Sex-Assault Accusers Turn to Defamation Lawsuits in #MeToo Era

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.”

Follow @jcksndnl

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