This attorney is fighting defamation lawsuits that can silence sexual assault victims

Editor’s note: The following story is about the topic of sexual violence.

Victoria Burke remembers waking up in the hospital in December 2019 and not being sure how she got there. The last memory she had was going for a drink with an old acquaintance.

“One minute I’m in this nice restaurant and the next minute I wake up and come out of a severe coma in the ER, not knowing how I got there,” Burke says. “It was absolutely terrifying.”

Eventually, she found out what happened: After a drink, this person took her back to her apartment complex. They stayed in his car for over an hour until 911 was called. Paramedics arrived to find Burke incoherent, vomiting, her shirt askew and breasts visible. The knowledge did not stick.

Burke believes this person attacked her.

When she recounted this painful experience to a friend, who is also a lawyer, her friend had a clear warning: do not say this person’s name or publicly accuse him of assault.

“He could sue you for defamation,” Burke said she recalled her friend saying.

Burke was shocked – and angry.

Her friend was right: In the years since the #MeToo movement took off — as women publicly spoke out about sexual assault and harassment by powerful men in an effort to hold them accountable — many of the people charged with misconduct have accused, filed defamation lawsuits against their accusers. While some attorneys say the option gives people who have been wrongly accused a way to clear their names, Burke and other advocates say the lawsuits could silence victims.

It takes place in public, high-profile cases such as those of singer Ke$ha and music producer Dr. Luke and actors Johnny Depp and Amber Heard.

But the scope of the problem extends far beyond the rich and famous, said Jennifer Mondino, senior director of the National Women’s Law Center’s Times Up Legal Defense Fund.

“For my part, I see people from all walks of life and all kinds of sectors in all parts of the country facing these kinds of defamation accusations as a form of retaliation,” Mondino said.

She says she sees students and low-income workers being threatened with defamation lawsuits for speaking out. Even when prosecutors file harassment complaints with employers or police, there have been incidents of the suspect using these statements to file defamation lawsuits, Mondino says.

Since hearing about this, Burke, an attorney and professor at Southwestern Law School in Los Angeles, says she has decided to put her legal skills to use and her mistreatment as a motivation to protect victims of assault, abuse, and harassment from retaliation for defamation suits.

Burke, along with lawmakers from New Hampshire, New Jersey, Delaware and Oregon, are pushing to change state-level defamation laws to ensure they can continue to speak out against their abusers.

Damian Dovarganes/AP

AP

The threat lingers with the victims

Since hearing about the trend of defamation lawsuits being filed against plaintiffs, Burke has drafted legislation that would prohibit a person accused of sexual misconduct, abuse, harassment or domestic violence from using a defamation lawsuit to accuse a victim of to silence or take revenge. This includes cases where the alleged abuser is publicly named.

What Burke is proposing is an expansion of many states’ anti-SLAPP (Strategic Lawsuit Against Public Participation) laws. A SLAPP lawsuit, like a defamation lawsuit, is filed in retaliation against a victim, witness, whistleblower, or journalist with the intent to intimidate or silence them. Anti-SLAPP laws are intended to protect against these lawsuits and prevent people from using the legal system as a means of intimidation and to silence people and the press.

Many states with anti-SLAPP laws do not expressly protect victims of sexual assault, abuse or discrimination, leaving them open to defamation lawsuits from their attackers, according to Burke.

Advocacy groups, including the National Women’s Law Center and the Rape, Abuse & Incest National Network, have worked on similar legislative efforts in recent years to strengthen those laws to protect victims. These groups say they support and believe in Burke’s efforts Such laws create a strong barrier for abusers to continue their business.

It’s a necessary change, Mondino says, as defamation lawsuits are filed against victims who speak out are prohibitively expensive, time-consuming and emotionally draining, contributing to a silencing effect on all victims, now and in the future.

Burke’s proposal is taken up

Burke found success in her home state of California last October. Governor Gavin Newsom signed an amendment — based on Burke’s proposal with some added changes — to existing state law that raised the threshold for proving defamation if it involves sexual assault or harassment.

The person filing the lawsuit must now prove that the person alleging the assault or harassment spoke with malice. This means making statements that are knowingly false or with the intent to cause harm.

The California amendment also requires that if a lawsuit is determined to have been frivolous and filed for retaliation, the plaintiff will be responsible for covering the defendant’s attorneys’ fees and other costs.

These additional protections, Burke, Mondino and other advocates say, will help prevent retaliation lawsuits designed to silence accusers.

Burke’s efforts have made progress in other states as well. In New Jersey, lawmakers introduced a version of Burke’s proposal in September.

And in Illinois, state Rep. Mary Beth Canty plans to advance a version of Burke’s proposal at the upcoming General Assembly meeting.

“I’m a survivor myself, so it was a bit of kismet when Victoria reached out to me,” Canty says. In 2023 and then again in 2024, Canty introduced a version of Burke’s bill. The 2024 version, HB 5452, which built on Burke’s proposal, passed committee hearings and was referred to the House Rules Committee in April. But time ran out when the term of the Illinois State Legislature ended about a month later.

“We can’t do better if we don’t allow people to speak their truth,” Canty says of her efforts.

Canty says she remains committed to reintroducing the bill during the legislative session that begins this month. She hopes to include an element that addresses potential retaliation against students at Illinois colleges and universities. Her HB 5452 aimed to ensure that victims are not retaliated against in Title IX or sexual misconduct cases at their colleges for speaking out about assault, harassment or other harm.

Eric Rosenberg, an attorney who has represented many students accused of assault, expressed concern about elements of these types of bills.

Rosenberg says he has “zero tolerance for sexual assault,” but that since 2011 his firm — Ohio-based Rosenberg & Ball — has represented hundreds of students accused of sexual misconduct but found innocent of the charges. Allowing individuals to file defamation lawsuits in cases of sexual assault or harassment-related allegations made against them gives those who may be falsely accused an important opportunity to clear their names, he says.

Rosenberg has filed “numerous defamation claims on behalf of falsely accused students across the country,” many of which ended in settlements, he says.

Of bills like Canty’s, Rosenberg says, “If you were to give someone blanket immunity for a false claim of sexual abuse, what remedy is left for the accused?”

Canty also says he wants to ensure that people are protected against dubious claims. Both she and Burke point to data showing that false reports of abuse are uncommon.

For example, a 2010 study found that reports of false assault were relatively rare, ranging from 2% to 10% of the total.

Canty also says people falsely accused of assault can clear their names under current law. But, she says, there is currently no way to protect those who have been attacked and want to talk about their experiences.

“I know people will always want to point out false claims and say that false claims can have such damaging consequences for a student’s future. But a sexual assault also has negative consequences for a student’s future. And I think we have to take into account the care for both students, Canty says.

In the short time that Burke has worked to get her proposal passed, she has encountered many people at meetings with lawmakers and other events who have come to her to share their own experiences with assault or harassment, but even years after their assault, largely stayed quiet and # Me too.

“A lot of these people never reported it, but they will tell me,” Burke says. And she is reminded why she is walking this path.

“I want people to be able to speak out and tell me,” she says. “But I want people to feel safe telling anyone.”

If you or someone you know has experienced sexual violence, you can get free and confidential support by calling the phone number
National Sexual Assault Hotline at 800-656-HOPE.

Copyright 2024 NPR