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, Bridges to Understanding.

A legal reason American women only out the rich and prominent

[Important Note: I do not practice law. Nor am I an expert on defamation. The following text is based on my understanding 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 out the rich and famous has to do with the law on defamation, which includes libel (writing) and slander (speech). Let’s say that Ann tells people that George groped her.

Now let’s say George denies Anne’s accusation and sues her for defamation. As I understand it, in the United Kingdom and former British colonies and Commonwealth areas, including the United States, there are several elements George must prove. Details may vary slightly from one jurisdiction to another. But one common element is that the defamatory (hurt George’s reputation) statement the defendant (Anne) made must be false.

The usual—often the only possible—way Anne can defend herself against George’s claims of defamation is to prove that her statement was true, that George did grope her. But most people don’t sexually assault others in front of witnesses. George didn’t. Anne can allege that he did, in fact, grope her. George can deny it. It’s her word against his. But if Anne made the statement, and it hurt George’s reputation, 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.

George also must prove Anne’s level of fault. As a general rule, George only has to prove that Anne was negligent in making the untrue defamatory statement.

However, in the United States, there is an exception to this general rule. The required level of fault varies depending on whether George is a “private person,” a “public official” or a “public figure.” If George is an accountant for a solo-practice dentist, and Anne is the oral hygienist, George is probably only a private person. He only has to show that Anne was negligent in making a false statement that harmed his reputation.

But if George is a public official, such as mayor, governor, legislator or cabinet member; or if George is a “public person,” such as a high profile actor, athlete or C-level corporate executive; then, George’s burden of proof is more difficult. He must show that Anne acted “with actual malice” in making a false defamatory statement. Actual malice is harder to prove than negligence. So a whistle blower might feel relatively safe in outing the mayor, actor, athlete, etc. in the U.S.

But now, let’s say George is the dentist’s accountant. Then, as if Anne hasn’t suffered enough from feelings of humiliation and dehumanization around the groping itself, now George can sue her for defamation and have a better chance of winning if Anne can’t prove he groped her. Even if Anne’s telling the truth, she’ll be blamed and humiliated all over again in the lawsuit, which will be of public record. Word will get around town. The suit might make the local news. And as for the money, it’s Anne who’ll end up paying George if he wins his defamation suit against her.

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 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. If a “private person” abuser is identified, he can more easily use the courts to victimize the woman all over again.

Again the special exception for public officials and public figures is unique to the United States. Thus, if George the athlete 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  figure or public person to sue for defamation—the suit will be on public record. The picture of George as a groper will remain in the minds of many people even if he should win his suit. If George is the dentist’s accountant, this picture may not spread beyond his own community. It might be forgotten in time.

But if George is the mayor or other public official, or if George is a Hollywood producer, C-level executive or other public figure, then suing Anne could very well get him 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 George 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 women who have survived sexual harassment or abuse is that it’s much more difficult for survivors to speak about such things than anyone who hasn’t experienced them can possibly realize. Read more about this in Chapters ___.

2 comments

  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.

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