Lawyer Victoria Burke works to expand sexual assault victims’ protections : NPR

Editor's note: The following story deals with the topic of sexual assault.

Victoria Burke remembers waking up in the hospital in December 2019, unsure of how she got there. The last memory she had was of getting drinks 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,” Burke says. “It was absolutely terrifying.”

She eventually pieced together what happened: After drinks, this individual brought her back to her apartment complex. They stayed in his car for more than an hour until 911 was called. Paramedics arrived and found Burke incoherent, vomiting, her shirt askew and breasts exposed. The acquaintance didn't stick around.

Burke believes this person assaulted her.

In recounting this painful event to a friend, who is also a lawyer, her friend had a stark warning: Don't say this person's name or publicly accuse him of assault.

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

Burke was shocked — and angry.

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

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

But the reach 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 am having people in all walks of life and all kinds of industries in all parts of the country facing these kinds of defamation charges as a form of retaliation,” Mondino says.

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

Since learning about this, Burke, an attorney and professor at Southwestern Law School in Los Angeles, says she's decided to use her legal skills and her assault as motivation to protect victims of assault, abuse and harassment from retaliatory defamation lawsuits.

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

The threat lingers over victims

Since learning about the trend of defamation lawsuits being filed against accusers, Burke has 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. That includes in cases where the alleged abuser is publicly named.

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

Many states with anti-SLAPP laws don't 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 Rape, Abuse & Incest National Network, have worked on similar legislative efforts to strengthen those laws to protect victims in recent years. Those groups say they support Burke's efforts and believe such laws provide a strong disincentive for abusers to pursue their cases.

It's a needed change, Mondino says, as defamation lawsuits filed against victims who speak out are prohibitively expensive, time-consuming and emotionally draining, and contribute to a silencing effect on all victims, present and future.

Burke's proposal gets picked up

Burke found success last October in her home state of California. Gov. Gavin Newsom signed an amendment — based on the proposal crafted by Burke with some added changes — to existing state law that raised the threshold for proving defamation when it relates 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 statements that are knowingly false or with the intention to cause harm.

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

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

Burke's efforts have made progress in other states. In New Jersey, legislators 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 upcoming General Assembly meeting.

“I'm a survivor myself, and so it was a little bit kismet when Victoria reached out to me,” Canty says. 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, made it through committee hearings and was referred to the House Rules Committee in April. But time ran out as the Illinois State Legislature term ended about a month later.

“We can't do better if we are not allowing people to speak their truth,” Canty says of her efforts.

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

Eric Rosenberg, an attorney who has represented many students accused of assault, expressed concern about elements of these kinds of bills.

Rosenberg says he has “zero tolerance for sexual assault,” but that since 2011 his firm — Ohio-based Rosenberg & Ball — has represented hundreds of students who've been accused of sexual misconduct but were found innocent of the allegations. Allowing individuals to file defamation lawsuits in cases of assault or harassment-related allegations levied against them gives those potentially falsely accused an important opportunity to clear their name, he says.

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

Of bills like Canty's, Rosenberg says, “If you were to give a blanket immunity to somebody for a false sexual assault claim, what remedy's left for the accused?”

Canty says she also wants to ensure that people are protected from dubious claims. Both she and Burke point to data that indicates false reporting of assaults doesn't happen often.

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

Canty also says that under current laws, people falsely accused of assault can clear their name. But, she says, there currently is not an avenue available to protect those individuals who have been assaulted and want to speak about their experiences.

“I know folks will always want to point to false claims and say false claims can have such a detrimental impact on a student's future. But an assault also has a detrimental impact on a student's future. And I think we need to be mindful” of caring for both students, Canty says.

In the short time Burke has worked to get her proposal passed, she's encountered many people during meetings with lawmakers and other events who come to her to share their own experience with assault or harassment, but have remained largely silent even years after their assaults and #MeToo.

“A lot of these people never reported it, but they'll tell me,” Burke says. And she's reminded why she is on this path.

“I want people to be able speak out and tell me,” she says. “But I want people to feel safe saying it to whomever.”

If you or someone you know has experienced sexual violence, you can receive free, confidential support by calling the National Sexual Assault Hotline at 800-656-HOPE.