twistpeach@LiveJournal recently published a 100% awesome journal entry, which went viral, about her experience with a creeper at Arisia 2014 and what she did about it. There is so much good in what she did, and what she wrote about it, that if you have anything to do with SFF Fandom, and probably even if you don’t, you should go read it right now if you haven’t already.
However, I feel I must take issue with one thing she wrote in a follow-up journal entry:
3) There was much discussion of libel and slander in the discussion of the deleting, which honestly made me laugh. I support anyone who doesn’t want to host a discussion of my blog on their blog. But the idea that someone who DOES wish to host this discussion might be in legal trouble for slander is ludicrous. First of all, I don’t have to prove that my version of events happened (even though I have ample evidence and witnesses to do so). Slander and libel require that the story be demonstrably false. And the blog alone includes confirmation from the Arisia con chair of my report.
I have two concerns with spreading this kind of information to people who might have experiences similar to twistpeach’s and need to decide after the fact what to do about it. First of all, “Slander and libel require that the story be demonstrably false,” is hardly a universally true statement. Second, whether or not you actually committed slander or libel, you can still be sued, and it can cost you a great deal of time, money, and stress extricating yourself from such a lawsuit.
Before I go into more detail about these concerns, there is one thing I want to be absolutely, 100% clear about. I think that outing creepers like twistpeach’s did is absolutely, positively the right thing to do. I am in awe of her for doing it, and I think if more people with similar experiences reacted similarly and outed the perpetrators, there would be fewer of them and less social acceptance of their actions.
Having said that, let’s dig into the details of what I think people need to know to make an informed decision about whether to out a creeper on-line…
Burden of proof
Let’s say you say in a public blog posting that your ex-boyfriend Joe R. Creeper enjoys engaging in sexual relations with underage girls. Creeper, obviously displeased by this public disparagement of his character and its impact on his reputation, job prospects, and love life, sues you for defamation. Your defense against the lawsuit is that you were telling the truth, so it’s not defamation. Here’s the big question: to win the lawsuit, does he need to prove that your statements were false, or do you need to prove that your statements were true?
Well, if you and your boyfriend live in the U.K. and quite a few other countries, you have to prove your statements were true. “Because proving the truth or falsity of the statement is often extremely difficult (and the defendant does not generally have the ability to force the claimant to disclose materials that might help prove it) it is frequently said that the ‘burden of proof’ in English defamation law falls upon the defendant.”
In the U.K. and other countries with similar defamation laws, the burden of proof always lies with the defendant. Fortunately, things are slightly better in the U.S. Here, the burden of proof only sometimes lies with the defendant. Unfortunately, the statement you made about Creeper probably fall into that category.
U.S. courts generally look at two factors when determining who has to prove whether allegedly defamatory statements were true or false: whether the plaintiff is a public figure, and whether the statements are defamatory per se.
Publicly accusing someone of being a creeper potentially falls into two of the four categories of defamation per se recognized in U.S. law (the categories are similar in other countries with similar legal structures surrounding defamation): accusing someone of committing a crime, and imputing serious sexual misconduct. If you get sued, and it goes to trial, there’s a good chance the judge will agree that your statements were defamation per se. If that happens, you will have to prove that they were true to avoid being found guilty of defamation.
Unfortunately, creepers are often very good at preventing that from happening. They are often very good liars. They tend to choose victims who are unwilling to speak out about it afterward. And they tend to be very good at intimidating their victims into not speaking out, should the need to do so arise. In short, you may find it very difficult to convince a judge and/or jury that you were telling the truth.
But let’s say it’s actually quite easy for you to prove the truth of what you said. Maybe there were lots of witnesses. Maybe your creeper ex-boyfriend liked to take pictures of himself doing creepy things, and you have copies of some of those pictures. Maybe you can convince a couple of his victims to come to court and testify against him. But here’s the thing…
You still got sued, didn’t you?
