Editor’s note: The following story deals with the subject of sexual assault.

Victoria Burke remembers waking up in the hospital in December 2019, unsure of how she got there. The last memory he had was of catching up with an old acquaintance.

“One minute I’m in this nice restaurant, and the next minute I’m waking up, coming out of a severe coma in the ER, not knowing how I got there,” says Burke. “It was absolutely terrifying.”

Finally, she pieced together what happened: after drinks, this person brought her back to her apartment complex. They sat in his car for more than an hour until 911 was called. Paramedics arrived to find Burke incoherent, vomiting, her shirt on and her breasts exposed. The knowledge did not stop there.

Burke believes this person assaulted her.

Recounting this painful event to a friend, who is also a lawyer, her friend had a stern warning: Do not name this person or publicly accuse them of assault.

“‘They could sue you for defamation,'” Burke says she remembered her friend saying.

Burke was shocked – and furious.

Her friend was right: In the years since the #MeToo movement took off — when women spoke publicly about sexual assault and harassment by powerful men in an effort to hold them accountable — many of those accused of misconduct filed defamation lawsuits against their accusers. Although some attorneys say the option gives people who have been wrongly accused a way to clear their names, Burke and other attorneys say the lawsuits can intimidate victims into silence.

It’s played out in high-profile, public cases like that of singer Ke$ha and music producer Dr. Luke and the actors. Johnny Depp and Amber Heard.

But the scale of the problem goes far beyond the rich and famous, says Jennifer Mondino, senior director of the National Women’s Law Center’s Times Up Legal Defense Fund.

“From my end, I have people from all walks of life and all types of industries from all parts of the country facing these defamation charges as a form of retaliation,” says Mondino.

She says she sees students and low-income service workers threatened with defamation lawsuits for speaking out. Even when accusers file harassment complaints with employers or law enforcement, there were incidents where the accused uses those statements to file defamation cases, Mondino says.

Since learning about it, Burke, an attorney and professor at Southwestern Law School in Los Angeles, says he’s decided to put his legal skills to use. and her attack as a motivation to protect victims of assault, abuse, and harassment against retaliatory defamation lawsuits.

Along with lawmakers from New Hampshire, New Jersey, Delaware and Oregon, Burke is pushing to change defamation laws at the state level to ensure they can continue to speak out against their abusers.

Damian Dovarganes / AP

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The threat lingers on the victims

Since he found out about tendency to file defamation suits against accusersBurke drafted legislative language that would prohibit a person accused of sexual misconduct, abuse, harassment or domestic violence from using a defamation lawsuit to silence or retaliate against a victim. This includes cases where the alleged abuser is publicly named.

What Burke proposes is an extension of many anti-SLAPP states (strategic process against public participation) laws. A SLAPP lawsuit, like a defamation lawsuit, is filed in retaliation against a victim, witness, whistleblower, or journalist with the intent to intimidate or silence them. Anti-SLAPP Laws are meant to provide protection against these lawsuits and prevent people from using the justice system as a means of intimidation and silencing people and the press.

Many states with anti-SLAPP laws do not expressly protect victims of sexual assault, abuse or discrimination — leaving them open to defamation lawsuits from their attackers, according to Burke.

Advocacy groups, including the National Women’s Law Center and the National Rape, Abuse and Incest Network, have worked on similar legislative efforts to strengthen those laws to protect victims in recent years. These groups say they support Burke’s efforts and believe such laws provide a strong disincentive for abusers to pursue their cases.

It’s a necessary change, Mondino says, because defamation lawsuits have been filed against victims who speak out. they are prohibitively expensive, time consuming and emotionally draining and contribute to a silencing effect on all victims, present and future.

Burke’s proposal is accepted

Burke was successful last October in her home state of California. Gov. Gavin Newsom signed an amendment — based on Burke’s proposal with some additional changes — to existing state law that raised the bar for proving defamation when it is related to sexual assault or harassment.

The person filing the lawsuit must now show that the person alleging sexual assault or harassment spoke with malice. This means making false statements knowingly or with intent to cause harm.

The California amendment also requires that if a lawsuit is determined to be frivolous and brought for retaliation, the plaintiff will be responsible for covering the defendant’s attorney fees and other costs.

These additional protections, Burke, Mondino and other advocates say, will help prevent retaliatory lawsuits designed to silence accusers.

Burke’s efforts made progress in other states. In New Jersey, lawmakers introduced a version of Burke’s proposal in September.

And in Illinois, state Rep. Mary Beth Canty plans to push a version of Burke’s proposal in the next session of the General Assembly.

“I’m a survivor myself, so it was a bit scary when Victoria approached me,” says Canty. In 2023 and then again in 2024, Canty introduced a version of Burke’s bill. The 2024 version, HB 5452, which expanded on Burke’s proposal, passed committee hearings and was referred to the House Rules Committee in April. But time ran out, as the Illinois state legislature ended about a month later.

“We can’t do better if we don’t allow people to speak their truth,” Canty says of her efforts.

Canty says she remains committed to reintroducing the bill in the session that begins this month. She hopes to include an element that addresses potential retaliation for students at Illinois colleges and universities. HB 5452 was intended to ensure that victims are not retaliated against in Title IX or sexual misconduct cases at their colleges for speaking out about bullying, harassment or other harm.

Eric Rosenberg, an attorney who has represented many students accused of bullying, expressed concern about the elements of these types of bills.

Rosenberg says he has “zero tolerance for sexual assault,” but that since 2011 his firm — Rosenberg & Ball in Ohio — has represented hundreds of students who were accused of sexual misconduct but found not guilty of the charges. Allowing people to file defamation lawsuits over assault or harassment allegations made against them gives those potentially falsely accused an important opportunity to clear their names, he says.

Rosenberg has “filed numerous defamation claims across the country on behalf of falsely accused students,” many of which have resulted in settlements, he says.

Of bills like Canty’s, Rosenberg says, “If you were to grant blanket immunity to someone for a false sexual assault claim, what remedy does the accused have?”

Canty says he also wants to make sure people are protected from dubious claims. Both she and Burke point to data indicating that false reporting of attacks does not happen often.

Research from 2010 found, for example, that false attack reports were a relatively rare event, ranging from 2% to 10% of the total.

Canty also says that under current laws, people falsely accused of assault can clear their names. But, she says, there is currently no avenue available to protect those people who have been bullied and want to talk about their experiences.

“I know people will always want to point out false claims and say that false claims can have such a detrimental impact on a student’s future. But an attack also has a negative impact on a student’s future. And I think we have to be careful” to take care of both students, Canty says.

In the short time Burke has been working to pass her proposal, she has met many people during meetings with lawmakers and other events who come to her to share their own experiences with bullying or harassment, but have remained very silent even years after their attacks and # Me too.

“A lot of these people have never reported it, but they will tell me,” says Burke. And it reminds him why he is on this path.

“I want people to be able to talk and tell me,” she says. “But I want people to feel safe telling anyone.”

If you or someone you know has been sexually assaulted, you can get free, confidential help by calling National Sexual Assault Hotline at 800-656-HOPE.

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