Sexual abuse survivors beware - the defamation risk
• Two adult sisters accuse their uncle of sexually assaulting them as young children through spoken words and emails sent to family members. The uncle successfully sues them for defamation. The sisters are ordered to pay him $125,000 in damages plus his legal costs. (Vanderkooy v. Vanderkooy, 2013 ONSC 4796)
• An adult sister sues her brother for childhood sexual and physical abuse and he counter-sues her for defamation based on emails, letters and postcards she sent to family members, lawyers and a former high school friend about his alleged abuse. The sister is unsuccessful with her lawsuit and although she satisfies the court that her statements to family members and lawyers were defensible, she fails to do so in relation to her communication with her former friend. She is ordered to pay her brother $5,000 in damages for defamation plus his legal costs. (Whitfield v. Whitfield, 2016 ONCA 581)
These are two recent examples of cases where Ontario courts have ruled in favour of individuals who claim they had been defamed by unproven allegations of sexual assault. In this internet age, more than ever, it is critical that survivors of sexual abuse, and the family members and friends who support them, be extremely careful about how, to whom and in what forum they disseminate information that accuses someone of sexual assault. These are understandably very serious allegations that can and do destroy lives (on both sides). A counter-strategy of those who have been so accused – whether or not they actually committed sexual assault – can be to take the offensive and sue their accusers for defamation, thereby putting their alleged victims on the defensive.
Here, I provide some background and basic information on steps survivors of sexual abuse (and those who support them) can take to help protect themselves against successful defamation lawsuits.
Many individuals who have been sexually abused feel great shame and keep their abuse a secret, telling no one. Others tell those close to them what happened, and still others speak and/or write widely about their experiences of abuse. Written disclosures can take many forms beyond letters, and include emails, Facebook, Twitter and other social media postings, and reader comment sections on the Internet. Some may even post online videos in which they talk about their experiences.
There are many motivations for speaking about sexual abuse. These include protecting others who are believed to be directly at risk of also being hurt by the same perpetrator, or more generally warning those at risk of exploitation and violation in similar circumstances. Sometimes the motivation for disclosure is more self-focused to seek out help and support, such as when one tells a spouse, a parent or a health care provider. Other times, the impetus for speaking out is to rid oneself of the shame, self-blame and secrecy that previously shrouded the abuse, and to reclaim a sense of autonomy and empowerment. The intent may also be to strike back at, shame and isolate the perpetrator – in other words, “hurt” him or her back.
Whatever the motivation or motivations and whomever the audience, there is always risk when one communicates experiences of sexual abuse to third parties. A defamation lawsuit, whether well-founded or not, is a real danger. Suddenly, the person believing she or he was the one wronged is accused of being the wrongdoer. The tables are turned, and the person claiming to be the victim is put on the defensive with all of the emotional and financial costs associated with responding to a defamation suit.
Remember, anyone can start a lawsuit. Whether or not a court will ultimately validate the claims made in a defamation lawsuit will depend on an application of the legal principles summarized below to the particular facts of a case.
Key Legal Principles
An accusation of sexual assault against someone is by its very nature “defamatory”. It hurts the reputation of the person accused and risks seriously lowering him or her in the eyes of others, regardless of whether or not the allegation is true. The defamatory statement is presumed in law to be false, putting the onus on the person(s) who made the statement to marshal the evidence and legal arguments necessary to justify or excuse the statements.
It is important to appreciate that it is not only the person who first made and circulated the defamatory statement that is at risk of being sued for defamation, but also others who repeat or republish the statement by, for example, verbally telling or forwarding an electronic communication, such as an email, to others. It is therefore essential that family members and friends who may be feeling intense anger, upset and/or betrayal that a loved one has been hurt and want to demonstrate their support, understand that by more widely disseminating the allegations, they become directly responsible for their actions and are not shielded by the fact that the allegations originated with someone else.
(a) The Defence of Truth
While “truth”, which is also known as the “defence of justification”, is a complete defence to a claim for defamation, the onus of proving the truth of the defamatory statement lies on the person who made the statement. This means she or he must establish that what they said happened, did happen. The legal standard of proof that must be satisfied is: proof on a balance of probabilities. This means the person who made the statement claiming sexual abuse must be able to satisfy a judge or jury that it is more likely than not that the sexual abuse actually occurred.
Satisfying this legal standard of proof is not easy. There are rarely witnesses to a sexual assault, meaning it is usually one person’s word against another’s, the victim is often in a vulnerable state by virtue of age or other power imbalance, and the trauma of the events can contribute to incomplete or vague memories of what happened. When a claimed sexual assault is committed by one adult against another, arguments of consent, if not outright denial, will often be made and can throw into question the reliability and truthfulness of the alleged victim’s account of what happened.
