The Agenda with Steve Paikin (Audio) - A New Battleground for Sexual Assault

Episode Date: May 2, 2024

After the rise of the #MeToo movement, activists noticed an increase in a new tool to fight against allegations of sexual assault. Some men accused of misconduct have turned to defamation lawsuits as a way to protect their career and reputation. Does Canadian law make it too easy for men to sue their accusers? Is this the new avenue to litigate sexual assault cases? Mandi Gray explores these questions in her new book, "Suing for Silence: Sexual Violence and Defamation Law."See omnystudio.com/listener for privacy information.

From epic camping trips to scenic local hikes, spending time outdoors is a great way to create lasting memories to share with friends and family. This summer, TVO is celebrating the natural wonders that inspire unforgettable adventures with great documentaries, articles, and learning resources about beloved parks in Ontario and beyond. Visit tvo.me slash Ontario summer stories for all this and more. And be sure to tell us your stories for a chance to win great prizes. Help TVO create a better world through the power of learning. Visit TVO.org and make a tax-deductible donation today. After the rise of the Me Too movement, activists noticed an increase in a new tool to fight against allegations of sexual assault.

Many men accused of misconduct have turned to defamation lawsuits to protect their career and reputation. Does Canadian law make it too easy for men to sue their accusers? Is this the new avenue to litigate sexual assault cases? Mandy Gray explores these questions in her new book, Suing for Silence, Sexual Violence and Defamation Law. And she joins us in our studio. Welcome. MANDY GRAY- Hi. ALEX SMYTH- All right, so let's get into how you got started.

How did you get interested in the specific intersection of sexual assault and defamation law? MANDY GRAY- So it started around 2017 when I was doing a lot of public-facing work and and to in regards to sexual assault specifically and I was hearing from people globally about their experiences of reporting or trying to report and not being able to all the things that we heard really during the Me Too movement and one of these stories really was shocking to me, and it was Lynn, who you meet in the first chapter of the book.

And Lynn was apprenticing as a tattoo artist in France. She's Canadian. And while she was there, she experienced repeated bullying and harassment and eventually repeated rapes by her boss. And she reported it to the police in France, and he was criminally charged. And after the criminal charges were laid, there was a trial, and he was acquitted. And following the acquittal in France at the time, he was able to criminally charge her for making false accusations. So she

was facing jail time and also sue her in defamation. And as you can imagine, this was really shocking to Lynn, who was already back in Canada, who then had to go to France and defend herself against potential jail time and a defamation suit in French, which was her second language. And it really had a detrimental impact on her wellbeing, even after the charges against her had been dropped and the lawsuit had ended. However, I assumed that this was something happening in France, it was happening elsewhere,

until shortly after I met another woman who had a similar experience, but this was in Canada, and she had reported somebody in her workplace for sexual harassment and similarly was sued. And so I asked Joanna Bierenbaum, who's a litigator in Toronto who specializes in sexual abuse cases at the time, and she was representing a number of women who had also been sued after making formal reports of sexual assault.

And then the Me Too movement happened, and I don't need to give you a primer on what that entailed, but it resulted in many people feeling empowered to speak about what happened to them, to make formal reports, and as you mentioned, resulted in a whole slew of defamation lawsuits. And that's really what we're seeing in the courts right now, being litigated, and has become a more common tactic following disclosure or report of sexual assault in the Canadian context, but also globally. All right. Before we dive into that, I do want to ask, which I find quite interesting,

on the day you submitted the proposal for this project, the book, the subject matter got personal for you. Do you mind telling us what happened there? Yeah, it was one of those really unfortunate set of circumstances. So this book is from my PhD work. And part of that process is submitting a proposal about what you're going to do. And I was on that high of getting into my research. And I sat down in class.

And I opened my email and saw, hey, have you read the National Post? You're being sued for defamation. And I was not being sued by the person who assaulted me, but I was being sued by somebody who was publicly accused of sexual assault. And I tweeted about the case when many people were engaging in a public conversation about the allegations that were made

to the university at the time. So it was shocking to me. And despite finishing my PhD, doing a two-year postdoc, writing this book, becoming a faculty member, six years have gone by, and my case is still before the courts. So just in terms of like the longevity and the consequences, it is quite severe

and really did, I think, I didn't want to focus the book specifically on my own experience, but I am upfront that I do also have this personal experience of being a defendant in a defamation lawsuit, which I think maybe helps people feel comfortable talking to me because I knew just how high the stakes were and the challenges of defending yourself in defamation. Fair enough. All right.

