The Crime of Speaking Out: How Defamation Law Fails Sexual Assault Survivors

By Ingrid Holmquist

Content Warning: This article contains mentions of sexual assault. 

Since the #MeToo movement took the internet by storm in 2017, social awareness surrounding the rights of sexual assault survivors has shot up. These conversations were particularly relevant in Amber Heard’s highly publicized defamation trial in 2022 [1]. While supporters of Johnny Depp harassed and mocked Heard online, legal experts watched worriedly, concerned that this may set a horrible precedent. And if the online abuse wasn’t enough, the court's ruling surely was: in June 2022, the jury found Heard liable for three counts of defamation and ordered her to pay $1 million to the man she accused of abusing her [2]. 

Defamation suits have historically been used as a tool to silence and intimidate survivors of assault. One notable example is Dr. Luke’s lawsuit of Kesha in 2014, which he filed after she publicly accused him of rape [3]. Similarly, Taylor Swift was also sued for defamation by David Mueller, whom she claimed sexually assaulted her while they took a photo together [4]. Unlike Amber Heard, however, neither of these women were found responsible for the charges brought against them. 

While these cases are important in understanding defamation law, we must acknowledge the legal differences that distinguish them from most others. Lawsuits against celebrities often seem to overshadow the experiences of ordinary victims– many of whom face more serious consequences and have fewer resources to support them. According to the National Women’s Law Center, the law makes it considerably more difficult to sue a public figure for defamation than a private figure [5]. Here, a public figure refers to someone who has voluntarily placed themselves in the public eye, while a private figure is someone who has not [6]. The legal standard to prove guilt for defamation when the plaintiff is a public figure, such as Depp, is actual malice, meaning that the accuser must have known that their statement was false.

For private figures, however, the standard for defamation is much lower. Ordinary people accused of assault must only prove negligence by their accuser. Negligence, in this case, is demonstrated if the accuser either was unaware that their statement was false or did not do their due diligence in verifying their claim prior to bringing it forth. Most states place the burden of proving defamation on the plaintiff [7]. However, their burden of proof exists at a much lower threshold when suing a private figure than a public figure. Instead of having to show that the defendant intentionally spread misinformation, they must only prove that they acted recklessly in their accusation.

When the only defamation cases the public hears about involve celebrities, ordinary victims are forgotten. These survivors are held to a higher standard in proving their claims and generally lack the financial resources of celebrity defendants. One such example is known as Jane Doe, a former Yale student and current defendant in a defamation lawsuit based on a rape allegation she made in 2015. At the time, she and the plaintiff, Saifullah Khan, were students at Yale. She claims that he raped her after a Halloween party, and reported the assault the next day to Sexual Harassment and Assault Response & Education at the university. Khan was eventually found not guilty by a criminal court in 2018 but was expelled following a Yale Title IX hearing in 2019. He went on to sue both Yale and Jane Doe for defamation, a case that is still going on today [8]. 

The main questions in Khan’s lawsuit stem from the controversy over whether Jane Doe’s statements in the Title IX hearing were privileged. Statements made in court, in political speeches, or to one’s spouse all fall under absolute privilege, meaning one can never be found liable for a statement made in one of these contexts. A university Title IX hearing, in cooperation with federal standards, will generally constitute a quasi-judicial context, and therefore, qualify for absolute privilege. However, at the time of the hearing, Obama-era Title IX protections were still in place [9]. Under such legislation, there was no requirement for the students to cross-examine each other. A Connecticut Court found that the case failed to meet quasi-judicial standards due to the lack of cross-examination [10]. This decision meant that Doe’s statements in the Title IX hearing did not fall under absolute privilege, meaning she could be found liable for her accusation. The court then decided that the statements made in a preliminary hearing were sufficient for a defamation case, as long as Khan could prove the defendant acted with actual malice [11]. 

Without the defense of privileged communication, victims have few routes to prove their innocence in a defamation suit. There are technical ways to defend oneself, such as the complaint passing the statute of limitations. However, regulations regarding statute of limitations may not always apply.  A strong defense for a defamation case is obviously truth; if an accuser can prove that the statement was true, it cannot be defamatory. Sexual assault cases are notoriously difficult to prove, especially without physical evidence, making this defense particularly burdensome.. Many universities are known to mishandle complaints of assault and police have historically failed to test or even recommend rape kits to survivors [12, 13]. The need to prove one’s claim of assault to avoid being found liable for defamation sends a harsh message to survivors: If you can’t prove what happened to you, don’t even bother speaking up about it. 

It is imperative that survivors of sexual assault feel safe to speak about what happened to them without facing the consequences of a defamation lawsuit. Even if they are not found responsible, which could very well happen depending on the judge and jury, they are still subject to public scrutiny and a long process full of legal fees and re-traumatization. Given the immense failures of the criminal justice system to support and believe survivors of assault, using their voices is one of the only ways they can feel empowered and begin to heal. Estimates suggest that only 30% of all sexual assaults are reported. Out of female college students, only 20% will report their assault.  For all sexual assault victims who did not report, 20% stated that it was because they feared retaliation [14]. The possibility of legal consequences, such as a defamation suit, is unquestionably encompassed in this fear of retaliation. 

