(CN) – Thanks to the #MeToo movement, women of all ages have come forward to share stories of sexual assault and harassment, from college freshmen to Supreme Court Justice Ruth Bader Ginsburg.
But in many of these cases, if an alleged victim wants to seek legal recourse, they face a problem: The statutes of limitations have run out. Too much time has passed for them to file a lawsuit in civil court asserting claims like sexual assault with battery.
Some, however, have sought a measure of justice by filing defamation lawsuits against their alleged attackers.
In December, Leigh Corfman sued former judge Roy Moore after he said she was a liar during his campaign for U.S. Senate in Alabama. Corfman’s claim that Moore touched her over her underwear 40 years ago when she was 14 and he 32 was one of several similar stories that dominated the final weeks of that race.
Corfman’s lawsuit does not ask for damages. Instead, she only wants an apology and for Moore to pay her attorney fees.
Corfman is not the only example of alleged victims bringing defamation actions when the time has passed to file a civil sexual-assault case.
Over the last several years, high-profile defamation lawsuits have alleged that comedian Bill Cosby, President Donald Trump and former Fox News anchor Bill O’Reilly falsely claimed their accusers are liars.
However, lawyers who have brought these lawsuits say this strategy isn’t exactly new. Instead, they say the #MeToo movement has brought more attention to the practice of using defamation complaints against alleged abusers, but it’s a long, hard legal road. In many cases, it’s the alleged victims who are on the receiving end of a libel suit brought by the person they accused.
The current social climate has increased the focus on claims of sexual assault, attorney Lisa Bloom said in an interview, but defamation lawsuits are labor intensive and have to meet strict standards.
“Defamation has always been available, but I think people are looking at it a lot more closely since the #MeToo movement of the last several months,” said Bloom, who is representing Janice Dickinson in her defamation case against Cosby.
Dickinson sued Cosby in 2015 because he called her a liar through his lawyer after she came forward with a story about a pill, a glass of wine and an alleged rape in Lake Tahoe in 1982.
It’s been three active years of litigation, Bloom said. The case has been appealed to the California Supreme Court, but discovery has not been made yet. And Bloom is working on a pro-bono basis.
Bloom said a defamation lawsuit can be a legal tool for when an accused perpetrator of sexual assault goes beyond a denial and makes a false statement.
“So let’s say a woman accuses a high-profile man of sexual assault. He denies it,” Bloom said. “I don’t think that alone would be sufficient for a defamation case. But in my Janice Dickinson case, the attorney went much further. He called her a liar. He said her statements were false, defamatory, lies. He called her a liar about five different ways.”
But more often than not, Bloom said, those accused of abuse have more cash and more access to the legal system and sue their accusers for defamation. Even the threat of a lawsuit can chill an alleged victim’s plans to speak out.
“Remember Donald Trump during the campaign said he was going to sue the women who accused him of sexual assault” she said. “I actually had clients who were considering coming out publicly and after he said that, they were afraid and they didn’t want to because they said, ‘He’s going to sue us.’”
However, one woman did sue Trump. Summer Zervos, a former contestant on “The Apprentice,” filed a lawsuit in Manhattan Supreme Court three days before Trump’s inauguration alleging his comments on the campaign trail defamed her. Trump’s lawyers moved to dismiss the case last month, arguing state courts don’t have jurisdiction over a sitting president.
One of Zervos’ lawyers is Mariann Wang, who is not surprised by the recent wave of defamation cases.
“It’s not strange to me and it’s not unusual – given the nature of the underlying harm and the underlying power dynamic, people don’t come forward sooner,” Wang said in an interview.
Often, when alleged victims speak out, Wang said the people accused of sexual abuse “continue to do what they’ve always done” and defend themselves, often using false statements to do so and setting the stage for a defamation lawsuit.
For Wang and other lawyers that spoke to Courthouse News, the fact that some women are using defamation lawsuits to litigate an underlying issue illustrates a need for reform or elimination of statutes of limitations so alleged victims have more time to come forward.
Indeed, some states have rolled back the statute of limitations for child sex-abuse cases, Wang noted.
“The law, right now, I think is a little bit behind the facts,” she said.
Meanwhile, Elizabeth Nolan Brown, associate editor at Reason Magazine, who writes about sex policy for the libertarian-leaning publication, said rolling back the statutes of limitations hurts due process and the victims.
For the accused, it’s harder to collect evidence and find witnesses to mount a defense for something that allegedly happened decades ago. And for the alleged victims, Brown said, they already have a difficult time being taken seriously by law enforcement and the criminal justice system.
If the statutes of limitations were expanded, Brown said, “I think we’re going to have a lot of people who are finding that they’re still not going to get any justice, that they’re going to have even less hope of getting justice for being victims of these crimes.”
Brown points to Title IX investigations, which are handled by public universities, as an example of policies that can backfire because they raise due process and constitutional issues.
Prominent Title IX attorney John Clune sees defamation lawsuits against alleged abusers as “an emerging option for survivors of sexual violence.”
Clune and his firm have brought lawsuits against schools like the University of Arizona and University of Colorado after women claimed student-athletes raped them. However, Clune says he hasn’t filed a defamation lawsuit on behalf of an alleged victim.
While it isn’t a scientific measurement, Clune said he sees about twice as many accused students suing alleged victims for defamation than the other way around. It’s a way to put pressure on an accuser to make her go away, he said.
Either way, for both alleged victim and alleged perpetrator, a defamation lawsuit is a difficult course to take, Clune said.
It may be a challenge to get a lawyer to take a defamation case because the measure of damages would likely be small – smaller than a direct claim that the defendant committed sexual assault. In addition, the proceedings for defamation cases often drag on for months, making paying a lawyer by the hour a steep expense.
Furthermore, some alleged perpetrators – those that have not made fortunes or whose influence doesn’t come from the national spotlight – don’t have the means to pay the damages.
“Even if you had a case with a lot of damages, who is going to pay it?” Clune said. “In the context of campus rape cases, neither the victim nor the accused student generally have a lot of money. They’re college kids.”