Editor’s note: The following story deals with the topic of sexual assault.

Victoria Burke remembers waking up in the hospital in December 2019, not knowing how she got there. The last memory she had was of having a drink with an old acquaintance.

“One minute I’m in this cute restaurant, and the next minute I’m waking up, coming out of a severe coma in the emergency room, not knowing how I got there,” Burke says. “It was absolutely terrifying.”

She finally pieced together what happened: After drinking, this individual took her back to her apartment complex. 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 knowledge didn’t stick around.

Burke believes this person attacked her.

When recounting this painful event to a friend, who is also a lawyer, her friend received a stern warning: do not mention this person’s name or publicly accuse them of assault.

“He could sue you for defamation,” Burke says she remembers what her friend said.

Burke was shocked – and angry.

Her friend was right:
In the years since the #MeToo movement took off — when women publicly denounced sexual assault and harassment by powerful men in an effort to hold them accountable — many people accused of misconduct filed defamation lawsuits against their accusers. Although some lawyers say this option gives those wrongly accused a way to clear their names, Burke and other advocates say the lawsuits can intimidate victims into silence.

This plays out in high-profile public affairs like that of singer Ke$ha and music producer Dr. Luke and 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 side, people from all walks of life and from all kinds of industries in all parts of the country are facing these kinds of retaliatory defamation charges,” Mondino says.

She says she sees low-income students and service workers threatened with defamation suits for speaking out. Even when accusers file harassment complaints with employers or law enforcement,
there have been incidents where the accused uses these statements to file defamation claims, Mondino says.

Since learning this, Burke, an attorney and professor at Southwestern Law School in Los Angeles, says she has decided to use her legal skills. and his aggression as motivation to protect victims of assault, abuse and harassment from retaliatory defamation suits.

Alongside lawmakers in New Hampshire, New Jersey, Delaware and Oregon, Burke is pushing to change state-level defamation laws to ensure they can continue to denounce their attackers.

Damian Dovarganes / AP

P.A.

The threat weighs on the victims

Since I learned of the existence of
trend of defamation suits against accusersBurke authored legislation that would prohibit a person accused of sexual misconduct, abuse, harassment or domestic violence from using a defamation suit to silence or retaliate against a victim. This includes cases where the alleged abuser is publicly named.

What Burke is proposing is an expansion
of the anti-SLAPP of many states (strategic lawsuit against public participation). A SLAPP suit, such as a defamation action, is brought in retaliation against a victim, witness, whistleblower or journalist with the aim of intimidating or silencing them. Anti-SLAPP Laws
are intended to provide protection against these prosecutions and prevent people from using the justice system as a means of intimidation and to silence the public and the press.

Many states with anti-SLAPP laws do not expressly protect victims of sexual assault, abuse or discrimination, leaving them vulnerable to defamation lawsuits from their abusers, 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 to strengthen these laws to protect victims in recent years. These groups say they support
Burke’s Efforts and believe such laws strongly discourage attackers from pursuing prosecution.

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, and contribute to the silencing of all victims, present and future.

Burke’s proposal is accepted

Burke found success last October in his home state of California. Gov. Gavin Newsom signed an amendment — based on the proposal developed by Burke with some additional modifications — to existing state law that raised the threshold for proving defamation when related to assault or sexual harassment.

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

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

According to Burke, Mondino and other advocates, these additional protections will help prevent retaliatory lawsuits intended to silence accusers.

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

And in Illinois, state Rep. Mary Beth Canty plans to offer a version of Burke’s proposal when the General Assembly next meets.

“I’m a survivor myself, and so it was a little weird when Victoria contacted me,” Canty says. In 2023 and again in 2024, Canty introduced a version of Burke’s bill. The 2024 version, HB 5452, which expanded on Burke’s proposal, was submitted for committee hearings.
and was referred to the House Rules Committee in April. But time ran out as 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 his efforts.

Canty says she remains committed to reintroducing the bill in the session scheduled to begin this month. She hopes to include an item addressing potential retaliation against students at Illinois colleges and universities. His HB 5452 aimed to ensure that victims do not face retaliation under Title IX or in sexual misconduct cases at their colleges for reporting assault, harassment or other harm.

Eric Rosenberg, an attorney who has represented many students accused of assault, said he is concerned about some elements of these types of bills.

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

Rosenberg has “filed numerous defamation suits across the country on behalf of falsely accused students,” many of which resulted in out-of-court settlements, he says.

Of bills like Canty’s, Rosenberg says, “If you were to give blanket immunity to someone for a false allegation of sexual assault, what recourse would the accused have left?” »

Canty says she also wants to make sure people are protected from questionable claims. She and Burke both point to data that indicates false reports of assault don’t happen often.

Research from 2010 found, for example, that false reports of assault were a relatively rare phenomenon, ranging from 2 to 10 percent of the total.

Canty also says that under current laws, people falsely accused of assault can clear their names. But, she says, there is currently no way to protect people who have been assaulted and want to speak out about their experiences.

“I know people will always want to point out false statements and say that false statements can have a very detrimental impact on a student’s future. But an assault also has a detrimental impact on a student’s future. And I think we need to be careful to take care of both students, Canty said.

Since Burke worked to pass her proposal, she has encountered many people at meetings with lawmakers and other events who come to her to share their own experiences with assault or harassment, but have largely remained silent even years after their attacks and # Me too.

“A lot of these people have never reported it, but they will tell me,” Burke says. And we remind her why she is going down this path.

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

If you or someone you know has been a victim of sexual violence, you can get free, confidential support by calling
National Sexual Assault Hotline at 800-656-HOPE.

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