There aren’t many avenues available for those falsely accused of sexual misconduct, and since the glory days of #MeToo when a mere accusation was more than enough to destroy a person’s career, and possibly his life, even the limited option have been fraught with the potential to be ruinous. But California legislators have decided that one option, not great but at least available, should be taken off the table.
California lawmakers voted Thursday to protect sexual assault survivors from retaliatory lawsuits, years after a former state lawmaker sued a woman over her sexual misconduct allegations against him.
Supporters of the legislation hope it will counteract efforts to silence victims.
Granted, the threat of a defamation suit, akin to SLAPP suits, can be used by someone with the wherewithal to sue in order to silence legitimate accusers. But then, California already has a robust anti-SLAPP law that enables those wrongfully sued for defamation to expeditiously move to dismiss and receive their legal fees from an abusive litigant. But this would go a few steps further.
The bill, which passed overwhelmingly in the Assembly with bipartisan support, would make it clear that a victim’s comments about sexual assault or harassment are protected against defamation lawsuits if the allegation is not knowingly false or made recklessly. It would also help a victim who successfully defends themselves in a defamation lawsuit to recover attorney’s fees and damages.
This sounds remarkably like the “actual malice” standard of Times v. Sullivan, which is almost impossible to prove in the absence of a host of hosts sending emails admitting their knowing falsity and disbelief in what they’re publicly spewing.
Pamela Lopez, a lobbyist who accused a lawmaker of sexual assault in 2017, said a defamation lawsuit used as a retaliation tactic goes beyond trying to disempower survivors.
“It is also an attempt to take away the power of every person who wants to be part of a conversation with survivors about how we wind up in a culture that perpetuates sexual assault and sexual harassment,” she said.
The nature of defamation litigation has long been a high hurdle to surmount given the nature of most sexual assault accusations. Much as the “she said/he said” nature of these accusation make it difficult to meet the burden of proof that the conduct occurred, which is why the mantra of “believe women” in the absence of proof has replaced the presumption of innocence when it comes to sex accusations, it presents the opposite problem in a defamation suit where the burden of proof is one the party accusing the other of defamatory falsity. She might not have sufficient evidence that a sexual assault occurred, but he doesn’t have sufficient evidence that it didn’t.
Yet, there are few other avenues for the wrongfully accused to take affirmative action against false accusers. And in some instances, when a person has no other option to challenge the attack on his reputation and the damage it’s done to his life and career, defamation becomes the only option.
Assemblymember Cecilia Aguiar-Curry, who authored the bill, said it’s essential for lawmakers to try to protect people from sexual misconduct in the first place.
“It is just as imperative that we protect them from revenge lawsuits,” the Democrat representing Colusa County said.
The mechanism by which society has chosen to address accusations, whether of sexual assault or defamation, is the legal system. And, indeed, the legal system protects those who use the mechanism from being sued for defamation by making official accusations subject to the litigation privilege. The problem, however, is that so many accusations are now made on social media or outside the official channels of dispute resolution such that there is no mechanism by which an accusation has to be proven and no opportunity for an accused to defend himself from false accusation. Essentially, someone can just accuse another person of a heinous wrong in the ether and not only is he presumed guilty, but he’s denied any means to challenge it. Except, perhaps, by bringing a defamation suit.
The concern about retaliatory suits is not without cause, and it’s not that people with the financial means don’t abuse lawsuits to retaliate and silence those who accuse them. But this is what the legal system was built to address, to distinguish between the use of lawsuits to retaliate and suits to address legitimate claims. And to the extent it favored the wealthy and powerful (who are by no means necessarily the sexual assault accusers in all instances rather than some male college sophomore), the existence of strong anti-SLAPP legislation already levels the playing field to a significant extent.
But if defamation suits against false sex accusers are elevated to the same standard used to protect the press for disclosing the wrong of public officials, it will effectively make this avenue unavailable to the victims of false accusations, leaving them with no where to challenge facile accusations of sexual wrongdoing. If one is concerned about the harm done to victims, it’s necessary to have a mechanism by which society can decide whether the victim is the false accuser or the falsely accused.
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