Acknowledging the realities of abuse is an important part of the recovery of all survivors. In many cases, this acknowledgment is made publicly. There are, however, serious legal consequences associated with public statements about acts of abuse, and these consequences should not be overlooked in the grief, anger, and catharsis of confronting the abuse or the abuser.
Both survivors who write and speak about their experiences and newsletters, like this one, which publish such accounts must be constantly aware of the bounds of the law. While these stories must be told, care must be exercised.
Any false statement of fact (or opinion based upon fact) that is printed, broadcast, or spoken to a third party about a person that tends to harm that person’s reputation is libelous and can be the basis of a lawsuit against both the source of the information and any publication that prints the statement. Falsely accusing someone of criminal activity, as is the case potentially in every situation of unproven sexual abuse, is libelous per se. In such lawsuits, the person bringing the suit does not have to show any actual loss or harm in order to be awarded money damages.
Most survivors at this point will say, “But I’m not falsely accusing anyone. This person committed the acts I am describing, so libel is not a problem.” A survivor may be quite confident of all facts, but unless the perpetrator has been proven guilty of criminal acts by a court of law, he or she may challenge any statements making accusations of criminal conduct. It is difficult to try to prove a case of abuse against a perpetrator during a libel suit. The focus of a libel case will not be on whether the individual committed acts of abuse but rather on the truth or falsity of each and every specific fact that is alleged against him or her. For any publication that prints the statements, the focus will also be on whether it took reasonable precautions to verify independently the truth or accuracy of the statements. Even if a survivor proves the truth of all statements made, he or she cannot be awarded any recovery in a libel suit, usually not even recovery of attorneys’ fees and costs. A survivor stands only to lose if any of the statements should be found to be false, and libel awards can be substantial.
In addition to libel, there is another legal consideration that may, in fact, be more serious. Publication of intimate details of a person’s life without that person’s permission constitutes an invasion of privacy and can serve as the basis for a lawsuit in which damages can also be awarded. The truth or falsity of the information is not a consideration; even if all the statements are true, because a person’s right to privacy may have been violated, an action for damages may nevertheless be maintained. In any act of abuse there are at least two individuals involved — the survivor and the perpetrator. Both individuals have the right to keep the details of their lives private. This right can be given up or waived. And, while survivors routinely waive their privacy rights whenever they speak about their abuse, they cannot waive the rights of their perpetrators.
Generally, when a person dies, their right to privacy dies with them; therefore, a survivor can more safely talk about a perpetrator who is deceased. The perpetrator’s surviving family, however, may have their own separate and independent privacy interests that may be implicated in a recounting of some of the personal details of a perpetrator’s actions.
In light of these concerns, how can personal stories of abuse ever be told? This discussion of legal problems is not just one more example of how the legal system is stacked against survivors. There are ways of working around these hurdles and relating compelling accounts with a minimum of risk. This and other newsletters do it with every issue.
For problems of libel, statements may be qualified in such a way that no actual criminal activity is charged (for example, the “alleged” perpetrator). Publications often try to corroborate as much of an account as possible through independent sources. For example, they can use police and other reports, as well as the accounts of others such as survivors’ families or the friends in whom they confided at the time. When survivors tell their stories, they, too, can limit their comments to what they know can be corroborated by others. Arrest records, records of convictions, and the proceedings of trials (both criminal and civil) are privileged and thus can be used (if used accurately) without fear of a libel suit.
Publication of information already publicly known also is not an invasion of privacy. Records of arrests and convictions (unless sealed by a court) are matters of public record and can be used without privacy concerns. Likewise any details revealed at a public trial can be used with little fear of a privacy or libel suit.
Finally, in both types of actions, the subject of the statements must be identified or identifiable in order to maintain a lawsuit. Thus, if the account of abuse is told without revealing the perpetrator’s name, the account may be protected from suit. Care must be taken, however, to ensure that other aspects of the account do not reveal the perpetrator’s identity. Sometimes revealing the victim’s full name will also identify a perpetrator who is a close family member. Likewise, identifying the perpetrator’s occupation, residence, or relationship to the victim may lead to identification of the individual when read in the context of other facts in the account.
The same concerns attach to any recounting of a survivor’s experiences, regardless of the form in which it is published. Letters to the editor, first-person accounts, providing information to a reporter for a news story — all are held to the same standards. In fact, if the individual is identified or identifiable, even a work of fiction that is closely based upon fact can lead to libel or privacy suits.
Of course, by bringing such suits, perpetrators also face risks. They must acknowledge that the account implicates them and the burden of proving the falsity of any statements made falls upon them in a libel case. The publicity attendant to such suits can be intense. Often that alone is enough to discourage perpetrators from bringing suit. A survivor with personal knowledge of a perpetrator may be able to predict whether or not he or she is likely to initiate a lawsuit. Gambling that anyone will not sue, however, is never a safe way to go about publishing an otherwise risky story.
Acknowledge, confront, and speak and write about abuse, but do so with care.