Thursday Thinkpiece: Suing for Silence : Sexual Violence and Defamation Law

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Suing for Silence : Sexual Violence and Defamation Law

Author: Mandi Gray
Publisher: UBC Press
Publication Date: March 1, 2024
ISBN: 9780774869171
Page count: 180 pages; 6 x 9

Excerpt: Introduction

In summer 2017, I received a Facebook message from Lynn, a Canadian tattoo artist in her late twenties. Women from all over the world often sent me messages, to share stories like my own, about reporting sexual violence to the police, their university, or their workplace and being met with institutional betrayal. Lynn had a different experience than those I typically heard. Several years earlier, Lynn had been working in France as an apprentice tattoo artist. Her mentor bullied and harassed her. Over time, the bullying and harassment escalated to repeated sexual harassment and, eventually, rape. Her work visa had expired, so she was working under the table, which made her especially vulnerable to his abuse. Eventually, she decided she could no longer tolerate his abuse. She reported him to the police for illegal employment practices and numerous instances of sexual violence. The police laid criminal charges. The case went to trial, and he was acquitted.

Unknown to Lynn, following an acquittal for rape in France, the accused can proceed with both criminal and civil charges against their accuser. Her mentor decided to pursue this option. But Lynn was back in Canada. She received a notice from the Canadian government, informing her that she was being sued and could face jail time for reporting the assault to the police. After a six-year legal battle, Lynn was acquitted of the criminal charges and the lawsuit was unsuccessful. Despite the apparent legal victory, Lynn remained fearful of talking about what had happened to her. The courts deemed that there was not enough evidence to convict her mentor of rape, but they also decided that there was not enough evidence to determine that her allegation was false. Fearful of facing further legal retaliation, she was, effectively, silenced. There were other repercussions. She had to take time of from her art practice to travel to France for court dates, causing her financial problems and costing her professional opportunities at a pivotal time in her career.

At the time, I believed these types of legal actions were an injustice happening elsewhere, not in Canada. Later that summer, I met another woman who shared with me that she had been sued after reporting sexual violence. It happened in Toronto. Like Lynn, she told me that being sued instilled so much fear in her that she self-censored to the point where she even avoided having general conversations among friends about sexual violence.

I had no idea it was possible to be sued for making a formal report of sexual violence. At the time, within both the antiviolence community and feminist academic literature, there was a lack of discussion about the possibility of civil legal action for reporting sexual violence. Ten, that fall, the viral #MeToo hashtag brought sexual violence to the forefront of global discussion. Although the movement was heralded as a sign of progress for women internationally, the people encouraged by the movement to come forward experienced backlash. One mechanism of this backlash was the use of defamation lawsuits. Indeed, they became so common that the New York Times declared in 2020 that defamation lawsuits were the new legal battleground for litigating sexual violence cases: “Women and men on both sides of #MeToo are embracing the centuries-old tool of defamation lawsuits, opening an alternative battlefield for accusations of sexual misconduct.” According to the New York Times, plaintiffs were using defamation law for the typical purpose of dissuading speech that results in reputational damage. But they were also using it to “endorse their version of disputed events.”

In 2021, the United Nations released the Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, which highlighted the global rise in defamation lawsuits, specifically against those who had publicly denounced perpetrators of sexual violence. It stated, “Weaponizing the justice system to silence women feeds impunity while also undermining free speech.” Evidence suggests that this is a global problem. Similar lawsuits have been reported by news media in countries such as the United States, Peru, China, South Korea, India, Australia, England, and France. In the last five years, there have been numerous high-profile defamation lawsuits initiated by powerful men such as Hollywood producer Brett Ratner, Oxford professor Tariq Ramadan, businessman Robert Herjavec, CTV reporter Paul Bliss, poet Jeramy Dodds, writer Stephen Elliott, producer Chris Nelson, musician Marilyn Manson, and popstar Justin Bieber. Famous women who have been public about their experiences of sexual violence have also been sued for defamation, including Taylor Swift and Kesha.

