Donald Trump’s comments and behavior, captured in a 2005 hot-mic recording released by the Washington Post Friday, are horrifying – but they cannot possibly be surprising to anyone who’s been paying attention to this election. On the tape, Trump bragged that he kisses women without permission and he can “grab them by the pussy” because he’s a star. It’s been widely noted that these statements fit a decades-long pattern of Trump making hateful and demeaning comments about women. But they are also entirely consistent with his lesser-discussed history of alleged and admitted physical assaults – particularly his alleged rape of his first wife.
Some legal basics before we proceed: It is generally illegal to touch someone who doesn’t want to be touched. Battery is a tort – a violation of civil law for which the victim can sue – that entails a “harmful or offensive contact with the person of another.” It doesn’t require a physical injury, just an offensive touching. As one court explained, “the slightest unlawful touching of the person of another is sufficient, for the law cannot draw the line between different degrees of violence and therefore totally prohibits the first and lowest stage, since every individual’s person is sacred and no other has the right to touch it.” Criminal laws also prohibit a range of unconsented touchings, which have different names such as “battery,” “assault” and “rape.”
As Harry Hurt III reported in his 1993 book, Lost Tycoon: The Many Lives of Donald J. Trump, Ivana Trump, the real estate tycoon’s first wife, testified in a sworn deposition during their divorce proceedings that Trump was angry with her for recommending a plastic surgeon he believed had “ruined” him with a painful scalp reduction surgery to remove a bald spot. Ivana testified that Trump held back her arms and pulled out fistfuls of her hair from her scalp before forcibly penetrating her. Trump denies that the attack or the surgery ever happened.
Trump was never tried or sued, so we’ll never know if he is guilty of raping his wife. But the way Trump and his legal team reacted to the allegations tells us they do not believe the law applies to him.
Prior to Hurt’s book being published, Trump and his lawyers got a statement from Ivana saying she felt “violated” by the events of that night but that she didn’t mean that she’d been raped “in a literal or criminal sense” – even though what she described in her deposition amounted to rape as a legal matter. She’s since said the story of Trump raping her is “without merit.” (The Trump campaign has not responded to Rolling Stone’s request for comment.)
When reporters at the Daily Beast researched the allegations over the summer, Trump lawyer Michael Cohen told one of them, “[W]hat I’m going to do to you is going to be fucking disgusting. … You write a story that has Mr. Trump’s name in it, with the word ‘rape,’ and I’m going to mess your life up … you’re going to have judgments against you, so much money, you’ll never know how to get out from underneath it.”
Cohen also tried to redefine the crime of rape to suit Trump’s purposes, claiming, “You cannot rape your spouse. There’s very clear case law.”
That is absolutely incorrect under modern law, but it was the case in a previous era. Under the doctrine of “coverture,” a woman’s legal identity was subsumed or “covered” by that of her husband. She couldn’t own property or enter into contracts because she was no longer a separate legal person. And, so, a husband couldn’t rape his wife, because you can’t rape yourself or your property. The doctrine of coverture was abandoned long ago, and the marital exception in New York’s rape law was struck down in 1984.
Trump’s reaction to the rape allegation is the worst, but by no means only, way he’s demonstrated that the fundamental principle “every individual’s person is sacred and no other has the right to touch it” doesn’t apply to him. His own book describes him physically assaulting a teacher in grade school, characterizing it as standing up for himself, and more recently he’s praised a protester getting punched at one of his rallies, and in fact regularly endorses violence at his campaign events. He blamed the female reporter who his campaign manager was charged with battering, and, as we now know, he described grabbing women by the genitalia and kissing them without permission. And that’s just what he’s done or admitted publicly – there are allegations of worse.
We didn’t need tape of Trump bragging about sexually assaulting women to know that he is an unrepentant bully and batterer. Paul Ryan and other Republicans can keep calling for their fainting salts, but how could they have possibly not known that this is who Donald Trump is? Trump barely even apologized for the recording, dismissing it and using it as an opportunity to shame Hillary Clinton for her husband’s infidelities. He’s probably more embarrassed that the tape reveals he “did try to fuck” the woman he was talking about but “couldn’t get there” than he is of the grotesque language he used to gleefully describe battering women.
Trump has said he could stand in the middle of Fifth Avenue and shoot a person without losing votes. How many more Republican endorsements will he lose by admitting to and endorsing assault?