Defamation Lawsuits: Another Tactic to Silence Survivors

Too often, perpetrators of sexual violence use the courts to punish survivors for speaking out about abuse—further victimizing those who choose to come forward.

defamation-lawsuit-sexual-assault-rape-me-too
The March Against Rape Culture and Gender Inequality in March 2012 in Boston. (Chase Carter / Flickr)

The decision to speak publicly about one’s own experience of sexual violence or harrassment is personal and often complicated. Due to a culture of stigmatization and shame, fueled by deficient laws and a criminal justice system that rarely takes victims of sexual abuse seriously, survivors are often reluctant to come forward with their experiences. Additionally, if and when survivors speak out, they are frequently silenced by the same person who threatens their safety or the safety of their loved ones.

In short, society has never made it easy for women and girls to safely report or share their experiences of sexual violence if they choose to do so. The international women’s rights organization I work for, Equality Now, has noticed a worrying trend that has further raised the stakes for survivors who choose to speak out: the weaponization of defamation lawsuits.

Lawsuits and Litigation as Means to Silence and Retaliate Against Survivors

Equality Now has witnessed a global rise in defamation lawsuits used to retaliate against and silence women who speak out denouncing gender-based violence—including victims and survivors who speak out about their own abuse. Examples of this can be seen all around the world, including the United States, India, Georgia, the Netherlands, Kazakhstan, Russia and France.

We have followed these cases and, in each instance, the person accused of sexual violence attempts to use the courts to punish the survivor for having spoken out about the abuse she allegedly experienced, even, in some cases, after an official confirmation of the abuse has been made.

It is a tactic meant to intimidate, discredit and silence victims and future victims of sexual violence. It is also a violation of international human rights law.

Survivors Have the Right to Speak Out About Their Experiences

When sexual violence survivors speak out, their right to speech is protected by law and must continue to be protected in practice. Survivors have a right to share their stories even when their public expressions offend, shock, disturb or disclose aspects of someone’s private life (a ruling that has been held by international human rights courts) and their experiences are a matter of public interest that can help fundamentally change the social discourse around sexual violence.

Upholding survivors’ right to freedom of expression is fundamental to protecting the rights of women, especially the right to live free from violence, and is essential for the prevention of sexual violence.

Defamation Lawsuits That Aim to Silence Survivors or Retaliate Against Them Are a Form of GBV

A predominant characteristic of gender-based violence (GBV) is the unequal power differential that exists between the offender and the survivor and it is this very same power differential that is exploited in lawsuits that attempt to silence or discredit the survivor. In a report on online violence against women and girls, then-U.N. special rapporteur on violence against women Dubravka Šimonović called the act of threatening survivors with legal proceedings in an attempt to prevent them from reporting their situation, a form of GBV in and of itself.  Šimonović cautioned the use of defamation lawsuits “may form part of a pattern of domestic violence and abuse.”

defamation-lawsuit-sexual-assault-rape-me-too
A rally in support of assault survivors. Figures from the U.S. Bureau of Justice Statistics suggest only 35 percent of all sexual assaults in the United States are even reported to the police. (Austin Monitor / Creative Commons)

In the 2021 report on the promotion and protection of the right to freedom of opinion and expression, U.N. special rapporteur Irene Khan says the perverse use of defamation lawsuits in the #MeToo era is “weaponizing the justice system to silence women … while also undermining free speech.”

Thankfully, courts around the world also seem to be recognizing the inappropriate and dangerous use of defamation lawsuits as retaliation. This year in New York (Sagaille v. Carrega), an appellate court frankly admitted that “sexual assaults remain vastly under reported, primarily due to victims’ fear of retaliation. It does not escape [the Court] that defamation suits like the instant one may constitute a form of retaliation against those with the courage to speak out.”

In a high-profile #MeToo case in France (Muller c/ Brion), a court of appeals found that the survivor was in her right to denounce physical and verbal abuse that undermines the dignity of women and, a conviction of defamation, even if only civil, would be a disproportionate interference with the freedom of expression and would likely have a broader deterrent effect on the exercise of this freedom for survivors. The case sparked a viral hashtag: #BalanceTonPorc, or in English, “denounce your pig.”

In its recent landmark defamation case, the Delhi High Court of India reminded us that the right to freedom of expression is inherently linked to a woman’s right to live a GBV-free life, and when survivors speak out, it is a form of self defense, of themselves and of others. The judge in the case said “sexual abuse, if committed against [a] woman, takes away her dignity and her self confidence” and when the woman speaks out about her experience and in turn makes an “attack on the character of [the] sex-abuser or offender,” the woman’s expression is “self defense after the mental trauma suffered by the victim regarding the shame attached with the crime committed against her.”

It is critical to recognize that the use of defamation lawsuits to restrict or prevent women from publicly sharing their experiences of violence and discrimination creates an additional barrier to accessing justice and creates a chilling effect for future victims. When survivors are discouraged from speaking out about their experiences, restricted in their expression of it, or discredited when they do come forward, violence against women persists and perpetrators enjoy impunity.

To advocate against and combat violence against women, we must uplift and protect the voices of survivors and actively monitor and stop the weaponizing of defamation lawsuits.

If you found this article helpful, please consider supporting our independent reporting and truth-telling for as little as $5 per month.

Up next:

About

Jorie Dugan is a legal advisor for Equality Now based in New York City where she works on ending sexual violence. Dugan is a licensed lawyer in New York with public defense experience in the criminal justice system, child welfare system and anti-human trafficking. Additionally she has worked for human rights NGOs in Asia, Africa and North America to address gender equality and combat gender based violence.