Coming forward with sexual misconduct claims requires courage and conviction. The idea that your abuser may turn the tables and take you to court may be enough to threaten your confidence. But if your story is true, even a defamation lawsuit filed in response to your sexual misconduct claims can work in your favor and help you get the recovery you need.

#MeToo Abusers Use Defamation Lawsuits to Silence Accusers

Since 2017, the victims of sexual abuse and misconduct have taken to social media to tell their stories as part of the #MeToo movement. This social media hashtag and the media reports surrounding it have cast spotlights on men and women in positions of power who used their influence to coerce, or even force their victims into sexual positions. Across the country, these accused men and women have been removed from their board positions, been fired or forced to resign, and in some cases, faced criminal charges as a result of their sexual misconduct.

The victims of this sexual misconduct have filed charges with the New York Human Rights Commission, the Equal Employment Opportunity Commission (EEOC), and in state and federal court, seeking compensation for the emotional, financial, and in some cases physical damage caused by the sexual abuse. Some of those accused as part of the #MeToo movement have gone to court themselves, filing defamation lawsuits in response to their accusers’ sexual misconduct claims, putting these survivors on the defensive and forcing them to prove that their stories are true.

Defamation and Reputational Harm

Defamation is a civil lawsuit saying that the defendant’s false statements cause the plaintiff reputational harm and make it harder for the person to work or live in their community. In New York, when a plaintiff sues for libel (written defamation) or slander (spoken defamation), he or she must show:

• The defendant made a statement (aloud or in writing)
• That statement was false
• The statement was published or made to a third person without the privilege or authority to do so
• In doing so the defendant at least negligently ignored the falsity of the statement
• Which caused harm to the plaintiff

When the person has taken steps to become a public figure — including politicians, media personalities, and some business leaders — that person’s status makes it harder for them to prove the statements were made with “actual malice” and not just mistakenly false.

Even with their status as public figures, some of those accused have filed defamation claims against their past victims as a way to beat them to the courthouse, frame the issue in a way that hurts the survivor, and ideally intimidate them into withdrawing their claims. They will use any variation in the story or apparent gaps as a loophole to claim the statement was false, and their reputation was harmed as a result. To defend defamation lawsuits filed in response to sexual misconduct claims, you and your sexual abuse attorney should work to establish the truth of your claim and that yours was the reputation that was harmed.

Sexual Misconduct Survivors Turn Defamation Cases in Their Favor

Not every defamation claim hurts sexual misconduct survivors, though. Some victims of long-ago sexual assault have used this type of case as a last effort to bring their abusers to justice. Until New York lengthened the statute of limitations for filing sex abuse lawsuits, many victims of sexual misconduct came forward years after the alleged incidents, only to find they had missed their chance to prove their case.

However, when public disclosures of sexual misconduct resulted in personal attacks against survivors, those attacks often were grounds for their own defamation lawsuits. For example, when Ashley Judd came forward with accusations against Harvey Weinstein, her allegations were too old to file a lawsuit in California (where the acts occurred). But then, Director Peter Jackson said that he had removed her from a casting list for his now-famous “Lord of the Rings” films after Weinstein told him Judd was a “nightmare” to work with and should be avoided “at all costs.” Since this was the first Judd had learned of the false statements (slander), she was able to file a defamation lawsuit saying that Weinstein’s words had caused her reputational harm and damaged her career.

Defamation vs Retaliation Claims in Sexual Misconduct Cases

Judd’s defamation lawsuit also closely mirrors the retaliation claims many employees file against their employers after their retaliation claims result in the company firing the wrong person. Title VII and state anti-discrimination laws include protections against this kind of retaliation, giving employees a separate complaint any time a claim results in an “adverse employment action”.

But sexual misconduct isn’t limited to the workplace. When abusers use defamation lawsuits as a form of retaliation, the battle for the truth takes place in the courtroom, rather than the EEOC office. That’s when survivors and their attorneys need to be diligent and hold to their claims. By refusing to back down, these survivors can show the courts, and the public, the truth of their claims, turning the cases back against their abusers, and finally get the compensation they deserve.

At Eisenberg & Baum, LLP, we have a team of attorneys who know how to fight back against sex abuse and sexual harassment. Led by Attorney Adriana Alcalde, our sexual abuse attorneys will stand beside you when your abuser tries to use a defamation lawsuit to silence you. We’ll help you get the justice and compensation you deserve. Contact us today to schedule a free consultation.