You describe Canadian defamation law as being plaintiff-friendly. Can you explain what you mean by that? Absolutely. So those weren't my words. But defamation law in Canada looks different because a plaintiff can initiate a defamation suit, and then it's on the defendant, the defendant being the person being sued, to defend those statements. And so that's very different in other cases of law, where it would be the plaintiff has to put forward the case and make the argument, whereas the onus falls specifically on the person being sued to defend their statements and validate why they made those statements.

And that can be particularly challenging in cases of sexual assault, given all the discriminatory myths and challenges of reporting that have all been really well documented in the last decade, in Canada specifically. We talked about, you know, the Me Too movement, but you write that litigation has the ability to push sexual violence discourse from the public sphere. Why do lawsuits or threats of lawsuits stifle this conversation? What is it when someone gets served? So really sound legal advice, any good lawyer will tell you, stop talking about it.

And what that does, and if you can look at my case, for example, six years goes by and you can't talk about it. There was somebody, for example, who in the book was sued by an organization for speaking about sexual violence. And although they withdrew the lawsuit the eve of going to trial, that was five years that she wasn't speaking about it was a physician who was sexually assaulting patients. So it takes these discussions,

really important discussions out of media who might be maybe risk-averse to publish these kinds of stories when you have a litigious person. But also I argue that even beyond the public sphere, there's lawsuits for people disclosing to family members and in these private settings. And what we know about sexual harm is it's really critical that you can have these open conversations about what happened to you. So I really do worry that if these lawsuits are to continue, especially in these

private settings, especially when people are making formal reports, how can we continue to encourage people to take these steps with the possibility that they could be sued in defamation? I want to pick up on the point you made about the media, because I want to know, you know, what does fear of litigation do to people like us? And what I mean by that is people who are writing books or talking about current events in the media.

Because as you mentioned in your book, pre-MeToo, there was the ability in media to offer some anonymity. And we see that post-MeToo, that in terms of media, that option isn't necessarily there as much. Can you talk to me a little bit about that? Yeah, from my conversations with people who wanted to go to media in a post-MeToo context, there were, like you said, a lot fewer opportunities to do so anonymously. And it's really from this liability

or concern about having anonymous accusers, for example, men initiating defamation actions to get the names. And it creates an additional challenge, I think, and especially within the climate of news media right now and being a bit more risk averse. And I write about freelance authors, for example, who maybe don't have the same access to in-house counsel or an insurance policy that will cover them if they get sued in defamation. So I did notice that there were a chilling effect on the types of stories that are being reported. And I even write about this in the book. As much as I critique media, I also did the same things. I criticize in terms of like, you know, not having the full details of what happened or what some of the people would call like watering down allegations, removal of names,

and it becomes a lot more sanitized. But it was also of my own fear of being sued in defamation for this book. So it is a definite challenge. And I think that there is definite need to reevaluate defamation laws and who they are actually protecting in the Canadian context, and specifically in media, as well as those who make formal reports. Well, let's talk about that one. I want to talk about more of the gender binary in that. Chapter three of your book is called The Gender of Reputation. You write that defamation law has different consequences for men and women in Canada, obviously looking at it from a historical stance as well. Why is that?

So I thought this was kind of the most interesting part of the research process for me, was seeing the kind of what I call the gender underpinnings of defamation law and why defamation law was even created. And it was created at a time when there was a desire to encourage civil society so men would rely less on bloody duels. So if you put it in that context of why it was created, it was really to encourage public discourse

instead of relying on violence. And so historically, men would typically sue for dishonor to their reputation that would result in damages to their ability to make money. Whereas when women sued historically, it was primarily in relation to their ability to marry and was often intertwined with commentary about their sexuality.

