Defamation claim against alleged Salisbury U. sexual assault victim dismissed

A victim of an alleged sexual assault cannot be sued for making defamatory statements about the incident to “unnamed and perhaps unknown” individuals, a federal judge has ruled in dismissing a claim brought by two former Salisbury University students accused of sexually assaulting a classmate at a party.

Even if the individuals had been named in the lawsuit, the victim would still not be liable for defamation, Judge James K. Bredar ruled, because the statements were likely made in the “legitimate” interest of her own safety and are therefore privileged.

Defendant Jane Doe #1 “has not been accused of publishing these allegations to a broad public forum such as the school newspaper or a social media network,” Bredar wrote Friday. “Rather, Defendant Jane Doe #1 is accused of confiding in those people who are rightly understood to be part of [her] support system — close friends and family.”

Lisae C. Jordan, executive director of the Maryland Coalition Against Sexual Assault, said Tuesday the organization was “heartened” by the court’s ruling. The coalition’s Sexual Assault Legal Institute represented the victim.

“I think it’s completely on point and very much recognizes the difficult situation that victims are in when they’re trying to figure out what to do after being raped,” Jordan said. “We particularly appreciate that the court understands that victims of crime, particularly victims of sexual assault, have to be able to confide in their families and the people who are close to them.”

Plaintiffs Austin Morales and Patrick O’Hara — referred to in the court’s opinion as John Doe and Richard Roe — were suspended by the university after a panel investigating the alleged assault, which took place at an off-campus house party in October 2013. University investigators found it more likely than not that a sexual assault had occurred and that Morales and O’Hara had violated the school’s sexual harassment policy.

The Daily Record does not name victims of alleged sexual assaults.

Morales and O’Hara appealed the panel’s findings but lost. In May 2014, Morales filed the defamation lawsuit in Wicomico County Circuit Court, and in October, O’Hara was added to the suit as a second plaintiff. The case was moved to federal court in February when a Title IX violation was added.

‘Chilling effect’

Defamation suits filed against alleged victims of sexual assault have become increasingly common, Jordan said.

“The prevalence of defamation cases against sexual assault survivors does have a chilling effect on survivors,” she said. “To have to go through a defamation suit on top of everything else really is unjust, and I think that we recognize not only the trauma that that adds to the victim’s experience, but that this also is an extreme financial burden on survivors who have to respond.”

Bredar agreed, noting that “objectionable policy implications” could arise if the victim’s statements to friends and family about the alleged assault were not protected.

“Victims would have to weigh, on one hand, the value of reaching out for help in the aftermath of a traumatic sexual assault, and on the other hand the risk that they could be subject to civil liability for defamation if the occurrence of sexual assault is contested by the alleged perpetrator,” Bredar wrote. “Fortunately, Maryland courts do recognize a conditional privilege for such statements.”

The lawsuit originally also accused the alleged victim of making defamatory statements to university officials who were involved in the plaintiffs’ disciplinary proceeding, but Morales and O’Hara sought to voluntarily dismiss that claim, according to court documents.

Friday’s ruling also dismissed defamation claims brought by the accused students against Salisbury University and several university officials involved in the disciplinary process.

Bredar did, however, allow a negligence claim against the university to move forward, as well as a Title IX claim alleging the school erred in deciding to discipline them due to its own gender bias.

Eric Rosenberg, an Ohio-based lawyer representing the plaintiffs, declined Tuesday to comment on the ruling.

The case is John Doe, et al. v. Salisbury University, et al., 1:15-cv-00517-JKB.