Elise Aubuchon felt she owed it to other women to speak out. It was 2020, and #MeToo had prompted countless people to publicly expose those who had harassed and abused them. Years after she says she was raped, and once she realized the police weren’t going to pursue her case, she decided to make a public post on Facebook naming the alleged rapist. “MY VOICE WILL BE HEARD,” she wrote. “THIS IS FOR ALL THE VICTIMS OF THIS SICK MAN!!!!”
She wasn’t planning to pursue legal action; she just wanted to warn others. Instead, it was the man she accused who sued her. Almost immediately after she put up her post, he sent her a letter threatening to sue her for defamation if she didn’t take it down. She refused. She hoped it was just an empty threat. But less than three weeks later, he filed a defamation lawsuit against her, according to court records, and demanded $25,000.
“I felt defeated,” she told The Intercept. She was making $11 an hour and had no resources to fight him off; he already had a lawyer. She scrambled to find one of her own, mining the comments on her Facebook post for people to talk to. When she contacted one, she asked what she could do with little to no money. “It was extremely stressful,” she said, not knowing if she would be able to come up with the funds to defend herself. “It’s really scary. And it just feels like a second attack.”
In the five years since the start of the #MeToo movement, a quiet but effective legal backlash has swept over those who spoke out about sexual harassment and abuse. The accused have turned around and sued their accusers, effectively silencing them.
This silencing is even more acute in the aftermath of the libel judgement in Johnny Depp’s case against Amber Heard, where a jury found that her allegations of abuse in an op-ed — an op-ed that didn’t actually name him — were false. Experts warned that anti-feminist groups were mobilizing to bring defamation suits and that it could make survivors of sexual violence and domestic abuse fearful to come forward. Heard’s own team said the outcome would have a “chilling effect.”
But most victims aren’t Hollywood actresses. These cases are mostly being brought against people with few resources, “who are much more ordinary folks: people who are low-paid workers, people who are young, people who are absolutely not in the spotlight,” said Jennifer Mondino, director of the TIME’S UP Legal Defense Fund, which eventually supported Aubuchon with a grant for legal fees. “For those people it is all the more intimidating to be faced with the possibility of being sued.” Those without the resources to fight these lawsuits off may feel forced to recant their accusations, while the potential of being sued for defamation after speaking out is likely keeping others silent in the first place.
Since the TIME’S UP Legal Defense Fund was launched in 2018 to provide funding and legal support to low-wage and low-income people who have experienced sexual abuse at work, it has awarded 62 grants that directly deal with a victim who was sued for defamation, making up nearly 20 percent of its work over its existence, according to data shared with The Intercept.
That figure is certainly an undercount of how many people it has helped who have faced defamation lawsuits, because the thousands of cases where the defendants were connected to an attorney but not given funding aren’t included, nor are those who were sued for defamation after being awarded funding. Since its inception in January 2018, the fund has given over $13 million to victims of workplace harassment to cover attorneys’ fees and fund public relations support. An individual case can receive anywhere from a few thousands of dollars to hundreds of thousands for ongoing litigation.
Retaliation is a common experience for people who speak up about sexual harassment. But “increasingly we are seeing defamation suits be a way that people are retaliated against,” Mondino said.
Kenneth White, a partner at law firm Brown White & Osborn, used to get only the occasional request for help with a defamation case after writing and speaking frequently about such cases. “Over the last, I would say, five years I really saw a significant increase in the number of these that had to do with women being threatened for speaking or writing about some form of abuse,” he said. Being labeled as a harasser or rapist carries more reputational damage than it used to, thanks to #MeToo. This is a way for abusers to try to claw back that lost status.
Stephanie Holt, deputy director of operations at the Victim Rights Law Center, has seen the same. Five years ago, it was “pretty rare” to even get a letter threatening defamation, she said. But now she’s getting many calls from people who have gotten a letter demanding that they take down a post or stop speaking about what happened to them, or face a lawsuit.
According to her legal complaint, which she filed in response to the defamation lawsuit, Aubuchon was raped at work only a few days on the job. At age 18, she had worked a number of low-paid positions — from preschool assistant teacher to hair salon receptionist — never making more than $11 an hour, so in the summer of 2018, she took a server job at a strip club to earn better pay. That day, a regular customer who frequently bought everyone drinks came into the club. Even though she was underage, she claimed her manager encouraged her to drink alcohol offered by customers, so she did. She quickly felt “really dizzy,” she said, and suspects that she may have been drugged. According to the complaint, that’s when her manager told her to come to a “secluded” room and penetrated her with his penis.
The manager has said that the sex was consensual and denied the other allegations.
A co-worker gave Aubuchon a baby wipe to clean herself up and she went home, according to her complaint. She never returned to work, and she claimed that she wasn’t paid for any of the days she worked. The next day, she decided to report what had happened to her to the police and submitted to a rape kit. She was told the kit would come back in eight to 12 weeks, she told The Intercept. But she kept calling and kept being told it hadn’t come back. When she called back a year later, she was told it had come back negative for evidence of sexual activity and she says she was told there was nothing the police could do.