So it was very much gendered historically and continues to be so in terms of like how we value men's reputation versus women's reputation. And I thought that was a really critical piece in this book because so much focus was on the reputational damage experienced by the men who've been accused of sexual assault. And even myself, as I was doing this research spent, it took me a while to realize the reputational damage that is experienced by people who report or disclose sexual assault and then are sued. And there were really profound professional consequences

for a lot of these people who either spoke up directly or were supporting somebody in reporting. I do have to ask this question. What about when a man accused of sexual violence is innocent? Wouldn't a defamation suit be an important tool to restore that reputation? I think that's such a critical question. And I think it's really important because what we're seeing is so much focus on the false accusations and that there's this societal problem

of false reporting when the statistics really show us otherwise false reporting is a very small percentage what we know about gendered violence however it impacts a lot of people and we have a systemic problem um declared epidemic levels of gendered violence. And so constantly worrying about the false accusations at the expense of encouraging reporting and disclosure, I think, is problematic at its core. But I do think there needs to be avenues when false reports are made. false reports are made, but false reporting is not happening at the frequency in which these defamation lawsuits are being initiated and actioned. All right. I want to talk about sort of the negative effects that you heard from the women that you interviewed who were sued, because it's not just emotional, there's also physical. Tell me a little bit about that. The consequences were so complex. So we talked about, you know, the silencing impact, and that really had an impact

on the individual in terms of access to counselling, access to resources, fear of talking about sexual violence even generally. And then at the level of like their well-being, many of them described developing stress symptoms that resulted in physical illness that they directly attributed to being sued, and the lack of faith that they saw in the legal system that essentially tried to punish them through these processes, significant reputational harms, loss of jobs, loss of income, and of course, can't ignore the consequences of the financial impacts. And, you know, people told me they were worried about losing their homes or like, how am I going to pay this? And when we're talking about lawyer fees, it could be hundreds of thousands of dollars as like a modest estimate. Like it's not

an avenue that's available to most Canadians, I would say, to defend them in this kind of legal battle. I want to read a quote from your book. You write, many of the silence breakers interviewed relied on formal avenues of reporting. This runs counter to the assumption that defamation lawsuits are typically initiated after women in name and shame met on social media for some sort of personal benefit. While some of the silence breakers resorted to social media instead of making a formal report, a majority did not. So you're saying that even people who report sexual violence through official channels can still be sued.

How is that? Yeah, and it comes down to a specific part of the law. But I think that also speaks to a really common misconception. Whenever I talk about my research, people always jump to the assumption, and even myself when I began this research, that a lot of it would be social media. Because I think that so much of the focus

and concerns around false accusations come from what's being posted on social media. But my conversations with lawyers, the cases I reviewed, and the people I interviewed, I would say almost all of them attempted to make a formal report. And in some cases, there were peace bonds entered into, which would be like a restraining order. So there was some kind of recognition through the courts that there was not necessarily a finding of guilt per se, but something had happened that warranted

a restraining order between the two parties. And there's still litigation being initiated in these sets of circumstances. So I think it's really critical that we reevaluate the ease in which you can initiate a defamation claim and then cause these really significant harms, as well as deterring people from making formal reporting, because there isn't anything that restricts people from initiating the claim. And even if you have a defense, and you could arguably have a defamation lawsuit be dismissed, you really also need to think about, it's not necessarily the the legal victory it's the process that is so damaging to people in terms of the finances the consequences of being forced into this very invasive legal process that you have to disclose a lot of your personal life to the person that

you reported for harming you so it's almost like what happens in terms of the legal decisions are important and relevant, but the ability to initiate that legal action is really the harm that I'm hoping that this book can better address. And hopefully, I hope to see that formal reports are something that this province is willing to protect for future people. So you have a chapter in this book dedicated to sexual violence on college and university campuses. What's the significance about, the significance about how this issue sort of manifests on campus?

This was a really surprising finding to me. It was not something I had intended to look at when I started this research, but what I found, and this speaks to another like surprising finding, was the frequency in which people were not just suing the person who made the formal report, but also people who supported the individual

in making their report. And this was particularly true on campus because I spoke to a number of university professors who were sued because they received a disclosure of sexual violence, often by another faculty member, and then were themselves sued in defamation. So it was really interesting to me that how, and as a faculty member myself, you know, we are encouraged to support survivors and people who disclose sexual violence, but a lack of recognition of the types of retaliation that these people who are providing this support could potentially face. And what was interesting as well

is it wasn't just the defamation action. It was oftentimes these men accused were taking all complaint mechanisms in attempt of accountability, whether it's like the internal human resources policy or making a complaint at the human rights office, and then would really create these really challenging institutional structures and have very profound professional consequences for many of these faculty members who really just wanted to better support their student in the reporting process. So I think it is the campus context is particularly important, especially as we're seeing more and more interest in addressing the problem on campus, how are universities better protecting their faculty members or the student body more generally

