Allegations of sexual assault often come down to a matter of “he said/she said” since such assaults don’t typically have witnesses. Juries and judges must look at other evidence to determine who’s telling the truth.
Certainly, no one wants to be falsely accused of sexual assault. However, don’t victims have a right to name the person who assaulted them – even if it’s too late to hold them criminally accountable and they choose to hold them civilly liable as their only recourse?
There have been some high-profile cases in recent years where men accused of assault sued their accusers for defamation. In one case, involving singer Kesha and a music producer, they reached a settlement. In another, involving Taylor Swift and a DJ, after he sued her for defamation, she sued him for sexual assault and won.
What does the law say?
On Jan. 1 of this year, California changed state law so that it’s more difficult for someone to sue a sexual assault accuser for defamation. The law, which Gov. Gavin Newsom signed late last year, now states, “A communication made by an individual, without malice, regarding an incident of sexual assault, harassment, or discrimination is privileged.”
For someone to successfully hold a person liable for defamation, they must prove that they acted out of malice or ill will. As you may know, Gov. Newsom’s wife Jennifer is among the women who have testified that they were raped by disgraced producer Harvey Weinstein.
Further, if an alleged perpetrator loses a defamation suit, they now have to pay their accuser’s “reasonable attorney’s fees and costs for successfully defending themselves in the litigation, plus treble damages for any harm caused to them by the defamation action against them.”
Defamation suits of the rich and famous
The law professor behind the new law was incentivized by her own assault and is now taking her fight to other states. She notes that it seems to have become more common for those accused of assault to turn around and sue their accusers for defamation. Because famous men have done it, others have felt emboldened to do the same. Unlike Kesha and Taylor Swift, many accusers don’t have the means to battle them in court.
In recent years, California has given survivors of sexual abuse and assault more time to hold their perpetrators liable. With this latest change to the law, they have less chance of being sued for defamation and, if they are, of having to face financial consequences. Getting experienced legal guidance is the best first step in this journey.