Accusers Destroy Trump's Two Sexual Assault Legal Defenses

WASHINGTON - Oct. 17, 2016 - PRLog -- On the original "Access Hollywood" videotapes, Donald Trump appears to be admitting to what would constitute in law the crime of sexual assault.  But, by saying that "when you're a star they let you do it," he seemingly offers the legal defense of consent.

        There is no crime, or even a civil wrong, in even the most intimate of sexual touching if a woman permits it to occur - even if the consent is reluctantly given in the hopes of advancing her career or of simply avoiding embarrassment - says public interest law professor John Banzhaf.

        But the new accusations by several women, if true, clearly negate any possible legal defense that the accusers let Trump touch them in a sexual manner because he's a star, or for any other reason, says Banzhaf, who had previously been skeptical of some in the media who seemingly assumed that Trump had admitted on the videotapes to serious crimes, despite his suggestion that the women had let him do it.

        While most voters will probably base their decisions on what sexual improprieties they believe in fact occurred, and not upon any legalistic analysis based upon the very specific requirements of criminal law, it might be relevant for voters to understand where the allegations of misconduct, if true, crossed over the line from being inappropriate, highly objectionable, or even sexual harassment to constituting a crime which could result in imprisonment and a lifetime listing on the sexual offender registry, argues Banzhaf.

        Indeed, there are two possible legal defenses to the crime of sexual assault which some jurors might find relevant in evaluating the allegations, especially in criminal proceedings in which every element of the crime must be proven beyond a reasonable doubt, suggests Banzhaf.

        The first possible legal defense is that some touchings do not constitute the crime of assault, even in the absence of any consent, if they can be characterized as generally socially acceptable.

        Common examples include tapping someone of the shoulder to attracted attention, brushing by another person in a crowded subway train, grabbing someone who suddenly begins to fall, etc.

        More to the point, when people meet, it is often not uncommon - and therefore at least arguably might be socially acceptable - for one person to pat another on the arm or shoulder, hug, or even kiss, especially briefly on the cheek.

        Several woman have now come forward and claimed that Trump inappropriately kissed them on the lips when they met.

        While this apparently goes beyond mere polite pecks on the cheek, a Trump defense lawyer might nevertheless try to argue that a prosecutor hasn't proven beyond a reasonable doubt that Trump would or should have known that mouth-to-mouth kissing can't ever be regarded as socially acceptable.

        There might even be a few rate situations, says Banzhaf, where patting a women on the rear end might not clearly exceed the bounds of what is arguably socially acceptable, at least under some circumstances.

        For example, anyone who watched the TV program "Mad Men" saw clear evidence that patting a woman on the behind was at one point in time all too common, and therefore might arguable constitute socially acceptable behavior - but that clearly would not apply during this century.

        However, even today, athletes, sometimes even of opposite genders, might pat another player on the rear end to celebrate success and comradery - e.g., a female player who hit a home run might be patted on the back or backside by teammates as she rounds third base towards home.

        Although the groping on the behind alleged by at least one woman - "Donald just grabbed my #ss'' - seemingly goes far beyond that kind of sometimes arguably socially acceptable conduct, a very desperate defense lawyer might likewise try to argue to the contrary.

        But clearly no such argument can be made regarding an alleged touching of the genitals.

        Trump's own words - "grab them by the p#ssy, you can do anything" - can't possibly or even arguably be characterized as socially accepted touchings, absent some form of consent.

        At least two women have alleged that Trump touched them in this area of their bodies.

        With regard to a touching of the genitals, the only possible defense would be one of consent.

        But according to the allegations of one victim, Trump reached under her skirt and touched her vagina when she was seated next to him but before there was any conversation, introductions, or other contact or interaction.

        Under such circumstances, there is no plausible argument that she had consented.

        In another situation where a woman has alleged that Trump reached under her skirt and touched her genital, they were strangers seated next to one another on an airplane.  When this alleged touching began, the woman immediately left her seat to sit somewhere else on the airplane.

        Under these circumstances, any claim that the woman had consented to the touching - even impliedly by flirting or other similar behavior - seems so highly implausible that even a desperate attorney would probably not try to argue it.

        Finally, although in a criminal proceeding Trump would enjoy the presumption of innocence - "innocent until proven guilty in a court of law" - no such presumption need apply in the court of public opinion.   Moreover, he cannot claim to be innocent unless proven guilty beyond all reasonable doubt.

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