She went about her life, she said, until the detective on her case called a year later to ask if she wanted the clothes they had taken for evidence back. “In my head I was like, ‘No, I don’t want those,’” she said. “‘You guys didn’t help me, I don’t freaking want those.’” That was when she decided she had to speak out. “I really was just looking for his face to be out there and make sure that nobody else gets put in that situation, especially with him,” she said. “Because I don’t want that to happen to somebody else.”
When her former manager then sued her, Aubuchon was still “not financially stable,” she said. “I had nothing. It’s not like I had money, it’s not like I had things to use against him,” she said. Her accused rapist, on the other hand, had a lawyer and “all these things that I didn’t have. It was just really discouraging.”
It also meant she had to keep reliving what had happened to her, recounting the story over and over again to lawyers, after she had just started to get better at not thinking about it. She had to take time off of work: both to deal with all the meetings with lawyers and court dates, as well as to protect her mental health. She had to drive a half-hour each way just to meet with her own lawyer. It was like “being tortured,” she said. He had already “ruined” her life, she said. “He was just continuing to do it over and over again.” In September 2021, both her former manager’s and her case were dismissed “upon stipulation of the parties.”
Being sued is “mysterious and scary” as well as “incomprehensively expensive,” White noted. It takes a lot of time and resources to get an attorney and fight a defamation suit. The threats and suits often include demands for huge amounts of money.
“That is why people use it as a weapon — because it is so intimidating.”
The legal hell is a motivation for abusers to file defamation cases. “That is why people use it as a weapon — because it is so intimidating,” Mondino said. “It becomes one of the plays in the playbook.” Mark Goldowitz, a lawyer and founder of the California Anti-SLAPP Project, agreed, saying it fits into the DARVO pattern — deny, attack, reverse victim and offender, a common reaction from perpetrators of sexual violence when they’re outed — by framing the accused as the actual victims.
Sexual harassment and assault are already about an abuser exerting power over his victim. Suing the victim for defamation, Mondino agreed, is “another exertion of power.”
A few months after Ashley Longhorn began working as a corrections officer at the Eastern Oregon Corrections Institution in early 2020, she alleges in a complaint that she filed against the Oregon Department of Corrections, a more senior officer lured her to his home under false pretenses. He had offered to make her a box to help her disbud her baby goats, but told her she had to pick it up at his house. Once there, he told her to sit on the bed with him and began kissing and touching her. He continued even after she told her to stop, then got on top of her and pressed his hand down on her throat. Trapping her under his body, her complaint alleges, he forced off her pants and penetrated her vagina with his fingers.
After she told a superior at the company about what happened, her assailant began stalking her at work, she alleges, barraging her with texts and calls, watching her at work, and asking co-workers about her. Her co-workers started to spread rumors about her, and she ended up forced to take unpaid leave for PTSD and anxiety and switching to a graveyard shift to avoid harassment.
Her assailant was indicted by a grand jury for her assault and arrested at work in December of that year. But after the case was transferred to a new prosecutor with no expertise in sex crimes, he declined to prosecute her assailant, telling her she should have fought him off, her complaint states. Five months later, her assailant sued her for defamation for telling co-workers and the authorities that he had assaulted her, seeking over $500,000 in damages and attorney’s fees, according to his filing. The case was voluntarily dismissed but not until January of this year, nearly two years after he sued her, according to the judge’s order. He didn’t have to pay her back for the fees she had paid to her attorney to fight off his suit.
When a defamation case is directed at people without means “sometimes” taking down the post or retracting their story is “the economically rational thing to do,” White said — even when the threat holds no legal weight.
People have called Holt, of the Victim Rights Law Center, after getting a letter threatening to sue them for defamation for speaking to the police — which is protected. “It is OK to report to police no matter your situation,” she said. But she worries that the people who don’t know to call her or another lawyer won’t know that: “Not everyone is going to make it to my office or another legal office to get advice.”
Goldowitz worked with a client who was sued by her rapist in retaliation for speaking out about what happened, but other women who could have bolstered her case didn’t want to get involved because they were afraid of being sued too. “It does ripple out,” he said.
As a lobbyist in California, Pamela Lopez was no stranger to inappropriate behavior. “Sexual harassment was endemic to the political environment,” she said. When she was first starting out in her career, an official at a state agency she needed to speak to on behalf of her clients sent her an email saying he had a foot fetish and would only meet with her if she had lunch with him while wearing open-toed sandals. “Everybody kind of ignored it and looked the other way,” she said.
Then in 2016, she says, Democratic Assembly Member Matt Dababneh followed her into the bathroom at a co-ed bachelor party and masturbated in front of her, demanding that she touch him. She refused. She alleges that he ejaculated into the toilet, and as he left the bathroom, he told her not to tell anyone. “It was just absolutely terrifying,” she said.
