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, https://elibrary.law.psu.edu/cgi/viewcontent.cgi?article=1637&context=psilr. 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.