The most notable defamation lawsuit to date is probably actor Johnny Depp’s defamation action against his famous ex-wife Amber Heard. In 2016, Heard fled for divorce from Depp and sought a temporary restraining order alleging physical abuse. A UK newspaper labelled Depp a “wife beater,” which led Depp to sue the newspaper, a case he lost. The judge ruled that the newspaper was accurate in reporting that Depp had been violent in his relationship with Heard and referred to fourteen separate incidents. In the United States, in an op-ed for the Washington Post about how women are treated after reporting domestic violence, Heard wrote: “I became a public figure representing domestic violence, and I felt the full force of our culture’s wrath for women who speak out.” Heard did not name Depp in her article. In 2019, Depp sued Heard for the article. In 2021, Heard countersued. In April 2022, the defamation trial began before a jury.

The six-week trial quickly became a public spectacle as the legal proceedings were livestreamed across social media platforms. Social media content creators took clips of the testimony to make fun of Heard while exonerating Depp. Each day of the trial, hashtags such as #AmberHeardIsALiar and #AmberHeardAbuser trended on social media. Depp supporters globally harassed and attacked anyone who supported Heard or questioned Depp’s claims of innocence. The jurors ruled that both Depp and Heard were liable for defamation. They awarded Depp $15 million in damages, and Heard $2 million. Heard appealed the decision, which was settled in December 2022. She released a public statement declaring that she’d decided to settle because she’d lost faith in the American legal system, a system in which her “unprotected testimony served as entertainment and social media fodder.”

The legal action against Heard, coupled with social media commentary, made a loud statement to people who have experienced sexual violence and those who will experience sexual violence in the years to come: keep quiet or risk serious legal action and social consequences. The more privileged and powerful the man, the more severe the consequences, as these men can harass and abuse with impunity.

While defamation lawsuits tend to be a tool for powerful, rich, and famous men, it is important to stress that they are not the only men who initiate them. Given the resources required to initiate legal action, the men are typically well resourced, but not necessarily famous or wealthy. Nor is it only white, privileged, celebrity women who are being sued. Such cases are simply more likely to be reported by the media. The TIME’s Up Legal Defense Fund, initiated following #MeToo to support Americans who have experienced workplace sexual violence, reported that 33 of the 193 cases they were supporting involved workers who came forward and were then sued for defamation. Many defendants in these legal actions are not privileged and do not have access to the financial resources necessary for legal representation. Access to legal representation is further complicated for survivors experiencing intersecting forms of structural marginalization such as racism, colonialism, ableism, and homophobia.

This book focuses on the experiences of Canadian women who have been sued or threatened with a lawsuit for disclosing or reporting sexual violence or supporting someone who had experienced sexual violence. The research was guided by three central questions: What are the consequences of defamation lawsuits at both the individual and societal levels? To what extent are these lawsuits silencing public discourse about sexual violence? And, finally, are they strategic lawsuits against public participation (SLAPPs)?

The book demonstrates that abusive men can strategically use defamation law to silence accusations of sexual violence and recast themselves as the “true victims” of “false allegations.” When abusive men take legal action against their accusers, the action provides a legitimate avenue, such as the courts, to continue their abusive behaviour. This is not to suggest that men who have been falsely accused of sexual violence should be denied the ability to vindicate their reputations; rather, we must keep in mind that while false accusations do occur, they are incredibly rare.

In Canada, there is a low threshold for what constitutes a defamatory statement: as long as a communication “would cause the plaintiff to lose respect or esteem in the eyes of others,” that communication can be cause for a defamation lawsuit. Therefore, the law of defamation often works in favour of the plaintiff – the person who initiated the lawsuit – because it puts the onus on the defendant to justify their statements, a task that has particular challenges in sexual violence cases, particularly in a legal system demonstrably shaped by discriminatory rape myths.