At first, Lopez didn’t want anyone to know what had happened to her because she assumed she would be the one who would be punished professionally. “Somehow I will be blamed for this,” she recalled thinking. “I will be slut-shamed, people will not believe me.” That changed as #MeToo started to take off. “There is strength in numbers,” she said. She “wanted to make sure that the person who had hurt me did not potentially go on to hurt others.” She eventually named him in a 2017 Los Angeles Times article and filed a formal complaint with the state Assembly. (An Assembly committee eventually found that he “more likely than not” exposed himself to her). She held a press conference around the same time to announce the complaint.
Nine months later, Dababneh sued her for defamation. He has always denied her allegations. His lawyers did not return a request for comment.
Lopez had already spent hours of valuable time helping the California legislature with an investigation into sexual harassment and supporting other women who came forward. “I was ready to be done. And then finding out the lawsuit had been filed and just thinking, ‘Jesus, this is going to be years,’” she recalled.
She spent 15 to 20 hours each week for a year and a half, she estimates, working on the case, time that would otherwise have been spent making money from clients. She didn’t have many resources to fight his lawsuit. “It was like making a bet with somebody where you don’t really have the money to back it up, so you hope you win,” she said. She kept $10,000 in cash hidden away in her house in case Dababneh was successful. She and her husband delayed buying a house or even setting up a college savings account for their young son, in case he tried to take those. “They were absolutely out for blood and I knew it,” she said. They even put off having a second child “because we didn’t know what the future was going to hold,” she said.
Her son was 7 months old when she first came forward. “He’s now almost completed his first year of kindergarten. His whole childhood this thing has been going on,” she said. Every milestone — his first Christmas, his first birthday, the first day of preschool — were clouded by having the case in the back of her mind.
Lopez eventually prevailed. A judge found in her favor in October 2021, throwing Dababneh’s defamation case out on grounds that her statements were protected speech and ordering him to pay her attorney fees. But she still worries that he’ll come after her, even after the victory. “As strong as I am, and as confident as I am, I’m still afraid,” she said.
Lopez had something on her side: California’s anti-SLAPP law, the strongest in the country. SLAPP stands for Strategic Lawsuit Against Public Participation and refers to lawsuits that are meant to silence speech that’s protected by the First Amendment, state constitutions, and other statutes.
State anti-SLAPP laws give people “an ability to fight back,” Goldowitz said. Defendants are able to ask courts to dismiss lawsuits earlier in the process. Unlike regular motions to dismiss or requests for summary judgment at the start of other kinds of lawsuits, people fighting SLAPP suits are allowed to offer evidence not contained in the complaint against them.
The burden shifts to the plaintiff, who has to show evidence that he is likely to win. Lawyers are more likely to take these cases on a pro bono basis given that most anti-SLAPP laws have a provision ensuring that, if a defendant prevails, the plaintiff will cover the attorney fees. Other provisions ensure a defendant won’t be forced to produce documents or other evidence at the same time that they’re trying to defend against a defamation lawsuit. Strong laws also allow for an immediate appeal if the defendant loses. “They’re immensely helpful,” Goldowitz said.
Anti-SLAPP laws have been proliferating across the country, in part spurred by the experience of sexual harassment victims. “That’s something that really came out of the #MeToo movement,” Mondino said. Twelve states have either passed new laws or strengthened their existing ones since 2017.
California, which already has a strong anti-SLAPP law, also has a pending bill that would clarify that a complaint of sexual assault, harassment, or discrimination is protected from claims of libel or defamation. That would have been a huge help to Lopez, given that Dababneh sued her for talking about her complaint against him at a press conference. If this law had existed and the first judge on her case had found in her favor, “it would have shortened by years the amount of time I spent involved in this defamation fight,” she said.
But 18 states still don’t have anti-SLAPP on the books at all. A strong federal law would extend these protections to everyone. Last year Rep. Jamie Raskin, D-Md., introduced a bill that would create just such a law.
“People who speak out about anything from sexual harassment to toxic [environmental] contamination to corporate corruption have faced extremely expensive and overwhelming litigation costs when a deep pocketed adversary decides to go after them,” Raskin told The Intercept. “This is a more and more common situation.”
While he admitted his legislation is “not a panacea” and can’t prevent a defamation case from being filed against a victims of sexual harassment or assault, the bill would allow a court to “quickly move to dismiss it and also put the costs of defense on the person falsely claiming defamation.”
The bill has yet to get a hearing, let alone a vote. Democrats are “generally supportive,” he said, but may need to be educated about SLAPP suits; Republicans oppose it.
There are also limits to what these laws can accomplish. Because the legal terrain is so varied across the country — and this is a very specific area of the law — it’s hard to find lawyers who can represent people fending off defamation claims, Mondino said. Even her network of employment lawyers often “don’t know how to handle defamation suits,” she said. “We often have a difficult time finding lawyers who can consult about this because it is so specialized.”
And even in a state with a strong anti-SLAPP law, it can still cost tens of thousands of dollars to pay a lawyer to file an anti-SLAPP motion, White, the law firm partner, estimated. There are only so many willing to do it pro bono. “For the average person, it is really going to be cost-prohibitive,” Holt said.
“People always think, ‘If I’m telling the truth, this will all be OK for me,’” Holt said. “They underestimate how much time, effort, and emotional damage that a defamation suit can do.”