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Do you think the answer would change whether they’re guilty or not? Do they first need to be declared guilty? How would you report it if the accusation itself is defamatory? The last few months have seen a rise in a public calling out of sexual assaulters and violators of bodily integrity. I should say alleged assaulters and violators because very few of them get their day in court to actually be declared guilty. This could be for a number of reasons: where victims lack faith in the justice system, where they don’t want to relive the experience, are unsure...
Do you think the answer would change whether they’re guilty or not? Do they first need to be declared guilty? How would you report it if the accusation itself is defamatory?

The last few months have seen a rise in a public calling out of sexual assaulters and violators of bodily integrity. I should say alleged assaulters and violators because very few of them get their day in court to actually be declared guilty.

This could be for a number of reasons: where victims lack faith in the justice system, where they don’t want to relive the experience, are unsure of the identity of the assaulter or even perhaps fabricate the story. Whatever the reason for opting to come forward through social media or other routes not integrated into the justice system, there lies a problem: defamation.

Any statement which would lead a reasonable person to reduce the reputation of a defamed person would be legally defamatory. This means that an accusation of sexual assault is a defamatory statement. Fortunately, there is a common defence, which is that if the statement is both true and in the public interest, the defamatory statement may be made with no legal claim by the defamed party.

Of course, this brings with it its own problems. Consider the situation where Candice alleges that Sam assaulted her. Sam can easily bring a defamation case against Candice and put the ball back in her court to compel Candice to prove not only its truth but that it was in the public interest to do so. In turn, Sam would be compelling Candice to relive her experience, which could be the very reason she didn’t opt to go to the police.

This is a rather powerful mechanism to disincentivise an accuser, though it would amount to claiming that they are lying and, on the internet, telling an alleged assault victim they are lying isn’t the most popular move one can play.

It does, however, bring up the question of legal burdens in different scenarios; namely, the difference between criminal and civil law. These two aspects of our legal framework have existed harmoniously for some time, but the question of defamation and sexual violence may spark some friction.

In criminal law, a prosecution team would have to prove that you committed a crime and satisfy a magistrate/judge to a point of “beyond reasonable doubt” that the crime (with all its factors) was committed by the accused. At that point they’re declared guilty. If I were to equate it to a number for illustrative (not legal) purposes, they would need to be 95% certain that the crime was committed.

In civil law, however, the burden is significantly lower and determined on a “balance of probabilities” which, using my non-legal-illustrative scale, would put the certainty at 51% in favour of the winning party.

The natural problem to stem from this would be what happens when one relies on another, but the burdens of proof are so different.

Consider that same above scenario. If Candice went to the police and reported Sam but there wasn’t enough evidence to prove to a judge that Sam did it “beyond reasonable doubt”, then Sam is declared “not guilty”. He’s of course not declared innocent either, but what if Candice wants to claim from Sam for pain and suffering? That’s a civil claim and thus subject to a lower burden of proof. Sam could theoretically be declared “not guilty” for sexually assaulting Candice but still be liable to pay her compensation for raping her and causing pain and suffering.

Worse still, Sam could theoretically also sue Candice in that scenario for defaming him as a sexual criminal, for which he was found not guilty, and potentially win.

How do we square this and what would be the ideal way to out a predator without legal repercussions?

The unfortunate answer is that, depending on the pockets of the person one is outing, one would always carry some legal risk.

However, the basic tenets remain the same: protecting oneself against defamation through the common defence of truth and public interest.

The latest four-part podcast I’ve listened to in the form of a live investigation gave the accused a false name until halfway through. Then once enough evidence was presented, he was identified, in such a way that it was done because of the fear of another possible victim being assaulted. That’s probably enough to defend against defamation.

But that one would have to defend against defamation at all, especially when the cards of burden are unevenly stacked, seems to defy ones sense of justice.

Ultimately we need to relook our defamation laws and consider if a shift there may contribute to better justice … but what about the rights of those who are innocent and accused?

Perhaps it’s yet another social ill that the law is powerless to adequately address.

Richard Chemaly is an entertainment attorney, radio broadcaster and lecturer of communication ethics

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