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Trump targets NY look-back window used for civil rape claim defense

The state's law is modeled after a 2020 version that was specific to assaults involving minors. It was upheld as constitutional.

MANHATTAN (CN) — Fighting the lawsuit from a woman who says he raped her in the '90s, former President Donald Trump asked a federal judge to strike down the landmark New York law that opened the door for him to face civil liability.

Intended to give survivors of sexual abuse the opportunity to go after assailants without regard to the statute of limitations, the law known as the New York Adult Survivors Act went into effect on Thanksgiving and will stay open for the next year — creating what is known as a “look-back” window. The model is similar to New York’s Child Victims Act, which took effect for one year in 2020 and resulted in some 9,200 lawsuits.  

Trump, who faces a lawsuit under the 2022 version from the writer E. Jean Carroll. Though the 2020 law intended for minor victims survived its own legal challenges, Trump wants courts to find that the latest incarnation violates due process protections under the New York Constitution. 

Represented by attorney Alina Habba, he says the law “inherently deprives countless individuals of their constitutional right to due process by forcing them to defend against these once-stale claims.”

"Unlike its predecessor, the Child Victims Act — a narrowly-tailored remedy which aims to protect an especially vulnerable segment of the population — the Adult Survivors Act does not seek to rectify any unique or distinct injustice,” Habba wrote in a 27-page motion to dismiss filed late Wednesday night. “Instead, it arbitrarily revives long-expired claims without any viable justification under the law."

Trump’s attorney made reference to the argument at a scheduling hearing earlier in the day. In response to its mention, U.S. District Judge Lewis A. Kaplan replied: “I wouldn’t count on that.” 

Attorneys for Carroll are banking on the judge's remark as a death knell for Trump’s motion. The 78-year-old Carroll accuses Trump, 76, of raping her in a Bergdorf Goodman dressing room in the 1990s.

"Based on the discussion at yesterday morning’s court conference, we expect that Judge Kaplan will swiftly reject Donald Trump’s latest attempt to delay Ms. Carroll’s day in court,” attorney Robbie Kaplan, of the firm Kaplan Hecker & Fink, said in an email to Courthouse News. 

Cassandra Burke Robertson, a law professor at Case Western Reserve University, also called it unlikely that will prevail on the motion. 

“The courts have already very similar arguments with regard to the Child Victims Act, and didn’t find that this was a violation of due process,” Robertson said in an interview. “The ASA is just similar enough that I don’t see the court striking it down.” 

The prior act was found to be a “reasonable response to remedy an injustice,” therefore not a due process violation. 

It struck Robertson as a missed opportunity that Trump brought his challenge only under state law, when it may hold more water at the federal level.

“I think it was a problematic litigation decision for them to not try to bring the U.S. constitutional claims," Robertson said, "even though courts haven’t been super receptive to it in the past."

This 1987 photograph of E. Jean Carroll and Donald Trump appears in Carroll's civil defamation suit against Trump to rebuff his claims that he could not have raped her because he never met her. (Image via Courthouse News)

New York state or federal courts may disagree, but the issue to Robertson is worth preserving to bring to a higher court. 

“There’s a reasonable chance that it actually does violate the due process clause of the United States Constitution,” Robertson told Courthouse News. “The purpose of a statute of limitations is to bring some finality; parties are expected to rely on it.” 

Carroll’s claims against Trump would not be possible without the new look-back law. The once popular advice columnist says she met Trump because he recognized her as a fellow public figure while shopping at the iconic Manhattan department store. He purportedly asked for her input on a gift he was buying, and the two moved toward the dressing room after some “playful banter” that quickly turned sinister when Trump allegedly forced himself upon her. 

Carroll has said publicly, and reiterated in a recent deposition, that she has not been able to sustain a romantic relationship, nor has she had sex with anyone, since the assault.

In the aftermath of Carroll’s public allegations — detailed in her 2019 book “What Do We Need Men For?” and published an excerpt in New York Magazine —Trump claimed that he had never even met Carroll, despite a photograph showing the two of them at a social event.

“I’ll say it with great respect: Number one, she’s not my type,” Trump said on June 24, 2019, half way into his single-term presidency. “Number two, it never happened. It never happened.”  

Trump’s response to the account was the basis for an ongoing defamation lawsuit Carroll brought against Trump in November 2019, which is currently held up in appeals. 

“With full awareness of his lies and indifference to truth, Trump used the loudest megaphone on the planet to launch a personal attack on Carroll,” Carroll’s attorneys argued in one brief to the Second Circuit. “He implied she was too ugly for him to sexually assault; he charged that she had falsely accused other men of rape; and he concocted a malicious narrative under which Carroll lied to make money or increase book sales or advance some vague political conspiracy.” 

Trial in Carroll’s defamation lawsuit is set for April 2023. Judge Kaplan in New York has yet to decide whether to combine the case with her latest lawsuit. 

Trump’s attorney Habba did not return a request for comment for this story.

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