Worried About Getting Sued for Reporting Sexual Abuse? Here Are Some Tips.

The #MeToo movement has drawn an outpouring of testimony by the victims of sexual harassment and sexual abuse. In response, there has been a surge in retaliatory defamation lawsuits by their abusers. Many lawyers say they've seen a spike in defamation lawsuits in recent years. And in the past two months, I have received more than a half-dozen calls from women who were threatened for telling their stories.

These threats are real, and are designed to force the victims back into silence. But there are many ways to minimize or limit these legal risks.

First, and foremost, if you’re telling the truth, you shouldn’t be sued for defamation. Truth is an absolute protection for American libel defendants since the historic Zenger case in 1735.

Yet judges and juries can get things wrong. It happens. Especially if the abuser is willing to lie to counter your testimony. So you may need to have solid legal expertise to defend yourself in court. Attorneys can be expensive, especially good ones. But you may already have the right to insurer-paid counsel simply because you own your home or rent an apartment. Homeowners’ and renters’ policies usually insure against libel claims, and will provide a defense. Call your broker and review your general liability insurance policies.

In addition to insurance, there are many practical ways to minimize your legal risks.

First, many states provide for special protections for communications made to government agencies. If your disclosure is to a state or local agency, including the police, it may be entitled to full or partial immunity under applicable law. In Washington State, for example, we have a law that says: “A person who communicates a complaint or information to any branch or agency of federal, state, or local government . . . is immune from civil liability for claims based upon the communication to the agency or organization regarding any matter reasonably of concern to that agency.” In other words, you can’t be held liable for anything you report to a government agency. Other states may provide similar protections.

Second, to the extent that you discuss and cite information that is contained in a public record, such as a lawsuit or a police report, libel law generally recognizes what is called the “fair report” privilege, which makes subsequent discussions of these public records subject to either an absolute or conditional immunity from civil liability.

HAVE YOU BEEN HARASSED ON THE JOB? TELL US YOUR STORY. 

Third, the person you communicate to may be protected by another privilege, called the “common interest” privilege. If you share your information with someone who has a common interest with you, such as your company’s human resources department, that information-sharing may be subject to potential immunity or, in many states, a requirement that the plaintiff prove that the defendant acted with “actual malice” — which is defined as knowing falsity or reckless disregard of the truth, with evidence of convincing clarity.

Fourth, that standard of fault varies depending on the plaintiff’s status. In the United States, public figures (Weinstein) and public officials (Trump) are required to prove “actual malice,” but others, ordinary citizens, are required to prove that the false statement of fact was made negligently -- that the statement was disseminated without exercising ordinary care.

Finally, depending on your state, victims who speak out against sexual harassment may have the benefits of a strong law deterring abusive, retaliatory lawsuits, which are often called SLAPPs (“strategic lawsuits against public participation”). These lawsuits are used to silence and intimidate critics by burdening them with the cost of legal defense. Anti-SLAPP laws allow someone being sued for defamation to move to strike the case because it involves speech on a matter of public concern. They also require plaintiffs to present evidence that they would prevail in a lawsuit. This can offer protections for #MeToo victims, including dismissals of cases early in the proceedings and the awarding attorneys’ fees for meritless cases.

So look at your options. Proceed with caution. But don’t be afraid to tell the truth.

Bruce Johnson, a partner in the Seattle office of Davis Wright Tremaine LLP, has defended defamation cases for 40 years. The views expressed in the article are the author's own and do not necessarily represent or reflect the views of the ACLU.

READ MORE IN OUR SERIES, "DISMANTLING SEXUAL HARASSMENT"

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Dr. Timothy Leary

Both sexual harassment and defamation lawsuits are just another way of trying to get something for nothing. As any shyster will tell you: "If you've got the money, I think we've got a case."

Lisa Rabey

In the spring of 2014, I made a public statement naming an alleged serial sexual harasser in my professional community by calling him out on a public forum (Twitter). The alleged and I are Americans. This is important. A friend of mine, who is Canadian, wrote a blog post detailing how many professional communities do not police themselves which causes the whisper network against such incidents to skyrocket. The alleged served my friend and I with papers for an immediate apology and retraction on our social networks or else we would be sued in a Canadian court. We stood our ground and were then served with papers asking for $1.25M USD in damages plus legal fees. On a technicallity as the suit was in Ontario courts, I could excuse myself since the law states if you're sued in one country, you cannot be sued for the same thing in another country. Since I started this mess, I stood by my friend.