I employ Jennifer Freyd’s concept of DARVO (deny, attack, and reverse victim and offender) to understand men’s motivation for initiating defamation lawsuits. This concept captures the disingenuous ways that abusive men make use of legal mechanisms to represent themselves as victims while undermining the credibility of the women who have called them out for their abusive behaviour. Abusive men will often threaten defamation lawsuits and make false accusations against the individual who confronted them to further situate themselves as the victims of an unfair attack. This is done strategically to create the impression that they are the real victim and the person who has made the complaint about their behaviour is the offender. The more actions that are taken to hold the offender accountable, the more victimhood the abuser can claim. Freyd acknowledges that men who are innocent will defend themselves against false allegations, but it is abusive men who engage numerous forms of retaliation against their accusers to shift the narrative away from the allegations and toward an investigation into their victimhood because of false allegations.

The Myth of False Accusations as a Common Occurrence

As the #MeToo movement gained traction, a loud antifeminist backlash took over. The countermovement centred white male victimhood by claiming false accusations had victimized these men. It successfully shifted the focus from experiences of gendered violence to the inaccurate notion that men should be worried about being falsely accused of sexual violence. For example, the counterhashtag #HimToo rose to prominence after a woman tweeted that the #MeToo movement had resulted in her son no longer going on dates with women alone “due to the current climate of false sexual accusations by radical feminists with an axe to grind.” The #HimToo hashtag recirculated after Dr. Christine Blasey Ford came forward with allegations of sexual violence against US Supreme Court nominee Brett Kavanaugh. Media pundits and politicians, including former US president Donald Trump, expressed concern that men’s lives were being unfairly destroyed by false allegations of sexual violence. Canadian media pundits similarly linked male victimhood to false allegations. These perspectives perpetuate the harmful myth that false allegations are common and that protecting men’s reputations should take priority over addressing the pervasive and global issue of sexual violence. These perspectives also tend to see an acquittal or an inconclusive investigative finding as evidence of a false allegation. According to law professor Constance Backhouse,

“Not guilty” does not mean you are innocent. It means that the Crown could not prove your guilt beyond a reasonable doubt. And as we know in a sexist legal system, individuals accused of sexual crimes may quite often be guilty, yet the prosecutor is unable to prove it to a jury and judge beyond a reasonable doubt. Trial judges will often say, “I believe the complainant, but the evidence still leaves me with a reasonable doubt regarding the conviction.” Our criminal justice system is quite capable of interpreting the Criminal Code in a sexist way. Consequently, it doesn’t follow that after an acquittal anyone should proclaim that the complainant “lied.” It does not follow. It is not the same thing. It seems to me that we should be careful about allowing the accused to claim, “I’m innocent.”

The problem is that there’s no agreement on what constitutes a false allegation. According to psychologist David Lisak, the most comprehensive and accurate definition of a false allegation of sexual assault comes from the International Association of Chiefs of Police:

The determination that a report of sexual assault is false can be made only if the evidence establishes that no crime was committed or attempted. This determination can be made only after a thorough investigation. This should not be confused with an investigation that fails to prove a sexual assault occurred. In that case the investigation would be labeled unsubstantiated. The determination that a report is false must be supported by evidence that the assault did not happen.

Despite the clarity in this definition, the line between a false accusation and the absence of evidence to substantiate a claim of sexual violence is often blurred in practice. Media and popular discourses tend to conflate false allegations with acquittals and cases unproven by police or campus investigations in a self-perpetuating cycle that keeps the myth that women frequently lie about sexual violence alive. The corollary to this widespread myth is that men and their reputations are the victims of women’s mendacity. Assumptions about women’s capacity to lie are also intertwined with stereotypes about race, gender, and sexuality. The narratives of survivors who experience intersecting forms of structural marginalization are regarded as less credible.