The way in which defamation suits are handled only further exacerbate existing victim-perpetrator power dynamics, as victims are also subjected to invasive and personal questions on the witness stand. In Khan’s criminal trial, Doe was asked about her clothing, alcohol consumption, and “flirty texts” with the defendant [15]. None of these factors disprove rape, and all of them were intended to humiliate and degrade the victim publicly. 

Given this harsh reality, Title IX hearings on campus are one of the only avenues for college student survivors to seek justice for their assault. The ruling that accusations made in these proceedings are not privileged is a slap in the face to victims of sexual assault. Student survivors are essentially unable to seek any sort of justice through their university without the threat of a defamation lawsuit, which can last for years. In the interest of protecting victims and making college campuses safer for everyone, it is necessary that survivors not be targeted for any statements made in disciplinary proceedings on campus. 

Sexual assault survivors have been robbed of their choice, safety, and autonomy. The last thing the law should do is take away their voice. 
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The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

[1] Harvard Civil Rights-Civil Liberties Law Review. "How Defamation Is Used to Silence Survivors." Harvard Law Journals. https://journals.law.harvard.edu/crcl/how-defamation-is-used-to-silence-survivors/.
[2] Donnelly, Matt. "Amber Heard and Johnny Depp Settle Defamation Claims." Variety, December 19, 2022. https://variety.com/2022/film/news/amber-heard-johnny-depp-settle-defamation-claims-1235465134/.
[3] "Dr. Luke v. Kesha Sebert." Reporters Committee for Freedom of the Press. https://www.rcfp.org/kesha-dr-luke-settlement/.
[4] PBS NewsHour. "Will Taylor Swift's Sexual Assault Legal Victory Empower Others?" PBS, August 16, 2017. https://www.pbs.org/newshour/show/will-taylor-swifts-sexual-assault-legal-victory-empower-others.
[5] National Women’s Law Center. Survivors Speaking Out Toolkit. Washington, D.C.: NWLC, August 2023. https://nwlc.org/wp-content/uploads/2023/08/Survivors-Speaking-Out-Toolkit-PDF.pdf.
[6] Buckingham, Doolittle & Burroughs. "Defamation of Public Figure vs. Private Figure." https://www.bdblaw.com/defamation-of-public-figure-vs-private-figure/#:~
=The%20designation%20of%20public%20versus,of%20claims%20outside%20of%20defamation.
[7] Jacqueline A. Scott & Associates. "What Does a Person Have to Prove to Win a Slander or Libel Claim?" https://www.jacquelinescottlaw.com/frequently-asked-questions/what-does-a-person-have-to-prove-to-win-a-slander-or-libel-claim/.
[8] Berry, Isabella. "Former Yale Student Acquitted of Sexual Assault in 2018 Sues Accuser for Defamation." Yale Daily News, September 22, 2023. https://yaledailynews.com/blog/2023/09/22/former-yale-student-acquitted-of-sexual-assault-in-2018-sues-accuser-for-defamation/.
[9] Spencer, Kyle. "A Look at 12 Years of Title IX Policy: Obama, Trump, Biden." K12 Dive, September 19, 2023. https://www.k12dive.com/news/a-look-at-12-years-of-title-ix-policy-obama-trump-biden/698452/.
[10] Keefe, Kevin. "Rape, Defamation, and Title IX: Connecticut Supreme Court Holds Yale's Lack of Procedural Protections Allows Defamation Claims Against Complainant to Go Forward." Boston Lawyer Blog. https://www.bostonlawyerblog.com/rape-defamation-and-title-ix-connecticut-supreme-court-holds-yales-lack-of-procedural-protections-allows-defamation-claims-against-complainant-to-go-forward/.
[11] Khan v. Yale Univ. https://casetext.com/case/khan-v-yale-univ-2.
[12] Ballard Brief. "Sexual Violence Against Female College Students in the United States." https://ballardbrief.byu.edu/issue-briefs/sexual-violence-against-female-college-students-in-the-united-states#:~
=Universities%20often%20mishandle%20sexual%20assault,in%20the%20last%205%20years.
[13] Klein, Sarah. "Women All Over the Country Are Suing Police for Failing to Test Their Rape Kits." Mother Jones, October 18, 2019. https://www.motherjones.com/criminal-justice/2019/10/women-all-over-the-country-are-suing-police-for-failing-to-test-their-rape-kits/.
[14] Rape, Abuse & Incest National Network (RAINN). "Criminal Justice System Statistics." https://rainn.org/statistics/criminal-justice-system.
[15] Hamer, Emily. "Yale Rape Case: Defamation Lawsuit Filed Against Accuser." New York Times, September 17, 2023. https://www.nytimes.com/2023/09/17/us/yale-rape-case-defamation.html.