22 women came forward, privately, sharing their experiences with the alleged. I had videos of the alleged bragging about his conquests, copies of emails and text messages. It wasn't enough. Fear of professional judgement, retribution, retaliation, and mental stress among other things, only one went forward and signed a deposition. Eight months after we were served, the woman who signed the deposition, myself, and my friend spent a day in a Canadian law office being cross-examined. After the cross-examining, the alleged's lawyers approached us that they would drop the suit if we made public retractions and apologies. We were told by our Canadian lawyers that in Canadian courts family matters were given first priority and we were looking at at least two years before going to trial. At least. My friend and I were unemployed, had no money, and we were drained of all emotional and mental strength. We took the deal.

After we published the retraction and apology and the tweets, we were almost doxxed. I say "almost" because my husband and I share different last names, he's not on social networks or particpates on online forums and our utilities is in his name so all they could come forward with is my old information which didn't trace back to my current life. My friend writes under a pseudonym publicly for their work but that didn't stop the trolls from hunting them down and publishing as much information about them as possible. It also did not stop the attempts at hacking our blogs (we had over 2K attempts on my blog alone), the death threats and the various types of shaming, and other unwanted attentions against us. The alleged's lawyers were high profile in each countries and they both are friendly with one of the lawyers who run PopeHat (where someone approached them with our case). Popehat called us grifters and attention seekers. Vox wrote an article about us with all of the factual information about us (what we did for a living, how the case came out) so incorrect it was laughable. The case was discussed highly in public and professional forums. Google my name. After all this time no amount of SEO can remove the taint of the case.

Four years later, I am still getting death threats and shaming at least once a month.

In the four years since we were served and the three since the case was dropped, neither my friend nor I have been able to secure jobs. I've had two job offers retracted. My friend has had the same. We lost a lot of supporters and friends when the case was dismissed. Some wanted a refund on the money they contributed to our legal fund. The alleged did a smear campaign on as many social networks as possible with naming us and posting pictures of a copy of The Crucibal. We were called witchhunters, liars, and publicly denounced professionally. Some days I don't know if I will be able to get out of this hole and while I'm not suicidal, I wonder what I can do to make this all go away.

So when we talk about the #metoo movement and the watershed sexual harrassment movement, let's step away from basically useless legal advice and talk about the reality of what may happen when someone comes forward. Let's talk about how people in the position of power and money, as is the case of the alleged comes from a monied family, that power and money always trumps over truth. This is not to say victims shouldn't come forward but it is to say the system has failed to not only support us but to protect us. The system is broken and no amount of pithy articles is going to change that. And as long as the system remains broken, this whole mess is going to get a lot worse.

Jhon Z Baker

Wow, You were victimized twice at least by the asshole and then times beyond count by the uninformed and judgemental public at large. I am so sorry that this has happened/is happening to you and your friend. There needs to be a new way we handle victims identity so this sort of reprehensible backlash cannot continue.

Dr. Joseph Goebbels

There is more than one way of seeking and obtaining justice. If you have read the book the "The Godfather" your will recall that Don Corleone had a friend who was an undertaker. This undertaker came to Mr. Corleone with a problem concerning his daughter. With 22 boyfriends or husbands available perhaps a godfather solution to your situation would be appropriate.

Anonymous

Lisa, I am so, so sorry for what you’ve been through! My brother and his friends raped and sold me when I was little. He is an attorney, too. He knows that money is my weakness right now. Using statements I’d made to family trying to convince them I was telling the truth, and my #metoo post, he threatened to sue me for defamation. We got an attorney using our credit card. It’s so infuriating and hurtful and feels like you are being raped all over again. I didn’t know stuff like this could happen. And you are right about this article. It sounds nice but our system is so screwed up. My attorney said my only safe people I can talk to are my attorney and my church leader. Even my police report can be used against me.

U. Mar

Your story is so disheartening. I'm so sorry for what you have gone through and continue to endure. The worst part is that as awful as it is, it's not surprising. Thank you for posting your story. It reminds me to tread very carefully with the harassment BS I've through. LR, I wish you well and continued strength through this nightmare.

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