Book Sneak Peek + More “Me Too” Answers

Book Sneak Peek + More “Me Too” Answers

This post is a two-in-one! It gives you some of the additional info I promised, in “Me Too: Questions and analogies.” It addresses the question, “If the Me Too women aren’t in it for money, why do they only out rich men?” Plus, it’s in the form of a draft (which means it might change) from my new book in progress. The revised working title is Talking about Touchy Topics.

A legal reason American women only the rich and prominent

[Important Note: I do not practice law. I am not an expert on defamation. The following text passage is based on my interpretation of the article “Double Standard: A Comparison of British and American Defamation Law,” Penn State International Law Review, My interpretation is not a legal opinion and should not be considered as such. Anyone who becomes involved in any kind of lawsuit, or is thinking about doing so, should seek advice from a practicing attorney.] 

One reason American women may feel safer in outing the rich and famous has to do with the law on defamation, which includes libel (writing) and slander (speech). Let’s say that Anne posts on her blog (or even just tells people) that a man groped her. She also identifies him. For now, let’s call him Andy.

Now let’s say that Andy denies Anne’s accusation and sues her for defamation. In the United Kingdom and many current or former colonies and commonwealth areas, there are several elements Andy must prove. Details may vary from one jurisdiction to another, but in all these jurisdictions, the basic elements are that: (1) Anne negligently said or wrote (2) a false statement about Andy (3) where third parties could see or hear it, and (4) the statement hurt Andy’s reputation.

The usual—often the only possible—way Anne can defend herself against Andy’s claim of defamation is to prove that he didn’t meet element (2), in other words, her statement was not false, but rather, true; Andy did, in fact, grope her. But most people don’t sexually assault others in front of witnesses. Andy didn’t. Anne can allege that he groped her. Andy can deny it. It’s her word against his. But Anne made the statement, and it hurt Andy’s reputation. Now she’s the one who’s called upon to prove that her assertion is true, which she can’t do because there were no witnesses.

For element (1), Andy must prove Anne’s level of fault, that she was negligent in making the false, defamatory statement. Negligence is not a very heavy burden of proof.

However, in the United States, there is an exception to the general rule about level of fault. When a person sues another for defamation, the required level of fault varies depending on whether the defendant is a “private person,” a “public official” or a “public figure.”

Now let’s say Andy is an accountant for a solo-practice dentist, and Anne is the oral hygienist. Andy is only a private person. He can go by the general rule; he only has to show that Anne was negligent in publicly making a false statement that harmed his reputation.

But now let’s say that, instead of Andy the accountant, the man Anne accused of groping her is the Manfred the mayor. As a public official, Manfred falls within the exception to the general rule under U. S. law. His burden of proof is more difficult. Instead of merely proving that Anne was negligent, Manfred must show that Anne acted “with actual malice” in publicly making a false defamatory statement. The same is true if Anne’s groper is a “public figure,” such as Fred the famous football star, Howard the Hollywood producer or Cecil the high-profile corporate executive. Just like public officials such as Manfred the mayor, public figures such as Fred, Howard and Cecil, must prove actual malice to make out a case for defamation.

Actual malice is harder to prove than negligence. So a whistle blower like Anne might feel relatively safe in outing the mayor, the athlete, the producer or the CEO in the U.S. if any of them groped her.

Now let’s get back to Andy the dentist’s accountant, a private person. He doesn’t have to prove actual malice. He only has to prove that Anne was negligent. Then, as if Anne hasn’t suffered enough from feelings of humiliation and dehumanization around the groping itself, Andy can now sue her for defamation and have a better chance of winning if Anne can’t prove he groped her. And as for any money, if Andy does win, it’s Anne who’ll end up paying him.

