Opinion | E. Jean Carroll and the Persistent Misperception That a Rape Victim Should Scream

She pushed him off her.

She stomped on his foot.

She hit him with her handbag.

She kneed him.

She fought so hard that for nearly 30 years, E. Jean Carroll, the woman who has accused former President Donald Trump of raping her in the mid-1990s, has preferred calling it a “fight” instead of a “rape” — because she fought back.

What Ms. Carroll did not do that day in the lingerie department dressing room of Bergdorf Goodman, where she says Trump pinned her against a wall, pulled down her tights and shoved his fingers and then his penis into her vagina, is scream.

“I’m not a screamer,” she testified in civil court last week, when asked by an attorney for Mr. Trump why she hadn’t cried out. “I was too much in a panic to scream. I was fighting.”

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

“You can’t beat up on me for not screaming,” Ms. Carroll told Mr. Trump’s lawyer, Joseph Tacopina, when pressed on her silence. One of the reasons women don’t come forward, she continued, “is because they are always asked, ‘Why didn’t you scream?’”

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

It is 2023, more than five years after #MeToo, and nearly five decades after “acquaintance rape” was coined to describe how rape doesn’t only happen with strangers in dark alleys, but with people you know. These days, our understanding of the concept has evolved enough — at least in some circles — that it took only moments between the time details of Ms. Carroll’s cross-examination began to surface online and the appearance of a hashtag in defense of her: #Ididntscream, with assault victims sharing their own stories of silence.

And yet in the court of law, where Mr. Tacopina stretched out his calves and pressed his knuckles together beginning his cross-examination of Ms. Carroll, as if preparing for a boxing match, none of that mattered. We are still cross-examining rape victims like it is 1993.

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

And still.

Among the other things Mr. Tacopina asked of Ms. Carroll during her questioning, which is expected to continue in court 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 the person she needed to speak with in the moment, Ms. Carroll said.)

And then: Did she shower when she got home? Did she take medication for her supposedly bruised head? Did she go to the doctor? A psychiatrist? How about a psychologist? Did she photograph her supposed injuries?

And, wait — why again didn’t she call the police? And wasn’t that kind of … Mr. Tacopina paused for emphasis: Odd?

(A few minutes later, the judge presiding over the case, Lewis A. Kaplan, would warn Mr. Tacopina to keep it moving. “We have been up and down the mountain on the question of whether she went to the police,” he said.)

The case against Mr. Trump, brought under a new New York law that allows sexual assault victims to sue those they say attacked them even if the statute of limitations has expired, is — to be clear — not criminal. Mr. Trump does not face jail. Ms. Carroll is seeking monetary damages and for Trump to retract the statements she believes were defamatory. But, as she told the court: “It’s not about the money. It’s about getting my name back.”

And still, the trial is something of a litmus test for how much we have learned in the years since Harvey Weinstein was first accused of sexual abuse — which Ms. Carroll says is what prompted her to come forward after all that time. This is one of more than a dozen sexual misconduct accusations against Mr. Trump, but the first one to be considered in a courtroom. Will it matter? Hashtags (and, ahem, columns) are a dime a dozen, but does a jury of real people — six men and three women, to be exact — understand the context of what makes these questions so illogical?

This isn’t to say that those making rape allegations shouldn’t answer questions. But we don’t ask victims of other violent crimes if they screamed out — to the contrary, not screaming is considered a way to not further provoke. Why then, when it comes to victims of sexual violence, are those tropes so baked in?

The question of screaming — or not — in the face of a sexual assault is one that can be traced at least as far back as the first rape trial in U.S. history for which there is a published record: That of Harry Bedlow, a well-to-do man who, in 1793, raped a 17-year-old seamstress. That crime took place in a brothel, where Mr. Bedlow carried the woman by force, and which happens to be a few blocks away from the federal courthouse where Ms. Carroll is testifying.

And while it may seem like ancient history, that case actually helped establish the basis for today’s line of courthouse questioning.

In his book on the case, “The Sewing Girl’s Tale,” the historian John Wood Sweet explains how the defense of Mr. Bedlow relied on a behavioral precedent set by 17th-century lawyer Sir Matthew Hale. (If that name sounds familiar, it’s because Hale was cited eight times in Justice Samuel Alito’s anti-abortion opinion in the Dobbs case.) Hale, in his anxiety about malicious women bringing false accusations against innocent men, had established a set of “circumstantial” tests to make sure a victim was credible. Among them: Was she of “good fame” (in other words, did she have a good reputation)? Did she cry out for help (i.e., did she scream)? Did she bear signs of physical violence on her body or clothing, which might be consistent with a perpetrator’s use of force? Did she report the crime in a timely manner?

Nearly every defense attorney funneled questions through the Hale framework back then, Mr. Sweet writes. And yet, culturally, anyway, defense attorneys still do.

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. Meanwhile, many states still require that victims prove verbal resistance (such as, say, a scream, or saying no), even as the opposite standard, that of “affirmative consent,” or having to say “yes,” has become commonplace on college campuses.

“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.

These tactics persist because they tap into deep misconceptions — and somehow, the scream seems among the most potent.

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

During the cross-examination last week, Mr. Tacopina asked Ms. Carroll whether it might have been the pressure from Mr. Trump’s body — which, she described, was pinning her against the wall — that prevented her from screaming.

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

Carroll v. Trump is expected to continue all week.

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