//  4/5/18  //  Commentary

#MeToo Series: This post is part of a series on #MeToo, sex discrimination, and possible solutions that amount to more than quick fixes. You can read earlier posts herehere, and here , as well as some related posts here and here.

Recent stories have underscored why systemic solutions are desperately needed, and why they have to be part of the conversations surrounding #MeToo. Some of the mechanisms that have enabled harassment and limited our ability to fix it are dry, technocratic legal rules. Solutions to #MeToo, therefore, must address those legalisms, particularly the availability of legal remedies and legal protections for accusers. I wanted to flag three stories that, in my view, underscore this point. In prior posts, I've written about Stormy Daniels & NDAs, and Claire Foy & pay disparities & enforcement mechanisms. This post will address another story with lessons for #MeToo—the Melanie Kohler story and the threat of retaliatory suits.

Melanie Kohler is one of several women who accused Brett Ratner of sexual assault or sexual harassment. But she is the only woman Ratner chose to sue. Kohler also happens to be comparatively less famous, and comparatively less well to do than the other women who accused Ratner.

Ratner’s defamation suit against Kohler was one of the animating forces behind, or at least anecdotes used to explain, Time’s Up, an initiative that is designed to provide resources for women standing up to sex discrimination. Ratner's suit against Kohler is an example of how powerful men can ensure that accusations of misconduct never see the light of day—by threatening women who speak out with financial or professional ruin (here, in the form of expensive litigation). For a longer story about Time’s Up and how Ratner’s suit against Kohler fits into it, see this characteristically superb piece by Dahlia Lithwick.

There were some initial, positive signs that Ratner’s suit wasn’t going to work. Kohler is represented by super lawyer Robbie Kaplan of Kaplan & Company and a great team of other attorneys including Rachel Tuchman, and the district court held that state (California) anti-SLAPP (strategic lawsuit against public participation) law applied to Ratner’s case. Applying California’s anti-SLAPP law is a good thing for Kohler because it requires a plaintiff (here, Ratner) to demonstrate a more significant likelihood of success before the suit can proceed.  Moreover, if a court concludes the plaintiff hasn’t made that demonstration, the suit is dismissed with prejudice, meaning that a plaintiff can’t simply refile it elsewhere and try to include more substantial allegations.

But in a curious—and frankly a little disturbing—order, the district court of Hawaii concluded that Ratner’s suit against Kohler could go forward. Because Ratner is a public figure, and the suit is for defamation, Ratner had to demonstrate that he was likely to succeed in proving not only that Kohler’s accusations were not true but also that she made them with actual malice—with reckless disregard for whether they were true.

The reason why the court’s opinion is troubling is that it comes close to saying that an accusation of rape is always made with actual malice, at least when the person accused of rape denies it. The court concluded that Ratner had alleged actual malice on Kohler's part because:

  • “Plaintiff … claims Defendant Kohler knew her accusation was false.”
  • “Plaintiff … alleges that Defendant Kohler’s statement … was ‘deliberately false and malicious.’"
  • “The Complaint alleges that Defendant made the rape accusation ‘with knowledge of its falsity, maliciously, and with the intention to harm Plaintiff’s reputation and standing.’”

In sum: Because the Defendant stated in the complaint that he had satisfied the legal elements of defamation, the court concluded that he had. But that’s not how allegations in general, and allegations of actual malice in particular, are supposed to work—there are supposed to be facts alleged to substantiate allegations, and facts that support legal conclusions and legal claims. An assertion that the defendant acted with actual malice is an inference. It’s a conclusion you draw from the facts, not a fact in and of itself.

More troubling, however, is that the district court quoted approvingly from another district court case (from Kansas) in which the district court had concluded that the plaintiff adequately alleged that the defendant acted with actual malice when she accused the plaintiff of rape. The district court noted that “because defendant and plaintiff were the only two direct actors in events that either did or did not occur, plaintiff’s claim of falsity supports both that the statement was false and that defendant necessarily knew it was false at the time she said it—because, according to him, it never occurred.”

This reasoning adopts a rule that, in operation, will uniquely disadvantage rape and assault victims, since in rape or assault cases, it is often true that only the victim and the perpetrator are physically present. It will make it harder for victims to defend against retaliatory lawsuits because courts will treat all allegations of rape as having been made with “actual malice” so long as the plaintiff denies the accusation.

The reasoning brings to mind other legal rules that have uniquely disadvantaged rape victims.  For example, there was a time when defense lawyers could freely use a rape victim’s sexual history to discredit her in court (Wigmore’s 1940 evidence treatise explained this rule because of women’s proclivity toward “erotic imagination”).

As Michelle Anderson explained in detail in a piece in the Yale Law Journal, rape law used to be unique in several respects—whereas other crimes had no requirement of a prompt complaint, rape victims had to make a prompt report of a rape, occasionally within three months (this rule was sometimes known as the “hue and cry” requirement); whereas defendants could generally be convicted solely on the basis of a victim’s testimony, a rape conviction required corroborative evidence beyond a victim’s accusations; and juries in rape trials were given a cautionary instruction against believing the victim. As Anderson surmised, these procedural requirements “were supported by the societal notion that women have a tendency to lie about rape and sexual assault.” There are remnants of that antiquated and unsubstantiated belief in the idea that a plaintiff can always establish that a rape allegation was made with actual malice when he denies it.

The we’ll-assume-all-rape-allegations-are-made-with-actual-malice-when-there-is-a-denial reasoning also makes little sense. Just because one person says something is false and the other says it’s true doesn’t mean there isn’t other evidence from which we can make a judgment about whose account is more likely true. Allegations of wrongdoing will sometimes address one-on-one interactions, or occurrences that only the plaintiff and the defendant will know about. But it does not follow that we should throw up our hands and say every allegation was made with actual malice if one person denies it. If I say someone kicked a dog when we were the only two people around, is it fair for a court to say, at the motion to dismiss stage, that the statement was made with actual malice merely because the other person denies it? What if I have hospital or vet records that document injuries to the dog?  

The idea that a plaintiff can establish actual malice from the mere fact that he or she denies an accusation of rape has not received much attention, but it will be a real hurdle to #MeToo and #TimesUp, because it will made it harder for victims to protect themselves against retaliatory lawsuits. It is another example of how #MeToo and #TimesUp must confront legal rules and institutional mechanisms that have made it more difficult to uncover and prevent victimization.



Systemic solutions shouldn’t get lost in anecdotes about powerful men victimizing women, and powerful women being victimized. (For an incredibly well done piece on this issue, see Bec Hamilton’s brave Washington Post op-ed.) While legalisms have enabled the persistence of harassment, they can also help in stopping it.


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