The effect of factors like these, especially when combined, can be sufficient to defeat the defence of “truth” to a defamation claim, causing the alleged victim of sexual abuse to have recourse to other available defences.
It is important to appreciate, however, that not every detail that forms part of a defamatory statement has to be proven true. Minor inaccuracies will not defeat the defence of justification. But the defamatory statements must be shown to be substantially correct – i.e., the core of what has been alleged, or what has been described as the “sting” of each defamatory statement, must be justified – i.e., proven true.
(b) The Defense of Privilege
Another defence to a defamation suit is “privilege”. Privilege refers not to the statement itself, but rather to the occasion on which the statement was made. Specifically, the law recognizes that there are protected occasions when one can say damaging and even false things about another person without the repercussion of a successful lawsuit for defamation. This is because, as a society, we put a premium on free and open communication and sharing of information in certain circumstances.
There are two kinds of privilege defences available to those who make allegedly defamatory statements that may defeat defamation lawsuits – “absolute” and “qualified” privilege.
Where it applies, absolute privilege provides a victim of sexual abuse with a clear and unambiguous defence that operates something like an absolute immunity. Unlike qualified privilege, it cannot be defeated or lost because the statement was made with malice or an intent to hurt. However, the circumstances in which this powerful defence applies are limited. For example, it applies to statements made in the course of legal proceedings. Judges, lawyers and witnesses who testify about being sexually abused are protected from defamation claims by absolute privilege. To illustrate, this means statements made in court, including court documents like the Statement of Claim by which a sexual abuse plaintiff starts a lawsuit, are protected by absolute privilege.
Although it applies to a broader range of occasions, qualified privilege is less clear-cut and more dependent on the specific circumstances surrounding a defamatory statement. It is more akin to a limited immunity. Context is all-important.
To avail oneself of the defence of qualified privilege, the person who made the defamatory statement must be able to show, based on objective standards (i.e., what a reasonable person would accept, and not her own personal standards), that she had an interest or duty to make the statement and that the person to whom she made the statement had a corresponding duty or interest to receive or hear it. This is referred to as “reciprocity of duty and interest between publisher and publishee”.
Examples of when a survivor of sexual abuse has been found to have a legitimate interest in communicating information about her alleged abuser’s misconduct include when she was trying to protect or advance her own interests (e.g., obtain emotional or therapeutic support), or was seeking to protect or advance the interests of others (e.g., prevent abuse of others).
The defence of qualified privilege and whether or not it will apply has attracted a lot of attention by our courts, with variable results. Communications to parents and health care providers, such as therapists, have been found by courts to be protected by qualified privilege. Communications beyond this narrow circle, such as to more extended family members, close friends and co-workers have not always been so protected. In short, the wider the circle of communication, the greater the risk of being sued successfully for defamation.
Even where the defence of qualified privilege would otherwise apply, it can still be defeated if it is shown that the person making the defamatory statement was motivated by malice when making the statement. Malice is something the defamed person must prove in order to defeat a qualified privilege defence. This is because the law presumes, unless it is proven otherwise, that when qualified privilege attaches, the defamatory statements were made in good faith. It is therefore for the person who says he was defamed to establish it was otherwise.
Minimizing Risk – Points for Survivors of Sexual Abuse to Bear in Mind
- Speak with a lawyer for legal advice about your options and obligations as early as possible. There is no risk associated with speaking to a lawyer who is retained to provide advice.
- Speak with a health care professional for treatment and/or therapeutic support purposes. This person should have his or her own professional confidentiality obligations. Communications of this nature will generally be protected under the defence of qualified privilege.
- After obtaining legal advice and seeking professional health care assistance, make a considered decision about whom else, if anyone, to tell. Generally, it is best if you tell only those you are closest to and who are best able to support you (such as an immediate family member) and/or those you believe are most directly able to prevent others from being hurt, if that is a concern.
- If you feel you must communicate to non-professionals, then limit your communications to only what you need to convey and to what those receiving your communications really need to know. As the courts have said, “communicate appropriate information to appropriate people”. This will increase the chances of a successful defence to a defamation suit.
- If it is not necessary to identify the abuser by name or description sufficient for his or her identification, then do not do so. For example, if the main purpose of your communication is to speak about your feelings or the impact on you of the abuse, consider if it is really necessary for you to name or otherwise identify the person who hurt you.
- Avoid using electronic forms of communication, such as email or social media, when communicating about these sensitive matters, as these are forms of communication over which you can quickly lose control and that are long-lasting.
- Warn non-professionals whom you tell, such as family members, not to tell others, or at least to be very careful about what they say and to whom, as this will help protect not only you but also them from a successful defamation suit.
Elizabeth Grace is a civil sexual abuse lawyer in Toronto who has specialized in sexual assault matters for two decades. She is a partner of the law firm Lerners LLP.