Bullies, Bullies Everywhere

Posted in: Injury Law

Harvey Weinstein with his disgusting history of leveraging Hollywood mentorship to assault and harass women is a symptom of the United States’ general tolerance for sexually destructive behavior by the powerful. Disclosures about men in positions of power who have leveraged their positions to degrade and assault victims have piled up: Roger Ailes, Eric Boling, Bill Cosby, R. Kelly, Bill O’Reilly, Charles Payne, Roman Polanski, Donald Trump, and Anthony Weiner. And these are just the recent headliners.

Of course, we are not only talking about adults: 20-25% of our children are sexually victimized by institutions, individuals, and families. How do these men (and it’s disproportionately men who engage in this behavior), intimidate the culture into silence? Through threats and power over their victims and a legal system that is constructed in their image.

The Good News

The good news is that we have this growing list of names for the public to read. The silence has been breached. It has been my experience that a poisonous presumption contributes mightily to empowering the morally challenged and disabling the vulnerable: there is a deep fear of affecting a man’s income and reputation. One editorial board actually told me that they could not back statute of limitations reform for child sex abuse—which would protect millions of children and families in their state—because they had received two reports about powerful men and their reputations did not deserve to be harmed. That’s the calculus: millions of victims to two men.

The legal system reinforces this culturally ingrained fear of undermining the “family breadwinner” through the interplay of two laws: short statutes of limitation (“SOL”) for rape and defamation law. Too often, by the time the victim is capable of coming forward, it is too late, because the criminal and civil SOLs have expired. It is a perverse reality that this heinous crime has been treated as though it’s a contract dispute—give them a couple of years and then shut down the legal options.

Eliminate the Rape Statute of Limitations Without Regard to Age

There is an active movement to end the child sex abuse SOLs. State after state is extending, eliminating, and reviving expired SOLs. This is justified by the reality of trauma wrapped in shame and humiliation: child victims don’t understand how and why they are being injured and then cope in ways that delay disclosure and healing. Whether it is substance abuse or PTSD, short SOLs often run out before the victim can get to court.

Sexual trauma also retards the capacity of the adult victim to enter the legal system fast enough. The short SOLs reflect the understanding that this is a heinous crime and then make the assumption the victim will react accordingly. But that is not in fact how trauma works through the human system and the law needs to catch up to the science on this issue. The sexual abuse movement to end SOLs should be expanded to include adult victims, and states like California have already taken that step.

Fixing Defamation Law: It’s Simple

Regardless of the SOLs and especially when they have expired, there is a fix to defamation law that can help the victims. Once empowered to come forward, she (or he) may still want to name the perpetrator in public—to prevent anyone else from being hurt. It’s called survivor’s guilt, and it is real. A perpetrator, though, has another weapon he can wield against her. He can respond to charges in the press with a lawsuit for defamation. She is then advised to think twice before naming him, because she would have to hire a lawyer to defend the lawsuit. She could win eventually, because truth is an absolute defense to defamation—but it can take years to get there.

Bill Cosby is the great example of this tactic. He sued seven women for defamation after they said he sexually assaulted them. It took two years for the case to be dismissed. His lawsuit was nothing but a bully’s sham to force these women back into the shadows. It didn’t work, but those women deserved more from the system than just dismissal. Defamation law needs to change to fix this imbalance of power.

When the defamation case is prompted by sex assault allegations, there should be an expedited procedure for the court to determine the facts of the alleged assault. And if the assault is proven, the perpetrator should then be forced to pay treble damages and attorneys fees to the victim for having filed the defamation lawsuit.

That would have meant that the seven women sued by Cosby could have walked away with the damages and attorneys fees they would have gotten through a civil lawsuit. That’s only fair. This fix should open the door to more representation of these victims and create a deterrence against these macho defamation lawsuits. The result is that victims can name their perpetrators without fear—regardless of the power of the perpetrator or the SOLs.

The United States has granted the unprincipled and predatory a wide berth to pursue the vulnerable and dependent. Fixing the SOLs and defamation law can shift the balance of power between the perverts and the victims. There is one reason to make these changes: fundamental decency.