Even if Anne’s telling the truth, indeed even if she wins the suit, she’ll be blamed and humiliated all over again in the course of the trial, a transcript of which will be of public record. Word will get around town. The suit might make the local news. And even if the court finds that Andy really did grope Anne, that does not necessarily mean that she can recover her attorney fees from Andy. [Check]

In the book The Courage to Heal: A Guide for Women Survivors of Child Sexual Abuse by Ellen Bass and Laura Davis, many women tell their stories of incestuous abuse. In a number of these stories there is a note that names are withheld or changed for legal reasons. As I understand it, the legal reasons are that the women’s abusers were not public officials or public figures, but rather, private persons. There were no witnesses to the abuse. If a “private person” abuser is identified, he can turn around and use the courts to victimize the woman in a new and different way.

Again, the special exception for public officials and public figures is unique to the United States. Thus, if Manfred the mayor, Fred the football player, Howard the Hollywood producer or Cecil the CEO can find jurisdiction in the United Kingdom, he might still make Anne pay for outing him if she can’t prove he really did grope her.

A pragmatic reason for only outing the rich and prominent

There are practical disincentives, in any jurisdiction, for a pubic  official or public figure to sue for defamation—the suit will be on public record. And such a suit is much more likely to be reported by the press and media and splashed all over the internet precisely because there is a public official or public figure involved. The picture of a public official or public figure as a groper or rapist will remain in the minds of many people even if he should win his suit. Look how many people still believe that O. J. Simpson murdered his wife, even thought he was acquitted. Suing Anne could very well get Manfred, Fred, Howard or Cecil worse press, more widely disseminated, than he got as a result of Anne’s original accusation. So he might be well advised not to sue for defamation.

However, the practical disincentives for a public official or public figure to sue will not guarantee Anne’s safety. We only have to browse through a newspaper to see that public officials and public figures often do things—unnecessary things—that get them bad press, widely disseminated.

Another reason to believe sexual harassment and abuse victims is that it’s much more difficult for survivors to speak about sexual harassment or abuse than anyone who hasn’t experienced such things can possibly realize. I’ve written more about this in Chapters ___.

In order to understand these and other chapters, it’s time to look at some little-known facts about how our human minds operate, how they adopt beliefs and form opinions. These facts will not only help you grasp the full impact of subsequent chapters about the way women and men, respectively, experience the world, they will also equip you to resist the pitches of marketers, ideologues and con artists.


  1. John Bockelman

    Very well-written piece, Margaret. It made me do some soul-searching. It made me ask myself if I ever sexually anyone. No. The girlfriends I had were respectable and we had good times. I remember in the 90s, there was an attractive married woman I worked with occasionally who had a habit of standing too close when I interacted with her. She’d get right up into my body space and her face would be just a couple of inches away from mine. It made me uncomfortable, but I was polite and professional with her. One day she came in and asked me to help her find something in the supply room, so I went in there to help her find it. During the minute or so we were in that room, she assumed every provocative position imaginable with me under the guise of looking for a box of paper clips (which were right there in front of her), and I was able to get out of there without touching her. I dodged quite a few very suggestive moves. If I hadn’t known better, I would have closed the door and accepted her offer. After that non-incident, she never came on to me again. When she was laid off about a year later, she sued her boss for sexual harassment. He denied it. The company offered her $150,000 to drop the suit which she immediately accepted and she was never heard from again. I know that far from all instances of sexual assault or harassment are anything like that, but that was my non-experience in that regard. I just knew that in the workplace, it was strictly business and nothing else. No touchy-feely. There were a few marriages there including mine, but there were also a few scandals. So now that I’ve said I never did anything wrong, watch somebody come forward and accuse me of it. I’m just glad I retired 7 years and I don’t have to deal with stuff like that.

    I have female friends who were sexually assaulted and harassed, and I trust that what they say are facts. I don’t know if they brought any of what happened to them to light, but they told me and I’d vouch for their character if I was ever asked to. Best to All, JB

    • Thank you, John. I copied your comment and put it in my file of material I want to refer back to as I continue drafting the new book.
      If you have friends who told you about assault and harassment, it speaks well of you. They trusted you with things that I can tell you, from my own experience, are very hard to talk about. I still haven’t decided how much, if any, of my own experience to reveal in the book. One of many hesitations is thinking about how distressing those details would be to my relatives, especially to my brother and nephews. But I definitely intend to discuss why it’s hard.

