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Here’s how the law decides when “locker room talk” describes sexual assault

Trump with Anderson Cooper, who asked him during the second presidential debate whether he understood that the conduct he described in the leaked tapes amounted to sexual assault.
Spencer Platt/Getty Images

Almost everyone — even those who agree with Donald Trump that his recently leaked comments about grabbing women’s genitals and getting away with it because of his fame were “locker room talk” — agrees that the remarks were vile and apology-worthy.

But a debate has surfaced about the way the comments are being characterized beyond that. It centers on whether the behavior the Republican presidential nominee bragged about, if it did actually happen, would constitute sexual assault.

As Vox’s Emily Crocket has written, many Trump supporters and surrogates bristle at that “sexual assault” label. Sen Jeff Sessions (R-AL), for example, told the Weekly Standard he wouldn’t “characterize” the behavior described in the tapes as such:

SESSIONS: This was very improper language, and he's acknowledged that.

TWS: But beyond the language, would you characterize the behavior described in that [video] as sexual assault if that behavior actually took place?

SESSIONS: I don't characterize that as sexual assault. I think that's a stretch. I don't know what he meant—

TWS: So if you grab a woman by the genitals, that's not sexual assault?

SESSIONS: I don't know. It's not clear that he — how that would occur.

Sean Spicer, chief strategist for the Republican National Committee, answered the Weekly Standard’s question this way: “I don’t know. I’m not a lawyer.”

He’s right. If we’re debating whether what Trump claims to have done fits the legal definition of sexual assault, that’s not really a matter of personal opinion. It’s a question of law.

A lawyer I spoke to said the answer is fairly clear. “The actions described by Mr. Trump, if true, constitute sexual assault in most jurisdictions in the United States,” Charles Rose, a law professor and the director of the Center for Excellence in Advocacy at Stetson University College of Law, said.

For example, here’s a summary of the relevant statutes in New York, where Trump has spent much of his time, via FindLaw.com:

California, where Trump made the statements, has a more restrictive statute. There, a court has to find an additional element — restraint — to determine that sexual assault has occurred.

Here’s some of that language:

I asked Rose if the requirement of restraint would mean that the conduct Trump described would be outside the definition of sexual assault in California, since he didn’t mention anything about holding the women down. Not necessarily, said Rose.

“You would have to look at the circumstances around the touching, because restraint can come from both actual force and constructive force,” he said. “The idea behind constructive force is that differences in status or the power dynamics in a situation can create a dynamic where the victim doesn’t feel they have the right to decline. Depending on the jurisdiction, the power dynamic can be sufficient to create that situation.”

He said there’s no ruling out that a woman could make the case that she felt restrained in a psychological sense by someone who kissed or grabbed her.

To be clear, Rose means the types of actions Trump described in his recorded conversation could meet the basic requirements of a sexual assault case — not that Trump’s comments alone are enough to convict him of sexual assault.

If someone were to press charges alleging the type of conduct Trump described in the video, “the question becomes whether there’s corroboration and on the statute of limitations,” he said. Even if those hurdles were cleared, a legal outcome would likely be determined by a jury’s assessment of the facts of any particular case.

And that’s where attitudes much like Sessions’s (that “sexual assault” is too harsh of a label, regardless of what the law says) come into play.

“When prosecuting these kinds of cases, you often need multiple cases to get this to stick in the mind of the jury. They tend to discount this stuff particularly when it’s just groping. That may not be legally accurate, but from a societal perspective they may not feel comfortable finding someone guilty,” Rose said.

“I think that in these cases they often come down to the credibility of the individuals involved,” he added. “And if there’s a person who has a credibility deficit in the US, it’s probably Mr. Trump.”

All that said, as Emily Crockett has written, state statutes with respect to sex crimes vary greatly. While the statutes absolutely determine criminal responsibility, they shouldn’t restrain the conversation about the effect of sexual misconduct on its victims. A woman’s experience with being grabbed or touched against her will doesn’t change depending on how her jurisdiction would or wouldn’t label the incident.

There are many behaviors that would be labeled immoral and harmful — in a way that can’t be dismissed as “locker room talk” — despite falling short of running up against the law. The kind of behavior Trump described, if it happened, appears to do both.