Alleged Offenders Strike Back: Avoiding Defamation Claims in Sexual Misconduct Investigations

In the sexual assault or child sexual abuse arena, the alleged victim typically sues organization for claims such as negligent supervision. Recently, we have seen more lawsuits by the alleged offenders. These lawsuits give some helpful principles for organizations to follow, and perhaps needed warnings.

A student athlete at Xavier University filed a lawsuit alleging that he was falsely accused of sexual assault by a female student.^[1] No one denied there was a sexual encounter, but he says that it was completely consensual. The university, which was under scrutiny from the Office for Civil Rights, expelled the student and made a public announcement that the student was “responsible for a serious violation of the Code of Student Conduct.”

The former student says that the university failed to follow its own policies, conducted an unfair hearing, and defamed him by what it published. In denying the motion to dismiss, the court based its decision partly on the fact that the county prosecutor had investigated and found no evidence of sexual assault, and partly on potential due process problems with the hearing. While the case is still a long way from the jury, the denial of a motion to dismiss means the university must defend the litigation.

In another recent case, a former Catholic priest sued his Archdiocese for libel.^[2] The priest was accused of sexual abuse of a young man over twenty years previously. The Archdiocese suspended him and tried him in canonical court. The former priest was defrocked. When the victim changed his account somewhat, the Archdiocese issued a public statement that the priest’s defrocking was not based on the testimony that had been changed.

The court refused to consider the former priest’s defamation claim because it would require an analysis of the canonical trial, and was therefore barred by the First Amendment. (It may have affected the court’s decision that a canonical trial is a very formal affair, with representation and extensive due process for the accused.) The court also agreed that the canonical court decisions must be kept under seal, both for privacy interests and under canonical law. In this case, the court granted defendant’s motion to dismiss.

What principles may be drawn from these cases?

Organizations should not assume that accusations are necessarily true. More often than not, they are, but not always. They can be untrue for many reasons, from spite, to incorrect memories, to attention-seeking. See "Former Liberty High School teacher, coach acquitted of sexual assault charges". Investigations must be objective and impartial.

Defamation requires a “false” statement. Internal investigations evaluate whether the alleged misconduct “more likely than not” happened. These findings are not made in a court of law. The truth of these findings may be relatively easy to challenge, because any flaws in the investigation may move the findings from over 50% likelihood to under 50% likelihood. The defamation lawsuit will end up being mainly about the truth or falsity of the statements.

Organizations should be sure that their investigations offer due process to the accused. The person accused should have the chance to present his side, including evidence and witnesses. Even though it is not a criminal trial, a finding of sexual misconduct can ruin a person’s life and career.

Organizations must be very careful about public statements, as even a statement relatively lacking in detail can be challenged, as the Xavier University statement was. Whether to make any statement at all should be carefully evaluated with counsel.

Religious organizations have more freedom than secular organizations to follow their religious internal judicial process without having the courts second-guess their decisions. The more formal the process and the more rooted in religious principles, the less likely that secular courts will wish to be entangled with the ecclesiastical court or appeal. Canonical trials, for instance, are very structured and highly protected by clergy confidentiality. As such, they are a model for effective and confidential internal proceedings.

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Notes:

1. Wells v. Xavier Univ. et al., No. 1:13-cv-00575 (S.D. Ohio, March 12, 2014).

2. Kavanaugh v. Zwilling, No. 12-cv-7062 (S.D. N.Y., Feb. 14, 2014).