On Monday, after four hours of deliberation, a Denver jury comprised of six women and two men decided that Taylor Swift was groped before a 2013 concert. They awarded the pop star $1—a symbolic amount that Swift had requested.
Swift’s comments on the stand last week drew wide praise from media outlets, with several publications rounding up her best comeback lines. Slate called her testimony “sharp, gutsy, and satisfying, ” with writer Christina Cauterucci applauding Swift for her “visible condemnation” of both the alleged sexual assault and the disturbing ways assault victims are treated in court.
There was something viscerally gratifying about a woman on the stand firing back with lines like, “I’m critical of your client sticking his hand under my skirt and grabbing my ass.” But unfortunately, not everyone is Taylor Swift, and sharp comebacks in court are not the sort of rhetorical luxury afforded to most victims on the stand, especially to victims of sexual assault. Swift’s gutsy testimony would have been downright reckless if this were a criminal sexual assault trial.
But it wasn’t. And that, attorney Terre Rushton told Splinter, makes all the difference. “As her lawyer, I wouldn’t be as concerned about her language and her vulnerability as I would have been if this had been a criminal trial,” Terre Rushton, a former director of the National Institute for Trial Advocacy, where she trained lawyers on how to try their cases, said.
“She didn’t need to appear overwhelmed by him,” Rushton added.
However true Rushton’s statement is, it’s tough to reconcile. Why should any victim feel the need to appear “overwhelmed” by their attacker? But understanding this need is key to understanding Swift’s advantages and the calculated risk she took during her trial and testimony.
Swift’s suit came in response to a lawsuit filed by the man she says groped her, KYGO radio host David Mueller. He claimed that not only had Swift lied about the sexual assault, but that it had cost him his job at the radio station. The disgraced DJ, who was 51 at the time of the alleged assault (Swift was 23), attempted to sue Swift for $3 million in damages. The pop star responded with a $1 countersuit for assault and battery charges, a minimal award that maximized her message: Men are not entitled to touch women’s bodies without their consent.
Because it was a countersuit, Swift’s legal team had to convince a jury that the assault happened as she said it did, but didn’t necessarily need to show how she had been traumatized by Mueller’s actions.
“I know that from listening to prosecutors that do sexual assault work that...you have to show the harm to the victim,” Rushton said. “The victim certainly can be strong, and she can be outraged by what happened to her, but you also have to let the jury know that she was harmed.”
It’s a tough and deeply uncomfortable reality of criminal sexual assault cases: victims need to be seen as victims, and that typically means focusing on the pain and trauma of what happened to them. It also means mitigating any appearance—be it style of dress, demeanor, or language—that could distract or offend a judge or jury.
But because this wasn’t a criminal case, Swift had more latitude to be firm on the stand.
That said, she wasn’t completely insulated from being subjected to the sort of grilling that has become standard for victims of sexual assault. Mueller’s attorney, Gabe McFarland, tried to chip away at her credibility: Was she sure it happened as she had remembered? Was she sure that Mueller had been the one that had grabbed her? Shouldn’t she blame her bodyguard for not protecting her?
Rather than meekly parry the comments, Swift delivered scathing rejoinders, repeatedly used the word “ass” to describe the assault and even referring to McFarland by his first name.
When McFarland claimed that a photo that seemed to show the ex-DJ with his hand on her rear showed nothing inappropriate, Swift countered: “Gabe, this is a photo of him with his hand up my skirt—with his hand on my ass. You can ask me a million questions—I’m never going to say anything different. I never have said anything different.”
This is where Swift’s strategy, as thrilling as it was to witness, would probably get anyone who isn’t one of the world’s most recognizable faces into deep trouble.
“I was a little surprised that she chose [the word ‘ass’],” Rushton added, “only because it could have offended someone.”
Olu Orange, an attorney who directs the Dornsife Trial Advocacy Program at the University of Southern California, had a stronger reaction to Swift’s testimony, deeming it “disrespectful” to the court and the process.
“Usually, you don’t use profanity in court unless you are relating words that someone else used out of court and they actually used profanity,” he told Splinter. “You always want your witness to take the high ground. Using that profane word, really it kind of—she loses credibility to some extent. And I don’t mean credibility as to whether what she says happened, happened. I mean credibility as to the goodness of her person.”
Orange, who trains lawyers on how to prepare their clients to give credible testimony, emphasized how unusual such an exchange was.
“I’m surprised that the judge allowed the use of the lawyer’s first name in any trial,” he said. “I’ve never heard of that. I’ve never experienced that.”
But he acknowledged that such sharp statements could have very well been the point of the trial. As Swift’s attorney, Doug Baldridge, told the court in his opening statements, she was not trying to bankrupt Mueller.
“She’s just trying to tell people out there that you can say no when someone puts their hand on you,” Baldridge said. “Grabbing a woman’s rear end is an assault, and it’s always wrong. Any woman—rich, poor, famous, or not—is entitled to have that not happen.”
But not just “any woman” can’t take on the burdens of going to trial—the financial cost, the attention, the time—and certainly not for a $1 payout. “Any woman” doesn’t just so happen to have a photo taken at the exact moment of her alleged assault (the incident took place during a press event). And if this had been a typical criminal or civil trial, “any woman” would have been putting her credibility on the line by delivering sharp, rehearsed retorts from the dais.
It all seems innocuous: So what if Swift said “ass” to describe where she was groped? So what if she called the opposing counsel “Gabe”? So what if she got a couple digs in while delivering her testimony?
The simple answer is that the stakes are usually too high for that. In a criminal trial, the accused faces prison time, the loss of their reputation, and, in many cases, a lifetime on a sex offender registry. In a civil trial, the alleged victim usually sues for emotional damages—a substantial fee that also requires the accuser to demonstrate to the court how the assault affected them.
A judge or jury’s willingness to decide on behalf of the victim hinges on the victim’s credibility—any perceived rudeness or impropriety, lawyers fear, could derail that credibility. As Rushton put it, the court has to see the accuser as a victim, and to sympathize with them. Offending just one juror because a client seems disrespectful can have severe consequences.
It’s easy to look at Swift’s many advantages—her fame, her money, and as Slate put it, the “jury-endearing privileges of white skin and a beautiful face”—and ascribe her ability to deliver such strong testimony to those advantages. Swift came to court with all the cards. But it’s impossible to parse the exact role those qualities played in her winning case.
And by demanding such a low amount in a countersuit, Swift effectively lowered the stakes for the jury. Swift’s testimony was a calculated risk afforded to her by her celebrity status in that she could file this kind of lawsuit to begin with.
Indeed, Rushton said what she finds unique is that Swift brought the matter to trial in the first place.
“The attention it cost her, the money it cost her. She obviously felt very, very strongly about this,” Rushton said. “Many people in this position would say, ‘I’m gonna blow this up, this isn’t worth it.’”
“People not in her position would not be able to carry it forward,” she added, acknowledging the singularity of Swift’s case. “But the fact that she did is amazing.”
Victims of sexual assault, when taking the stand, are often forced to describe profane acts in polite language, to be calm in the face of lawyers who question their recollections, what they wore, how many drinks they had, and why they hadn’t done more to stop their assault. So, yes, it’s inspiring that Swift could call a profane act by its name, that a judge would permit her to do so, and that a jury would rule in her favor. The pop star made the statement she was looking to make on behalf of victims who will never get their day in court, and it was powerful.
But it was a moment of justice that only Taylor Swift could afford.