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Worried 红杏视频 Getting Sued for Reporting Sexual Abuse? Here Are Some Tips.

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Woman with hands on hips
Bruce Johnson,
Davis Wright Tremaine
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January 22, 2018

The #MeToo movement has drawn an outpouring of testimony by the victims of sexual harassment and sexual abuse. In response, there has been a surge in retaliatory defamation lawsuits by their abusers. Many lawyers say they've seen a spike in defamation lawsuits in recent years. And in the past two months, I have received more than a half-dozen calls from women who were threatened for telling their stories.

These threats are real, and are designed to force the victims back into silence. But there are many ways to minimize or limit these legal risks.

First, and foremost, if you鈥檙e telling the truth, you shouldn鈥檛 be sued for defamation. Truth is an absolute protection for American libel defendants since the historic case in 1735.

Yet judges and juries can get things wrong. It happens. Especially if the abuser is willing to lie to counter your testimony. So you may need to have solid legal expertise to defend yourself in court. Attorneys can be expensive, especially good ones. But you may already have the right to insurer-paid counsel simply because you own your home or rent an apartment. Homeowners鈥 and renters鈥 policies usually insure against libel claims, and will provide a defense. Call your broker and review your general liability insurance policies.

In addition to insurance, there are many practical ways to minimize your legal risks.

First, many states provide for special protections for communications made to government agencies. If your disclosure is to a state or local agency, including the police, it may be entitled to full or partial immunity under applicable law. In Washington State, for example, we have a that says: 鈥淎 person who communicates a complaint or information to any branch or agency of federal, state, or local government . . . is immune from civil liability for claims based upon the communication to the agency or organization regarding any matter reasonably of concern to that agency.鈥 In other words, you can鈥檛 be held liable for anything you report to a government agency. Other states may provide similar protections.

Second, to the extent that you discuss and cite information that is contained in a public record, such as a lawsuit or a police report, libel law generally recognizes what is called the 鈥渇air report鈥 privilege, which makes subsequent discussions of these public records subject to either an absolute or conditional immunity from civil liability.

Third, the person you communicate to may be protected by another privilege, called the 鈥渃ommon interest鈥 privilege. If you share your information with someone who has a common interest with you, such as your company鈥檚 human resources department, that information-sharing may be subject to potential immunity or, in many states, a requirement that the plaintiff prove that the defendant acted with 鈥渁ctual malice鈥 鈥 which is defined as knowing falsity or reckless disregard of the truth, with evidence of convincing clarity.

Fourth, that standard of fault varies depending on the plaintiff鈥檚 status. In the United States, public figures (Weinstein) and public officials (Trump) are required to prove 鈥渁ctual malice,鈥 but others, ordinary citizens, are required to prove that the false statement of fact was made negligently -- that the statement was disseminated without exercising ordinary care.

Finally, depending on your state, victims who speak out against sexual harassment may have the benefits of a strong law deterring abusive, retaliatory lawsuits, which are often called SLAPPs (鈥渟trategic lawsuits against public participation鈥). These lawsuits are used to silence and intimidate critics by burdening them with the cost of legal defense. allow someone being sued for defamation to move to strike the case because it involves speech on a matter of public concern. They also require plaintiffs to present evidence that they would prevail in a lawsuit. This can offer protections for #MeToo victims, including dismissals of cases early in the proceedings and the awarding attorneys鈥 fees for meritless cases.

So look at your options. Proceed with caution. But don鈥檛 be afraid to tell the truth.

Bruce Johnson, a partner in the Seattle office of Davis Wright Tremaine LLP, has defended defamation cases for 40 years. The views expressed in the article are the author's own and do not necessarily represent or reflect the views of the 红杏视频.

READ MORE IN OUR SERIES, "DISMANTLING SEXUAL HARASSMENT"

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