In the years since the #MeToo movement took off — when women spoke out publicly about sexual assault and harassment by powerful men in an effort to hold them accountable — many of the people accused of misconduct have filed defamation lawsuits against their accusers, NPR reports. Although some lawyers say that this option gives people who have been wrongly accused a way of clearing their names, attorney Victoria Burke and other advocates say the suits can intimidate victims into silence. It's played out in public, high-profile cases like that of singer Ke$ha and music producer Dr. Luke and actors Johnny Depp and Amber Heard. But the reach of the problem goes far beyond the rich and famous, says Jennifer Mondino, senior director of the National Women's Law Center's Times Up Legal Defense Fund. "From my end, I am having people in all walks of life and all kinds of industries in all parts of the country facing these kinds of defamation charges as a form of retaliation," Mondino says. She says she sees students and low-income service workers threatened with defamation lawsuits for speaking out. Even when accusers file complaints about harassment to employers or law enforcement, there have been incidents where the accused uses these statements to file defamation cases, Mondino says.
Since learning about the trend of defamation lawsuits being filed against accusers, Burke has drafted legislative language that would prohibit a person accused of sexual misconduct, abuse, harassment or domestic violence from using a defamation lawsuit to silence or retaliate against a victim. What Burke is proposing is an expansion of many states' anti-SLAPP (strategic lawsuit against public participation) laws. A SLAPP lawsuit, like a defamation suit, is filed in retaliation against a victim, witness, whistleblower or journalist with the intention of intimidating or silencing them. Burke found success last October in her home state of California. Gov. Gavin Newsom signed an amendment — based on the proposal crafted by Burke with some added changes — to existing state law that raised the threshold for proving defamation when it relates to sexual assault or harassment. The person filing the lawsuit must now show that the person alleging sexual assault or harassment spoke with malice. This means making statements that are knowingly false or with the intention to cause harm. California's 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 attorney's fees and other costs.
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