Canadian feminist antiviolence advocates have long recognized that the police’s tendency to declare women’s accusations unfounded is a major barrier to reporting. The frequency with which police dismiss claims of sexual assault came to the public’s attention when journalist Robyn Doolittle, investigating for the Globe and Mail, found that police dismiss sexual assault reports more than any other crime. The Canadian Centre for Justice Statistics Policing Services Program states that an “incident is ‘unfounded’ if it has been determined that no violations of the law took place at that time or location.” Doolittle found that nearly one in five reports of sexual assault are deemed unfounded in Canada. This is nearly double the rate for physical assault and dramatically higher than the rates for all other crimes. When unfounded cases are considered part of the total count of sexual assault charges reported, only 34 percent of such reports result in charges being laid. This staggering rate of dismissal by police, acting as gatekeepers to the criminal legal system, is widely condemned by feminist researchers and advocates who see it as evidence of negligence and discriminatory attitudes about women.

Societal beliefs about women who experience sexual violence also discourage women from reporting. Low reporting can partially be attributed to fear of being disbelieved. According to a 2018 survey, only 5 percent of women who experienced sexual assault reported it to the police. In comparison, 26 percent of women who were physically assaulted reported the assault. In addition to the fear of not being believed, women reported fear of retaliation, shame and embarrassment, and a belief that the experience was minor and therefore not worthy of reporting. Indigenous, Black, and racialized women commonly report revictimization by the police when they attempt to report violence. A recent study of the experiences of Indigenous women in Canada who reported sexual violence to the police found that many Indigenous women felt the police had viciously denied their experiences of violence and made them feel as if they were being interrogated for committing a crime.

Women’s reluctance to formally report to the police is, ironically, another reason that they are vulnerable to defamation lawsuits. The threat of a civil lawsuit disproportionally impacts women who feel they do not have access to formal reporting mechanisms because of systemic marginalization, which may also deter them from seeking other remedies. Toronto lawyer Lillian Cadieux-Shaw highlighted the fact that men who initiate defamation proceedings have something to gain whereas women who report “only face the prospect of harrowing litigation for their troubles.” Furthermore, “when women find out that there is also the possibility that their perpetrator may bring retaliatory litigation against them … why would any woman report?”

The decision to delay reporting or to not report at all can become “evidence” in a defamation proceeding that the sexual violence did not occur and that the complainant must be lying. This happens even though it is well known that there are numerous barriers to reporting and a host of reasons why someone may choose to pursue another avenue to justice. Knowing that the legal system will likely fail them, women may seek informal justice. Informal justice includes justice that is transformative or restorative and the use of social media.

Some of the women I interviewed sought justice outside of the legal system by using alternative means of disclosing their experiences and seeking accountability from the person who caused harm. For example, some relied on informal communication after their formal report was dismissed or minimized by authorities; others were already aware of the realities of the legal system and made active choices to avoid becoming entangled in what they saw as an inherently flawed process. Whatever their reasons, their use of alternative routes to justice made them vulnerable to being sued. Indeed, this act of agency can be re-narrated in legal proceedings to shift the blame onto women: if sexual violence actually occurred, the argument goes, it would have been reported. But reporting to the police does not automatically offer legal protection from a defamation lawsuit. To date, this is an unexplored link in feminist legal and sociolegal critiques, one that bridges the civil and criminal legal systems’ treatment of sexual violence and the vulnerability of those who experience sexual violence to the DARVO ethos in the legal system.

For antifeminist critics, the high rate of unfounded cases is proof that women frequently make false allegations. The systemic dismissal of reports of sexual assault alongside the deeply embedded myth that women frequently lie makes them especially vulnerable to being sued for defamation. Constance Backhouse expanded on the connection:

Every time a woman speaks about sexual coercion or sexual assault, the cultural response is, “women lie.” I would say 99.99 percent that is the initial reaction when a woman speaks. It’s almost a 100 percent pushback that “women are lying, you’re lying, women and children who speak about this lie.” Consequently, we have a culture that is at odds with reality … If you latch the ease of bringing a defamation action onto a culture that believes all women lie – they have the wind at their back. Any woman who makes those comments about a man can be labelled a liar, and a defamation suit can become just automatic. A defamation suit is the kneejerk reaction within a culture that does not believe women.