from these types of retaliatory actions? So the campus piece was also a bigger piece than I was really expecting at the outset of this research. All right. I'm hoping you can do some definition, some defining for us. There's a chapter in the book that looks at something called Strategic Lawsuits Against Public Participation, or SLAPS, S-L-A-P-P-S. Can you tell us more about what that actually is? Yes. So SLAPS has kind of, it's been interesting to see how common that term has become used and it likely is attributed to the province of Ontario

adopting legislation to address these types of lawsuits, but essentially at their core, there are lawsuits that are initiated with the intention of stifling public participation, broadly defined. The initial term was a very specific U.S. term that was in relation to very political speech. However, the province of Ontario and B.C. has adopted legislation to address these types of lawsuits that are intended to protect people from lawsuits against matters of public importance, which I think many of us would agree gendered violence

is of public and political importance in this current climate. And so that's really the slaps is an academic term that has been kind of adopted into policy and law more recently in those two provinces so far. Can you give us an example of how anti-SLAPP legislation can be used in the case of defamation suits and sexual violence? Absolutely. So the intention of the anti-SLAPP legislation is to provide defendants, so people being sued, a mechanism, and in theory, to have a lawsuit quickly and more effectively dismissed before having to go through the entire defense and discovery. So its intention was to do that.

There's a lot of debate on whether that has been realized with the legislation. However, there are a lot of debate on whether that has been realized with the legislation however there are a number of cases in ontario that have been for example um i'll think of a case that somebody reported to the police and uh then the person and the the defendant entered into a peace bond so similar to a restraining order and And then he sued her in defamation. However, she was able to successfully bring an anti-slap motion forward. And on the grounds that reporting is a matter of public interest. This type of speech needs to be protected.

And it has a public interest component to it. And so the courts did dismiss the lawsuit using the new legislation, new-ish legislation that's been around a while now. But with that being said, it's not always the case. And I talk about this in the book. There are instances, specifically social media disclosures, the courts have not been as willing to dismiss those types of communications. All right. We've talked a lot about the issues, but I want to talk a little bit about potential solutions.

What should be done to improve this issue? Oh, there's a lot. But where to begin? I think beginning with, of course, addressing gendered violence more broadly, societally, is the ultimate goal. While we're working towards that goal, I think there's a few fixes and I don't want to rely on law too heavily because it's not always the right solution to this type of problem. However, there are things that could be

making things better for people who report and are then sued. So one being improvements to the current anti-SLAPP legislation in terms of how expensive it is. It's not really that timely. And that's not just in claims of gendered violence. I think it's really been criticism across the board for all types of anti-SLAPP motions in Ontario and BC

where the legislation currently exists. I think expansion of the anti-SLAPP legislation to other provinces could be a step and maybe hopefully learn from the lessons of BC and Ontario in terms of some of the flaws embedded in that legislation. And the other being, I think there just needs to be people to make formal reports. I think that there needs to be more protection of formal reports at this time. So I think those are very preliminary thoughts on what possible, not solutions, but could help the problem for sure. Fair enough. We have about 30 seconds and I'm going to ask you a question that probably is going to go a little over 30 seconds,

but I'm hoping you can but it was a good answer. Okay, I'll keep it concise. Did you find anything in your research that makes you hopeful moving forward? I think there is something that was really hopeful to me, and I often think of two different things. I spoke to a lawyer who expressed frustration at the fact that people will say the defamation lawsuit or the possibility of a defamation lawsuit is enough to keep quiet. And we can't, and especially those of us in positions of like relative social privilege, we can't trot that out as the reason not to address sexual violence in our communities. And so I often think to that, and that was a big motivator for when I was like,

should I write this book? Should I not write this book? The second being all the bystanders I talked to, all of them, despite the horrific consequences of being sued, I asked every single one of them, would you do it again? And without hesitation, yes. They felt it was their duty to continue to support people

in reporting sexual violence. And despite these really, really grave consequences, I thought that was really inspiring and something that I continue to hold with me as I continue doing this work myself. Mandy, thank you so much. That was really, really great. Thank you. Thank you so much. Thank you. Thank you so much.