Late Monday night, the Daily Beast trawled the contents of a 1993 book, "Lost Tycoon: The Many Lives of Donald J. Trump." In the book, Harry Hurt III writes about an alleged argument and subsequent sexual encounter between Trump and his now ex-wife, Ivana Trump.
Click on the link above if you want the graphic details. Suffice it to say that it was an allegation of violent sexual assault. It was something Hurt reports that Ivana Trump has called "rape," which Hurt attributes to her close confidantes. Ivana Trump later softened her comments, saying that she didn't want her characterization of the event to be "interpreted in a literal or criminal sense," but that she still felt "violated." On Tuesday, she called the Daily Beast story "without merit" and said she has a great relationship with her ex-husband.
Trump was never charged with a crime, and he has also denied the allegation. Late Monday night, Trump spokeswoman Hope Hicks issued this response to The Fix:
This is an event that has been widely reported on in the past, it is old news and it never happened. It is a standard lawyer technique, which was used to exploit more money from Mr. Trump especially since he had an ironclad prenuptial agreement. It is just a way for the badly failing and money losing Daily Beast, which has been reporting inaccurately on Mr. Trump for years, to get some publicity for itself.
It's an old story, brought up in the heat of a campaign. That's to be expected. But it was the Trump camp's hackneyed initial response to the Daily Beast story that gave the decades-old allegations currency. In addition to threatening to ruin the Daily Beast reporter's life (in no uncertain terms), Trump lawyer Michael J. Cohen said this:
“You’re talking about the front-runner for the GOP, presidential candidate, as well as private individual who never raped anybody. And, of course, understand that by the very definition, you can't rape your spouse.”
“It is true,” Cohen added. “You cannot rape your spouse. And there’s very clear case law.”
That's a very poor political defense — and Cohen has since apologized — but it might be an even worse legal one.
The precise details of what constitutes rape and what amounts to consent vary from state to state, marital rape laws — policies making the sexual violation of one's spouse illegal — have existed in all 50 states since 1993, according to the National Online Resource Center for Violence Against Women. New York's was on the books as of 1984 — five years before the alleged encounter described by Hurt's book.
However, as recently as May, lawmakers in Ohio were working to make it easier for prosecutors to bring and win marital rape cases. Ohio law outlaws marital rape, but includes language that identifies something called "marital privilege," which can make these cases hard to win. Ohio is not alone.
A number of states maintain laws that require spouses to report sexual violence more rapidly than other victims to pursue charges. They require clear evidence of violence or force, and make sexual violence between spouses a crime only if they no longer live together. There are, in short, a pretty confusing and inconsistent tangle of laws.
That's precisely what Jill Elaine Hasday found in her 2000 University of Chicago Law School analysis of the history and current landscape of marital rape law. Under British common law, part of the basis on which the American legal system is built, sexual consent was considered part of the marriage contract.
So, that's the law. What about the politics?
Well, that's where things are almost certain to get really ugly starting Tuesday morning. Trump first raised the issue of rape by claiming in his presidential announcement speech last month that rapists and murderers are streaming across the U.S.-Mexico border. So any argument that Ivana Trump's deposition isn't germane to the 2016 race likely won't hold. Neither, almost certainly, will the idea that Trump is a private individual, rather than a public figure seeking to become president of the United States.
And Trump has weighed in on rape before. In the late 1980s, he took out full-page ads in New York City newspapers calling for a return to the death penalty in response to a rape in Central Park. That ad also called for limited concern for the civil liberties of the accused. The black and Latino teens New York prosecutors charged in the case later saw their convictions vacated — after serving anywhere from six to 13 years in prison.
Then there's the question of the nation's growing conversation about sexual violence. Anti-rape activists have been vocal this year in arguing for a redefinition of consent from the "no means no" standard to affirmative consent. Practically speaking, that amounts to obtaining a yes, every step of the way, in every sexual encounter.
And in California and New York, that's already the law governing sexual encounters on college and university campuses.
That's not a political climate in which the claim that one cannot rape one's spouse is likely to be quickly forgotten.
In a statement sent to The Fix, Cohen said:
As an attorney, husband and father there are many injustices that offend me but nothing more than charges of rape or racism. They hit me at my core. Rarely am I surprised by the press, but the gall of this particular reporter to make such a reprehensible and false allegation against Mr. Trump truly stunned me. In my moment of shock and anger, I made an inarticulate comment — which I do not believe — and which I apologize for entirely.