In an interview with Law Times, Elizabeth Grace, civil sexual assault lawyer, comments on a recent Superior Court of Justice decision where an Ontario man successfully sued his nieces for defamation after they sent out e-mails to family members alleging he sexually abused them when they were young girls. The uncle was awarded $125,000 in damages after a judge found that his nieces' accounts of abuse were "vague" and "embellished".
The alleged incidents occurred between 1982 and 1986, when the sisters were each between four and six years old. The judge found that neither sister had provided evidence of a "clear and cogent nature ... to substantiate [her] claim of sexual abuse". He dismissed the sisters' claims of sexual abuse.
The judge ruled that the sisters could not rely on the defence of qualified privilege to counter their uncle's defamation claim. Qualified privilege protects an individual making an otherwise defamatory statement where the person making the communication has an interest or duty to make the statement and the person to whom the communication is made has a corresponding interest or duty to receive it. The communication must be reasonably appropriate in the context of the circumstances at the time the information is transmitted; if it is, then a claim for defamation will be dismissed unless the party claiming to have been defamed can prove the words were spoken with actual malice. In this case, the judge found that the nieces (and their father) did not have a duty to publish defamatory statements about the uncle. Furthermore, the judge found that the defendants did not have an honest belief that the uncle was a child molester, and therefore the judge held that they were motivated by malice.
The judge justified the $125,000 award of damages for the defamatory statements on the basis that "[a]llegations of sexual abuse do not die easily and probably never will." The judge also considered the damages he would have awarded the sisters if their allegations of sexual assault and battery had been proven. He said he would have awarded each of the sisters $35,000 in general damages. The discrepancy between the large actual award of damages for defamation and the relatively small theoretical award for sexual assault and battery is disturbing to many.
Grace, who regularly represents victims of sexual abuse, describes this decision as concerning. Courts in cases like this one must strike a tough balance between encouraging victims of abuse to speak out and protecting the reputations of people wrongfully accused of terrible misconduct. In an interview with the Toronto Star, Grace says that it is "very rare" that victims of alleged sexual assault are found liable for defamation. The lack of support and self-doubt experienced by many survivors of sexual abuse is already a large impediment to pursuing legal remedies for the harms that they have experienced. There is a concern that "...the publicity [about this decision] could discourage people from coming forward," says Grace in an interview with CBC. Also, "[a] case like this ... will give defence counsel reason to start counterclaims for defamation."
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
