This lawyer fights defamation lawsuits that could silence sexual assault victims

Editor’s note: The following story addresses the issue of sexual assault.

Victoria Burke remembers waking up at the hospital in December 2019, unsure of how she got there. The last memory that came to his mind was drinking with an old acquaintance.

“One minute I’m in this beautiful restaurant and the next minute I’m waking up in the emergency room from a violent coma and I don’t know how I got there,” Burke says. “It was absolutely terrifying.”

She finally pieced together what happened: This person brought her back to the apartment complex after she had been drinking. They stayed in his car for more than an hour until 911 was called. Paramedics arrived and found Burke incoherent, vomiting, her shirt askew and her breasts exposed. The acquaintance is no longer around.

Burke believes this person attacked him.

While telling this painful incident to his friend, who is also a lawyer, his friend gave a harsh warning: Do not mention this person’s name and do not publicly accuse him of assault.

“‘He might sue you for defamation,'” Burke recalled his friend saying.

Burke was shocked and angry.

His friend was right: In the years since the emergence of the #MeToo movement When women spoke openly about sexual assault and harassment by powerful men in an attempt to hold them accountable, many of those accused of wrongdoing filed defamation lawsuits against their accusers. Although some attorneys say the option allows wrongly accused people to clear their names, Burke and other attorneys say the lawsuits can scare victims into silence.

Singer Ke$ha, music producer Dr. Played out in public, high-profile cases like those of Luke and the actors Johnny Depp and Amber Heard.

But the scope 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 perspective, I see people all over the country from all walks of life and all kinds of industries facing these types of defamation charges as a form of retaliation,” Mondino says.

He says he has seen students and low-income service workers threatened with defamation lawsuits for speaking out. Even if accusers complain about the harassment to employers or law enforcement, events happened Mondino, where the defendant uses these statements to file a defamation lawsuit.

Burke, an attorney and professor at Southwestern Law School in Los Angeles, says he decided to put his legal skills to use once he learned this. and assault as motivation to protect victims of assault, abuse, and harassment from retaliatory defamation lawsuits.

Along with lawmakers in New Hampshire, New Jersey, Delaware and Oregon, Burke is trying to change state-level defamation laws to ensure they can continue to speak out against harassers.

Damian Dovarganes/AP

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The threat continues on the victims

Since you found out Tendency for defamation lawsuits to be filed against accusersBurke has drafted legislative language that would prohibit a person accused of sexual misconduct, abuse, harassment or domestic violence from filing a defamation lawsuit to silence or retaliate against the victim. This includes situations where the name of the alleged abuser is made public.

What Burke proposes is expansion anti-SLAPP of many states (strategic litigation versus public participation) laws. A SLAPP lawsuit, like a defamation lawsuit, is filed in retaliation against a victim, witness, whistleblower, or journalist for the purpose of intimidating or silencing them. Anti-SLAPP laws implied To ensure protection from these lawsuits, to prevent people from using the justice system as a tool to intimidate people and silence people and the press.

According to Burke, many states with anti-SLAPP laws do not explicitly protect victims of sexual assault, abuse, or discrimination; This leaves them open to libel lawsuits from attackers.

Advocacy groups, including the National Women’s Law Center and the National Network on Rape, Abuse and Incest, have worked on similar legislation in recent years to strengthen these laws to protect victims. These groups say they support Burke’s efforts and I believe Such laws strongly discourage abusers from pursuing their cases.

Mondino says this is a necessary change as defamation lawsuits are filed against victims who speak out it is prohibitively expensive, time-consuming and emotionally draining, and contributes to a silencing effect on all current and future victims.

Burke’s offer was accepted

Burke found success in his home state of California last October. Gov. Gavin Newsom signed an amendment to existing state law that raises the threshold for proving defamation when it relates to sexual assault or harassment, based on Burke’s proposal with some additional changes.

The person filing the lawsuit must now show that the person alleging sexual assault or harassment spoke in bad faith. This means making statements that are knowingly false or intended to cause harm.

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

Burke, Mondino and other advocates say these additional protections will help prevent retaliatory lawsuits aimed at silencing accusers.

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

And in Illinois, State Rep. Mary Beth Canty plans to introduce a version of Burke’s proposal at the upcoming General Assembly session.

“I’m a survivor myself, so I was a little excited when Victoria reached out to me,” says Canty. Canty introduced a version of Burke’s bill in 2023 and then again in 2024. HB 5452, the 2024 version that expands Burke’s proposal, was approved through committee hearings and was referred to the House Rules Committee in April. But time ran out as the Illinois State Legislature’s term expired in about a month.

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

Canty said he is committed to reintroducing the bill in the session that begins this month. He hopes to add an element that addresses possible retaliation against students at colleges and universities in Illinois. His HB 5452 sought to ensure that victims are not retaliated against for speaking up about assault, harassment or other harm in Title IX or college sexual misconduct cases.

Eric Rosenberg, an attorney who represents several students accused of assault, expressed concern about elements of such bills.

Rosenberg says he has “zero tolerance for sexual assault,” but since 2011, his Ohio-based firm Rosenberg & Ball has represented hundreds of students accused of sexual assault but found innocent of the allegations. Allowing individuals to file defamation lawsuits in the event of allegations of assault or harassment made against them gives those potentially wrongly accused a significant opportunity to clear their names, he says.

It says Rosenberg has “filed numerous defamation lawsuits across the country on behalf of wrongfully accused students,” and many have resulted in settlements.

“If you give someone blanket immunity for a false sexual assault allegation, what recourse is left for the defendant?” Rosenberg says of bills like Canty’s.

Canty says he also wants to make sure people are protected from dubious claims. Both he and Burke point to data showing that false reporting of attacks doesn’t happen often.

2010 research For example, it found that fake attack reports are relatively rare, ranging between 2% and 10% of the total.

Canty also says that under current law, people falsely accused of assault can clear their names. But he says it’s not currently possible to protect people who have been attacked and want to talk about their experiences.

“I know people will always want to point out false allegations and say that false allegations can have a very detrimental impact on a student’s future. However, the attack also has a detrimental effect on the student’s future. Canty, I think we need to be careful about handling both students.

In the short time she has worked to get her proposal passed, Burke has encountered many people who have come to her during meetings with lawmakers and other events to share their experiences of assault or harassment, but she has remained largely silent, even years after the attacks, and #MeToo.

“Most of these people have never reported it, but they will tell me,” Burke says. And he is reminded why he is on this path.

“I want people to be able to speak openly and tell me,” she says. “But I want people to feel safe no matter who they tell it to.”

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

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