Sexual Assault Accusers Can Be Sued for Defamation. This Will Discourage Survivors from Coming Forward.

A ruling allowing a student accused of sexual assault to sue his accuser could impact how schools conduct future Title IX proceedings.

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A group of Pace University students hold a rally against sexual violence after walking out of their classes on April 19, 2018, in New York City. The action was organized by the student group ‘PaceUEndRape,’ which aims to promote a safe campus environment for all students. (Drew Angerer / Getty Images)

The Court of Appeals for the Second Circuit has allowed Saifullah Khan, a student accused of sexual assault, to sue his accuser for defamation, relying on a Connecticut Supreme Court opinion finding that the accuser was not entitled to absolute immunity for statements she made during a Title IX proceeding. 

This decision will have a chilling effect on sexual assault survivors’ willingness to come forward, as they are now vulnerable to defamation and other civil suits, which are increasingly used to silence and intimidate victims. But the ruling also could impact how schools conduct future Title IX proceedings, and influence proposed new Title IX regulations, which the Biden administration has been working on since 2020.

The Khan Case

Whether the defamation case in Saifullah Khan v. Yale et al. could move forward turned on whether the proceedings conducted at Yale University were in accordance with Title IX—a federal law prohibiting sex discrimination in education programs and activities that receive federal financial assistance, qualified as “quasi-judicial.” 

The case stemmed from a 2015 sexual assault complaint against Khan. Khan was found not guilty in a criminal trial, during which his lawyer cross-examined the accuser, identified by law only as Jane Doe, challenging her about her skimpy dress and excessive alcohol consumption.

Yale’s University-Wide Committee on Sexual Misconduct undertook a Title IX review of the incident in 2018 after other allegations emerged against Khan and before the Trump administration issued the current federal Title IX regulations. The Yale Committee’s investigation followed Obama-era guidance, allowing the accuser to give a statement via teleconference and not subjecting her to cross-examination. Khan was expelled in January 2019 after the panel found that a preponderance of the evidence supported the accuser’s claim, a lesser standard than the criminal “beyond a reasonable doubt” standard of guilt.

In 2019, Khan sued his accuser for defamation based on statements made during the Yale proceeding. Doe’s lawyer argued that she had absolute immunity for those statements. Still, the Connecticut Supreme Court ruled unanimously in June 2023 that she was not immune from lawsuits because the Yale hearing lacked sufficient due process safeguards to make it quasi-judicial, such as putting the accuser under oath, allowing cross-examination, presentation of witnesses, and meaningful assistance of counsel; and providing an adequate record for appeal. The accuser could still be entitled to qualified immunity but must undergo a defamation trial to prove that her statements were not malicious.

The ruling technically only impacts Connecticut cases, but other courts will look to adopt its reasoning. A Colorado Court of Appeals in Gonzalez v. Hushen used the case to find that a Title IX proceeding was not quasi-judicial, as it did not include procedural safeguards that allowed “for adversarial presentation and testing of the evidentiary facts.”

Those hearings were held before Trump’s Department of Education, under Betsy DeVos, issued revised Title IX regulations in May 2020, which required some of the procedural safeguards identified by the Connecticut court while placing more significant burdens on the accuser and narrowing the scope of the rules.

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Attorney Wendy Murphy, center, and a group of other women protest the Trump administration’s rollback of sexual assault rules in Title IX outside of Moakley Federal Courthouse in Boston on Oct. 19, 2017. Earlier that day, activists had filed the nation’s first lawsuit against Betsy DeVos and the Department of Education for the change. (Jessica Rinaldi / The Boston Globe via Getty Images)

In a June 2023 Pennsylvania case, a magistrate judge found that a Title IX hearing that had taken place after the rule changes featured a full enough range of procedural rights to make it quasi-judicial—meaning that the Trump-era rules, which are more hostile to accusers, could protect them from defamation suits.

Defamation and Other Civil Suits Against Accusers

The Khan ruling will embolden defendants to file defamation and other lawsuits, which are increasingly used to retaliate against and silence women. This movement has been spurred on by Johnny Depp’s successful defamation suit against Amber Heard based on an article she authored identifying herself as a domestic abuse survivor, even though Depp lost a United Kingdom libel suit after a judge found that Heard’s abuse allegations were credible and substantially true

It is not only survivors who are vulnerable to lawsuits—Stephen Elliott, named in the crowdsourced document listing sexual misconduct allegations against media men, received a six-figure settlement after suing the document’s creator, Moira Donegan.

Tools for Survivors

To combat the trend of using defamation and other tort laws against those who speak up about sexual abuse, a group of advocacy organizations recently put out a toolkit to help sexual assault survivors understand their rights—and the risks of speaking out. The Survivors Speaking Out Toolkit was released in August 2023 by the National Women’s Law Center, Know Your IX, Harvard Law School’s Cyberlaw Clinic, and Vanderbilt University Law School’s First Amendment Clinic. It offers practical guidance to help sexual assault survivors make an informed decision about how and whether to speak out and provides information regarding how to protect themselves from harm, including how to respond to a defamation lawsuit.

Survivors are also taking a page from the same playbook, using defamation suits themselves against abusers. Most prominently, E. Jean Carroll, in September 2023, successfully sued Donald Trump for defamation after he called her rape allegations against him a hoax.

Biden Administration’s New Title IX Rules

The Khan ruling has broader implications for how educational institutions will review Title IX cases and presents a Catch-22 for the Biden administration, which has been stalling on a campaign promise to undo some of the harms caused by the Trump-era changes.

In 2021, a federal court found the cross-examination requirement of Trump’s regulations to be “arbitrary and capricious.” The Biden administration issued guidance indicating that this requirement was no longer necessary. If the new final rules loosen some procedural requirements – and thus make the proceedings less judicial – it could open up complainants to civil lawsuits since courts could find insufficient procedural safeguards to make the hearing quasi-judicial.

New rules will not help Jane Doe, who now must spend the time, capital and mental energy to defend herself in court. She will also lose her anonymity, as Khan has pledged to continue with the case and expose her identity. Sexual assault survivors, who already experience educational disruptions and financial impacts from speaking out, will now have to calculate whether telling their stories is worth being exposed to these harms, public censure and possible lawsuits.

Educational institutions and the Biden administration must also consider the Khan ruling to determine what Title IX rules should apply moving forward.

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About

Michelle Onello is a human rights lawyer and senior counsel at the Global Justice Center, a nonprofit advocating for gender equality and reproductive rights in international law, and a signatory of the letter urging President Biden to repeal the Helms Amendment.