Despite decades of feminist intervention and plenty of evidence to suggest otherwise, there is a deeply entrenched belief that false allegations of sexual violence are a common occurrence.

Breaking the Silence and Silencing Suits

When someone is accused of defamation, the first thing most lawyers will advise is that they refrain from repeating the allegedly defamatory statements and refrain from speaking about the legal proceedings until they are concluded, a process that can take years. Lawsuits have a widespread silencing effect. The lawsuit has the power to silence those who are sued, but it also instills fear in others that, if they speak out, they will be added to the lawsuit. Even the threat of a lawsuit can remove allegations of sexual violence from the public and private domain. It chills speech at an individual level (deterring those who have experienced sexual violence from speaking up) and a systemic level (silencing media reports and public discourse on allegations and sexual violence more generally).

For this reason, I argue that these lawsuits must be regarded as SLAPPs. SLAPPs are not necessarily initiated to test a case at trial but, rather, to entangle the defendant in a long and expensive legal process while simultaneously keeping them and others quiet about the issue. At face value, these lawsuits look like ordinary civil claims, including defamation, malicious prosecution, abuse of process, conspiracy, and business torts. I argue that such lawsuits also chill public discourse about sexual violence.

Combine this chilling effect with fear of reporting and we are at risk of witnessing the disappearance of reports, disclosures, and discourse of sexual violence. This chilling effect will disproportionately harm women (who are statistically more likely to experience sexual violence) while protecting men (who are more likely to be perpetrators of sexual violence). Ultimately, redressing sexual violence must outweigh the private reputational interests of men accused of sexual violence.

Discussions about sexual violence always, in one way or another, reference silence: why women remain silent about sexual violence; the ways women are systemically silenced (for example, the police denying or minimizing reports of sexual violence); or the tactics abusive men use to ensure that their victims remain silent. Debra Delaet and Elizabeth Mills noted that “a pattern of personal and political silence in response to sexual violence is evident in diverse societies across the globe. Silence shapes the reactions of survivors as well as the institutional responses of state and non-state actors.” Indeed, more generally, silence has long been considered a feature of femininity, “a trope for oppression, passivity, emptiness, stupidity or obedience.” Speaking about sexual violence challenges existing oppressive power structures.

Breaking the silence on sexual violence has become a central tactic of feminist resistance because silencing is the “universal tactic of perpetrators, imposed on victims of this crime unlike any other.” bell hooks stresses the importance of breaking the silence:

Moving from silence into speech is for the oppressed, the colonized, the exploited, and those who stand and struggle side-by-side, a gesture of defiance that heals, that makes new life and new growth possible. It is that act of speech, of “talking back,” that is no mere gesture of empty words, that is the expression of our movement from object to subject – the liberated voice.

The #MeToo movement reignited the demand to break the silence on sexual violence. Following the viral hashtag, public discussion about sexual violence occurred on a global scale, largely attributed to social media, and became impossible to ignore. Shortly after, Time magazine named the Silence Breakers – from well-known movie stars and community organizers to hotel workers and office staff – the 2017 “Person of the Year.” This issue marked the historic significance of the #MeToo movement, noting the sheer volume of disclosures and the numerous political and legal actions being initiated internationally. The issue also recognized the intertwining of silence with sexual violence, which work together to disempower those who experience violence while protecting the perpetrators. Edward Felsenthal, editor-in-chief, said he chose the Silence Breakers as person of the year because of the incredible significance of “giving voice to open secrets, for moving whisper networks onto social networks, for pushing us all to stop accepting the unacceptable.” But as sexual violence discourse entered the public realm to an unprecedented degree, powerful men looked for ways to silence and push the allegations out of the public sphere and into obscurity. I argue that if such lawsuits continue, we will witness the disappearance of sexual violence discourse, not just in the public sphere but also in the private sphere.