Being on the receiving end of a lawsuit is a huge, yawning abyss of time, expense, and stress. You might thing that if you didn’t do anything wrong, you’ve got nothing to worry about, but that’s just not true. Even if you’ve got rock-solid evidence that what you said was true, even if you have the greatest support system in the world, even if you have the greatest lawyer in the world, even if that lawyer agrees to work pro bono because s/he despises creepers who use bogus defamation lawsuits to chill free speech on the internet, even if all of these things is true, being sued is still a huge pain in the ass. And if any of those things isn’t true, then it’s just that much more difficult to get through.
On, and did I mention that some jurisdictions have criminal defamation laws, so in addition to being sued by the creeper, you may also find yourself facing criminal charges and possible jail time?
Yeah, but how likely is it that a creeper will sue me for outing them on the internet?
Honestly, it’s not that likely. After all, suing someone for defamation takes time and money too, possibly quite a lot of it, and most people, even most creepers, have enough common sense to realize that if your accusations against them are true and you had the guts to out them in the first place, they’re not going to improve their lot by suing you.
But it’s important to remember a few things:
- Anybody can sue anybody for anything. It doesn’t matter whether the lawsuit is groundless. It doesn’t matter whether you have totally rock-solid evidence that the statements you’re being sued over are true. A sufficiently vexatious litigant can still sue, and a vexatious lawsuit can make it quite far before it goes away, and sometimes our legal system fails and it does not go away.
- The creeper probably doesn’t think you are the victim. A narcissistic creeper is unlikely to respond to your outing him by having an epiphany, realizing how wrong his previous behavior was, and vowing never to engage in it again. Rather, he is going to persist in believing that he did nothing wrong and that you wronged him by saying those mean, nasty things about him on the internet. No matter how obvious it may be to everyone else that you’re telling the truth and there’s plenty of proof of it, he’ll be looking for a way to “prove to the world” that he’s the victim, and suing you for defamation may seem to him like just the thing.
- Sometimes it’s all about the revenge. The creeper may be rational enough to know that he did what you accused him of doing. He may be rational enough to know that if it goes to court, you’ll be able to prove that he did what you accused him of doing. He may not care, because to him it’s all about getting revenge for what you did to him and/or about asserting power over you. Unfortunately, a lawsuit is a great way to do that.
- Sometimes people file lawsuits because they feel they have to, not because they want to. For example, what if you (truthfully) accused a married man of creeping on you? He can either face up to the tzuris of telling his wife the truth about what happened, or he can loudly proclaim his innocence to her because he thinks that’s easier. And that could lead him down a path of suing you because that’s just what he needs to do to maintain the story of his innocence that he told his wife. The same thing can happen if a creeper doesn’t want to have to tell the truth to his controlling, overbearing parents.
- Sometimes he really is cuckoo crazy. ’nuff said.
Anybody who’s familiar with the jonmon lawsuit knows what I’m talking about.
So, you’re saying that people shouldn’t out creepers on the internet, right?
No, that’s not what I’m saying at all. As I said above, I think outing creepers is a public service, and the more people do it, the better for all of us. What I’m saying is that if you are unfortunate enough to find yourself in the situation of having to decide whether to out someone who creeped on / raped / abused you, you should be informed about and aware of the potential consequences; you should think carefully about what you know about the perpetrator and how he is likely to react to a public outing; you should also think carefully about whether you’d consider a lawsuit by the perpetrator a catastrophe or an opportunity to give him the comeuppance he so richly deserves; and, armed with all the relevant information, you should make the decision that’s right for you.
UPDATE: One more thing you should absolutely take into consideration when making this decision is that if you step up and out a perpetrator, and he tries to get back at you, you will not be alone. There are people who will help you, stand with you, support you. If you can’t afford good legal representation, there are great lawyers who will help you pro bono. One of the most important points twistpeach made when telling her story was that she had support which made it possible for her to speak out.