Something I like to do is comment on the law and its role in current events and popular culture. The very serious topic of sexual assault has been seemingly all over the news lately. Practically every day there are new allegations against some public figure. What follows these accusations is usually some combination of public shock and condemnation, possibly criminal charges, and damage to the accused’s reputation and social standing. The response of the accused obviously varies. Recently, we’ve seen comedian Louis C.K. publicly admit the allegations against him. Actor Kevin Spacey said he couldn’t remember the first allegation made against him, but he has since gone silent in the face of further allegations. Sometimes, however, the response involves announcing a plan to sue for defamation.
Speaking in terms of Kentucky law, the basic elements of a defamation claim are (a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. Toler v. Süd-Chemie, Inc., Ky., 458 S.W.3d 276, 282 (2014). There is a lot to unpack in those elements (not even accounting for the requirement of “actual malice” when the party defamed is a public figure), and any Kentucky practitioner would be well advised to review this case (particularly for the effect it has on the previous “final word” on defamation in Kentucky, Stringer v. Wal-Mart Stores, Inc., Ky., 151 S.W.3d 781 (2004)).
One recent "plan to sue" response was mounted by Alabama Republican candidate for the United States Senate, Roy Moore. In a report published in The Washington Post, Moore was accused of having sexual contact with a 14-year-old girl in the 1970’s when he was 32. Moreover, according to the report, Moore pursued three other girls when they were between the ages of 16 and 18 and he was in his 30’s, although no sexual contact occurred. As condemnation came, even from members of Moore’s own party, Moore blasted the story in the most 2017 way possible, branding it “fake news.” Moore has also suggested he “planned to sue” The Washington Post. Donald Trump, one may recall, threatened to sue those who had accused him of sexual assault during the 2016 presidential campaign “after the election,” and over a year after the election he has failed to follow through. It remains to be seen whether Moore does.
I predict that, in spite of his bluster, Moore will not sue The Washington Post for anything. Defamation suits are, by definition, high stakes affairs, and because the truth of the allegedly defamatory statement is directly litigated, they can backfire. The Washington Post does not look like a good target here. The story it published is notably sourced, and the accusers have all gone “on the record” and been identified by name. Subsequent reporting has not helped; no one seems to be surprised by the allegations. All of this counsels against filing a defamation suit. Of course, Moore, when on the Alabama Supreme Court, twice was reprimanded (once removed from the bench, once suspended) for defying federal court orders on “social” issues (a Ten Commandments display and gay marriage), so one cannot assume Moore would heed solid legal advice if he got it.
Nonetheless, Moore should take a long hard look at the foray of Cincinnati baseball legend, Pete Rose, into defamation litigation. In 2015, Rose brought a defamation suit against John Dowd (who, in the 1980’s had investigated Rose’s alleged betting on baseball) over Dowd’s statements on the radio the previous summer that Rose had sexual relationships with underage girls, as young as 12 to 14 years old during spring trainings in the 1970’s. When Rose sued Dowd for defamation he put at issue whether, in fact, he had engaged in such relationships. In July 2017, an unidentified woman supplied an affidavit claiming to have had a sexual relationship with Rose for several years in the 1970’s prior to turning 16. Rose acknowledged the relationship, but claimed it occurred in 1975 (when she was 16, the legal age of consent in Ohio, and he was 34). The timing of this relationship, occurring as it did decades before the dawn of smart phones and social media, will be almost impossible to prove one way or another. Even so, few would look approvingly upon a relationship between the 34 year-old Rose (one of Major League Baseball’s biggest stars of the era) and a 16 year old (particularly in 2017, as the realities of the asymmetry in power is becoming understood as impacting the concept of consent), even if the relationship was “legal.” So, in the end, what has Rose’s courtroom experience gotten him? Well, it remains to be seen, but thus far, it has prolonged the story, and although the facts are disputed, it has given some level of validation to John Dowd’s statement. In other words, it’s hard to say that Rose has cleared his name, irrespective of the outcome of the lawsuit.
This is why the response to any allegations of sexual misconduct will rarely involve anything more than an empty threat of “plans to sue” for defamation. Actual defamation suits all too easily become their own self-inflicted wound. As we move forward in time, consider the role of digital communications and social media in possibly changing this calculus. Compared to the 1970’s, how we communicate and how we document our lives has changed radically. Might a relationship happening right now between a powerful adult and an underage girl or boy be getting documented such that, in the 2040’s, the occurrence of the relationship will be more objectively provable? Conversely, will future courts and juries look to the absence of digital or social media evidence as an indication that the accusation is untrue? I expect that, like everything else, these technological advancements will change this area of the law. I don’t know, however, precisely how.