California Governor Gavin Newsom signed a bill today to protect victims of sexual assault from facing frivolous defamation lawsuits. The new bill raises the threshold for proving defamation and mandates that individuals who lose a defamation case must cover the defendant’s legal expenses.
According to Victoria Burke, attorney at Scott+Scott, professor at Southwestern Law School and an instigator of the bill, defamation cases are on the rise. After her own experience with sexual assault, Burke took action to allow victims to speak up.
The bill, AB 933, is an amendment to existing defamation law and states, “A communication made by an individual, without malice, regarding an incident of sexual assault, harassment, or discrimination is privileged.” Thus, those charging defamation must prove malice or ill will.
Furthermore, should the victim prevail in the defamation lawsuit filed against them, the plaintiff will be responsible for covering all legal expenses. “A prevailing defendant in any defamation action brought against that defendant for making a communication that is privileged under this section shall be entitled to their reasonable attorney’s fees and costs for successfully defending themselves in the litigation, plus treble damages for any harm caused to them by the defamation action against them,” the bill states.
Burke became motivated to change the law after she was drugged and assaulted. When she told a friend, a defamation lawyer, about the incident, she was cautioned to be careful when speaking about her experience. “Don’t mention his name. Don’t mention anything that could identify him,” Burke said her attorney friend warned. “Oh, so I have to be silent?” she thought.
The incident compelled her to change the law to protect herself and other survivors. The bill Newsom signed today is partially the result of her tireless efforts. Using her legal expertise, she penned an initial version of the law and sent it to lawmakers in California.
Defamation cases often make headlines when the parties involved are celebrities. When Taylor Swift stated that DJ David Mueller grabbed her bottom after putting his hand under her skirt during a pre-concert photo opportunity, Mueller sued for defamation. Swift countersued for sexual assault and won. Pop star Kesha and music producer Dr. Luke settled a defamation lawsuit brought by Dr. Luke after Kesha made rape accusations against him.
However, defamation cases aren’t just brought against the rich and famous. Those without the resources to pay attorney fees are particularly vulnerable. Attorney’s fees can be steep, and Burke says these charges could range from $20,000 to hundreds of thousands of dollars. She believes that the possibility of paying for the defendant’s legal expenses if the defendant wins might discourage some individuals from pursuing defamation lawsuits.
In addition, individuals accused of defamation may find it easier to secure legal representation for their defense. “Attorneys will be incentivized, knowing they can recover attorney fees, to take cases of people who can’t pay upfront,” she explains.
Burke explains why she believes defamation cases have increased: “I think people become empowered when they see certain famous people doing it. ‘Oh, I’ll do that, too. That sounds good.’ And it becomes a tool in their arsenal.” President Trump drew increased attention to this strategy by personally engaging in over 14 defamation cases (not related to sexual assault) and making numerous threats related to defamation.
Indeed, Law.com has labeled the present time “The Golden Age of Defamation.” In New York, a woman faced a defamation suit for naming someone in a sexual assault police report. And last month, a Yale student expelled from the university after allegations of sexual assault was cleared to proceed with defamation charges against his accuser.
Burke says that she’s often asked whether changing the defamation laws opens the door to false allegations. “Some of the concerns have been about reputational damage. And that’s why we wanted to make sure that the bill had the malice element built in, so you could still go forward if you’re falsely accused.” Nonetheless, she points out that false accusations of sexual assault are rare. The prevalence of false reporting is estimated to be between 2% and 10%.
Starting January 1, 2024, in California, when the new bill takes effect, it will become more difficult and more expensive to bring baseless defamation suits in cases of sexual assault. Anti-sexual violence organization RAINN celebrated the bill’s passing on Instagram, “AB 933 just passed and protects survivors from defamation action, as well as ensures financial security in the event the defamation claim is a retaliatory action from the abuser.”
Burke doesn’t plan to stop with California. She is in talks with Illinois, New York and Colorado lawmakers and wants victims to feel free to speak their truth throughout the country. “The victims deserve to walk in the light and feel safe in the open telling what happened to them without fears of retribution and financial devastation that a defamation lawsuit could bring,” she told lawmakers in California.
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