three women, to be exact—get the context that makes these questions so illogical?

That’s not to say that those making allegations of rape shouldn’t answer questions. But we don’t ask victims of other violent crimes if they screamed – on the contrary, not Yelling is seen as a way to stop provoking. Then why are these tropes so ingrained when it comes to victims of sexual violence?

The question of whether or not to scream in the face of sexual assault can be traced back at least to the first rape trial in US history for which there is a published record: that of Harry Bedlow, a well-to-do man, who raped a 17-year-old seamstress in 1793. This crime took place at a brothel to which Mr. Bedlow forcibly abducted the woman and which happens to be a few blocks from the federal courthouse where Ms. Carroll is testifying.

And while it may seem like ancient history, this case actually helped lay the groundwork for today’s style of courthouse questioning.

In his book on the case, The Sewing Girl’s Tale, historian John Wood Sweet explains how Mr Bedlow’s defense relied on a behavioral precedent set in the 17th century by the lawyer Sir Matthew Hale. (If that name sounds familiar, that’s because Hale was quoted eight times in Judge Samuel Alito’s anti-abortion opinion in the Dobbs case.) Hale was concerned about malicious women making false accusations against innocent men , set up a series of “circumstance surveys” tests to ensure a victim was credible. Below: Was she of “good reputation” (ie: did she have a good reputation)? Did she scream for help (i.e. did she scream)? Did she have signs of physical violence on her body or clothing that could indicate the use of force by a perpetrator? Did she report the crime in time?

Almost every defense attorney back then routed questions through the Hale framework, writes Mr. Sweet. And yet, culturally, defenders still do.

Deborah Tuerkheimer, a Northwestern law professor and author of the book “Credible,” explained that it’s rare these days that state rape laws — or jury orders — require victims to offer physical resistance in the face of assault, those mandates have been in the past Common in the 1980s, so their cultural traces remain. Meanwhile, many states still require victims to prove themselves verbal Resistance (such as yelling or saying no), even as the opposite standard of “affirmative agreement” or having to say “yes,” has become commonplace on college campuses.

“And so you have a very blatant attempt to suggest that if she hadn’t screamed, if she hadn’t called the police immediately, if she hadn’t called the police, Carroll couldn’t have been a ‘worthy’ victim – neither does all of that contradict everything, what we know about how victims behave after a robbery,” Ms. Türkheimer told me.

These tactics endure because they draw on deep misunderstandings – and somehow the scream seems to be among the strongest.

Not screaming was the reason a sexual assault case was dropped in Italy in 2017. It was the background to a widespread criminal rape trial in 2018 involving two well-known rugby players in Belfast, Northern Ireland, who were acquitted. And while trauma and sexual assault experts, such as psychologist James Hopper, have repeatedly shown that not screaming or crying out — essentially freezing — is a common brain response to danger, the myth of screaming lingers.

During last week’s cross-examination, Mr Tacopina asked Ms Carroll if it could have been the pressure of Mr Trump’s body – which she described pinning her against the wall – that kept her from screaming.

“It could be,” Ms. Carroll said flatly, before adding, “I don’t need an excuse not to scream.”

Carroll v. Trump is expected to last all week.

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