  2. This is an interesting read from a perspective I had not previously considered.

    It leaves me with a few questions which may, of course, be answered in your book.

    The first is do we know that powerful men are the ones most accused, or are those simply the ones we hear the most about? It’s a bit of a difficult question to answer outside of digging into police reports. I assume there is some corollary evidence from college campuses that was widely reported, but I’m not sure how applicable that would be.

    The second, and potentially more complex, is what does access to the legal system look like in these situations? Certainly if all a victim is doing is talking to the press, it is incumbent on the accused to answer however they see most fitting (ignore, deny, or fight in court). For a claim that seeks restitution, though, it seems things change. A connected or powerful person may happily settle a claim out of court for the reasons you identified. If the claim actually makes it to court, though, I assume the powerful/wealthy/connected would have significantly greater resources with which to make the accuser’s life miserable and/or disprove their story. I concur with much of your post above, but I’m having difficulty resolving this tension.

    Just my thoughts and questions, and I hope not out of place. Again, good read and interesting perspective!

    • Thanks, Ian, for another thoughtful comment. You are quite correct that the passage of the book I quoted in this blog post is only a partial answer to the question, “If the Me Too whistleblowers aren’t in it for the money, why do they only out the rich and famous?” I’m addressing this question, not because I wish to state as a fact that the whistle blowers only out the rich and famous, but rather, because I’ve heard a number of people ask questions or make statements that show they believe only the rich and famous have been outed. Even if we assume for the sake of discussion that the whistle blowers only outed the rich and famous, there are legitimate reasons, other than financial gain, why they might do so. There are reasons for believing at least a majority of the whistle blowers are telling the truth.
      My first answers appeared in an earlier post, “Me Too: Questions and Analogies.” Then, in this post, I gave additional answers. As you anticipate, I will be giving more in subsequent chapters.
      As it happens, I do believe that most, if not all, those accused as part of the Me Too movement, were public officials or public figures, in other words, wealthy and/or prominent. If we expand our focus beyond Me Too to total numbers of incidents of sexual mistreatment in the workplace (incidents occurred, not incidents reported), I certainly believe that there are many more private person offenders, if for no other reasons than: (1) there are a lot more private persons in the world than there are public officials and public figures; and (2) this kind of behavior spans all kinds of demographic groups and workplaces.
      As for your second point, I agree with everything you say. If an accuser is only talking to the press, the accused has more options than if the accuser is seeking legal redress. In the latter case, the accused might, as you say, be happy to settle out of court. And it is true that, whether the accuser files suit and the accused counterclaims for defamation, or the accuser only speaks out and the accused sues her for defamation, the wealthy and prominent person certainly has more resources to hire the best attorneys, experts etc. and to find ways to make the abuse survivor’s life miserable, using the legal system as a tool. For example, the accused abuser can deluge the accuser with onerous requests for production of documents, multiple depositions, and such like, that he can afford to pay lawyers to pursue, but she cannot.
      What I’m not sure I understand is which “tension” you refer to. I believe that private persons have less access to the legal system than public officials and figures. But maybe the point is that, as between the victims/survivors, on the one hand, and the alleged perpetrator’s, on the other hand, the latter group has more resources to pursue legal action.
      I want very much to understand your question. I would suggest that I practice what I preach, or rather teach, and not try to discuss such a complex matter in writing. I invite you to email me and set up a time when we can talk on the phone or in person. Your views are important to me, not just with respect to this one blog post, but even more so, as they offer valuable feedback that can help me clarify my book prior to publication.
      Thanks for commenting, and I look forward to hearing from you.

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