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Decision in BC Supreme Court hearing could have a chilling effect on the reporting of sexual assaults for fear of accusers being sued
It’s been a revealing nine days for defamation law in Canada, thanks to a lawsuit filed by author and former University of British Columbia Creative Writing professor Steven Galloway against a former student and supporters who have accused him of sexual assault.
Defamation law can be confusing at the best of times, but what played out in a virtual Supreme Court hearing in BC in front of Madame Justice Elaine Adair earlier this month does not bode well for those who report, support, make art or write about sexual assault.
Galloway claims that 20 artists, academics, activists and authors caused him reputational harm when they tweeted that a UBC student (named as A.B. in his claim) had accused him of alleged sexual assault, sexual harassment and assault.
The allegations, he says, led to his suspension and eventual dismissal from UBC. Galloway sued UBC and was paid $240,000, but he was not reinstated. His publisher, Penguin Random House, dropped him shortly afterward. But other than “irreparable breach of trust” found by a UBC investigation and a detailed history of misconduct, the
reasons for Galloway’s firing have not been made public.
It is Galloway’s contention, nevertheless, that A.B. is responsible for the harm he has experienced. He claims that there was no assault and that he had a consensual affair with A.B. He says that when supporters of A.B. (including former close friends of his) continued to support her in tweets following her public maligning by Galloway
supporters, the harm caused by A.B.’s allegations were exacerbated.
On the first day of the hearing Galloway’s suit had already generated some 140,000 pages of submissions and estimated costs had reportedly reached $5 million. Ten legal teams have been retained as part of the suit to argue on a raft of relatively new defamation legislation known as Protection of Public Participation (PPPA) and Anti SLAPP
(Strategic Lawsuits Against Public Participation) laws.
Galloway’s lawyer, Dan Burnett, has made a number of allegations against the defendants. It’s expected that many will be dismissed by the court. But those that go on to trial could set a dangerous precedent and have a chilling effect that will prevent people from reporting their sexual assaults, or speaking about them at all, for fear of being sued.
It’s already happening. A.B.’s art installation on the horrors of reporting sexual assault on the campus site was
well received at a small gallery in New York City. Galloway claims in his lawsuit that a review of the show defames him. Although neither he nor UBC are mentioned in the article in question, Galloway is suing the writer and the art gallery. Other artists who wrote or tweeted about the review are also being sued.
The reach of Canadian defamation law is frightening. In the shorthand version offered by Galloway’s lawyer, if John says “I didn’t rape you,” and Judy says “Yes you did!” then Judy has defamed John. And if anyone else repeats
what Judy said, that too is defamation.
Using terms like “alleged,” “claimed,” and “reported” in the context of a sexual assault or rape case, for example, could also qualify as defamation. Someone should alert the news media. But perhaps their fear of defamation imputations is why they are already reporting less on crimes of sexual violence, and barely at all on this case.
Canadian literary lights, including Margaret Atwood, Michael Ondaatje and Joseph Boyden, have banded together to form UBC Accountable in Galloway’s defense. It’s in their widely-published open letter that details of the reported sexual assault were first publicly released. Additional articles by members describe UBC’s investigation into the matter as a “tragedy” for Galloway.
The inability of academic institutions to deal with reports of sexual assault on campus, however, can’t be denied. History shows that their general practice is to silence and attack the accuser and hope the problem will go away – government-ordered policies to the contrary be damned. It’s basically the same treatment afforded by the courts (and law) to complainants in sexual assault trials.
For example, there was no policy or procedures in place at all at UBC to respond to A.B.’s claim. But UBC Accountable members did not raise their powerful voices in defense of students who attempt to report their sexual assaults or sexual harassments. Instead, they implied that A.B.’s account was untrue and relied on rape myths to insinuate that she was scorned and vengeful.
Lawyers for the defendants argue that it is the dissemination of information by UBC Accountable members that caught mainstream and social media attention and resulted in national and international coverage, not
tweets by A.B. and her supporters.
Also entered as evidence in the hearing are revelations found in the Boyd Report commissioned by UBC to investigate A.B.’s claims. Those include that Galloway sexually harassed A.B. and that A.B.’s sexual assault claim was not “unsubstantiated”.
But that’s not the account that showed up in media accounts of the report when parts were first released by Galloway to the press. That’s because the report was only made available to Galloway and only released in full to the public on March 31, one week before the hearing into Galloway’s defamation claims was set to begin.
The hearing is scheduled to continue on June 2.
Jane Doe is a sexual assault author, educator and activist.