DEFAMATION CASES PART OF THE #METOO BACKLASH
(originally posted at AdvocateDaily.com) Defamation claims offer a possible route to reduce the stigma attached to those falsely accused of sexual misconduct, Kamloops litigation lawyer Matthew Ford tells AdvocateDaily.com.
Ford, partner with Cates Ford Soll & Epp LLP, says a recent spate of defamation claims launched by plaintiffs who say they were wrongly accused of sexual assaults could be characterized as part of a “backlash” against a societal swing. In the MeToo era, he says people may feel more comfortable speaking out against their attackers, while employers are also much quicker to act against accused persons, sometimes before a full investigation of the facts.
According to CBC News, the plaintiff in one case was suspended from his job and later fired before an independent investigator ruled the allegations by one of his accusers were unsubstantiated.
“The stigma of a sexual assault allegation, never mind a conviction, is one of the worst accusations that someone has to live with in our system — it endures,” Ford says. “What we are seeing with these claims is some pushback, particularly in cases where action has been taken on the strength of mere allegations.”
But he says the motivation for plaintiffs pursuing defamation cases is rarely financial.
“Defamation awards in B.C. are generally not very high. While you might get some costs, it’s never going to cover all of your legal fees,” Ford says. “It’s typically not about the money for these people. They are doing it to clear their names, and are going to great expense and effort to do it.”
Ford says plaintiffs who use libel laws solely to bully or silence their accusers should be condemned. So too should those who falsely allege they have been sexually assaulted.
“Defamation claims are certainly justified against that tiny number of people who are making up allegations for some type of gain because they harm not only the accused persons but the entire population of real victims and their ability to be believed,” he says.
Recent civil cases should be seen in the context of developments in criminal law over the last few decades, Ford says.
Back in the early 1980s, when “rape” was still in the Criminal Code, he says convictions could only be achieved if the Crown could prove sexual intercourse had occurred and the evidence could be corroborated by someone other than the victim.
Since then, the need for corroboration has been removed, and the offence is now called “sexual assault,” covering any number of sexually motivated crimes.
Ford says the new characterization of the crime much better reflects that these crimes are in fact crimes of violence, typically perpetrated against women.
Judges in the present day are also unable to rely on the doctrine of “recent complaint” to acquit defendants, and must reject rape myths suggesting there is a “right way” to react to a sexual assault, Ford says.
He adds that the increasing prevalence of “paper prelims” in B.C. Supreme Court, which prevents sexual assault victims from having to testify more than once in court, shows that the system has changed its approach to these cases.
“We’ve had a number of developments in the law that are trying to strike the appropriate balance between the presumption of innocence, on the one hand, but also to recognize the great difficulty that victims must go through to ultimately have their day in court,” Ford says.
“It’s a difficult balance to strike,” he says.
Despite all that, he says it remains difficult to secure a conviction on sexual assault charges.
“It almost always comes down to one person standing up and saying they were assaulted, and the other saying it didn’t happen or it was consensual. All you need is reasonable doubt to get an acquittal,” Ford explains. “I don’t know what the right balance is to make the justice system more favourable to victims without trampling on the accused’s presumption of innocence.”