Granted, it was in response to a ridiculously baseless argument. Granted, it was in a civil case. Granted, the civil case was against Donald Trump. Granted, the outcome, that the $5 million dollar verdict in favor of E. Jean Carroll was hardly excessive. Still, Judge Kaplan’s ruling is troubling.

So why does this matter? It matters because Mr. Trump now contends that the jury’s $2 million compensatory damages award for Ms. Carroll’s sexual assault claim was excessive because the jury concluded that he had not “raped” Ms. Carroll. Its verdict, he says, could have been based upon no more than “groping of [Ms. Carroll’s] breasts through clothing or similar conduct, which is a far cry from rape.” And while Mr. Trump is right that a $2 million award for such groping alone could well be regarded as excessive, that undermines rather than supports his argument. His argument is entirely unpersuasive.

In a vacuum, it might be arguable that the jury could have found sexual assault based on  Trump groping Carroll’s breasts, but that wasn’t the evidence and the trial judge, having heard the evidence, is disinclined to indulge such fantasy. The problem is that jury did not find that Trump “raped” Carroll, even though the evidence was that he digitally penetrated her vagina.

The jury’s unanimous verdict in Carroll II was almost entirely in favor of Ms. Carroll. The only point on which Ms. Carroll did not prevail was whether she had proved that Mr. Trump had “raped” her within the narrow, technical meaning of a particular section of the New York Penal Law – a section that provides that the label “rape” as used in criminal prosecutions in New York applies only to vaginal penetration by a penis. Forcible, unconsented-to penetration of the vagina or of other bodily orifices by fingers, other body parts, or other articles or materials is not called “rape” under the New York Penal Law. It instead is labeled “sexual abuse.”

Under New York Penal Law Article 130, the crime of rape requires “sexual intercourse,” which is poorly defined in Section 130.00(1).

“Sexual intercourse” has its ordinary meaning and occurs upon any penetration, however slight.

What this has been interpreted to mean is penis in vagina and only penis in vagina. There are other laws relating to vaginal penetration by something other than a penis, but it’s not what the penal law defines as rape. As Carroll’s case against Trump was grounded in New York law, this was a problem.

As is shown in the following notes, the definition of rape in the New York Penal Law is far narrower than the meaning of “rape” in common modern parlance, its definition in some dictionaries, in some federal and state criminal statutes,3 and elsewhere.4 The finding that Ms. Carroll failed to prove that she was “raped” within the meaning of the New York Penal Law does not mean that she failed to prove that Mr. Trump “raped” her as many people commonly understand the word “rape.” Indeed, as the evidence at trial recounted below makes clear, the jury found that Mr. Trump in fact did exactly that.

In footnote 2, Judge Kaplan runs through the definition of rape in Black’s Law Dictionary, various laws and the definition of the American Psychological Association, all of which provide a definition of rape that involves any penetration of the vagina, without limitation to a penis. And indeed, had this happened across the river, it would have been rape. But it happened in Manhattan, where it was sexual abuse not because there was any way on the evidence presented that there was no vaginal penetration, but because the penetration was digital rather than penile.

Judge Kaplan was having none of it.

Instead, the proof convincingly established, and the jury implicitly found, that Mr. Trump deliberately and forcibly penetrated Ms. Carroll’s vagina with his fingers, causing immediate pain and long lasting emotional and psychological harm. Mr. Trump’s argument therefore ignores the bulk of the evidence at trial, misinterprets the jury’s verdict, and mistakenly focuses on the New York Penal Law definition of “rape” to the exclusion of the meaning of that word as it often is used in everyday life and of the evidence of what actually occurred between Ms. Carroll and Mr. Trump.

And therein lies the problem, that the New York penal law definition of rape varies significantly from other statutory, dictionary and medical definitions of rape. But this is a court, and this court is ruling based on the law of New York, and the law of New York does not define Trump’s conduct as “rape.” Surely, the judge was outraged at Trump’s, and his attorney’s, attempt to sanitize his violation of Carroll’s vagina by claiming that the jury found he didn’t “rape” her, but the fact remains that the jury did not find that Trump raped her. It’s not the jury’s fault. It’s not Judge Kaplan’s fault. But that was still what happened. Blame New York penal law for its definition of rape.

Carroll accused Trump of rape based on its more common, ordinary meaning, which finds support in the law and the dictionary. It’s not merely the colloquial understanding of the meaning of rape, which to some no longer involves any physical contact at all. And Trump’s defamation suit against Carroll for saying he raped her will find ample support in its substantial accuracy given that the vast majority of legal definitions aren’t limited to penile penetration.

But for the purpose of Judge Kaplan’s rationale, is the “common, modern parlance” a basis upon which he can hold that the jury “implicitly” found Trump committed rape? That would leave the definition of such a heinous crime to the tender sensibilities of the unduly passionate. Judge Kaplan could have overcome this hurdle by noting that the conduct found by the jury was not rape under the New York Penal Law, but would have been rape as defined by almost every other state’s and the federal government’s definition.

So Trump’s claim he was not found to be a rapist is only accurate in the most hyper-technical sense based on an anomalous statutory definition, but that he was very much a rapist under essentially every other legal, dictionary and medical definition. There was no need to resort to stepping on the slippery slope of “common modern parlance” when there are plenty of laws, already noted in footnote 2, that would suffice.