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How to Make #MeToo Offenders Pay

Scores of strategies are available to lawmakers that would protect survivors of sexual abuse from defamation lawsuits aimed at silencing them. These suits have the potential to be ruled as SLAPP suits, or strategic lawsuits against public participation, which are legal actions aimed at preventing complainants from publicizing their stories. Where anti-SLAPP statutes exist, defendants can file a motion charging that the plaintiff’s suit meets the criteria for a SLAPP suit, and therefore ought to be dismissed. But anti-SLAPP protections are available only in certain districts. Liz Chacko, a senior counsel at the National Women’s Law Center, told me during a recent phone call that only 35 states and territories have anti-SLAPP statutes, and some of these laws are weak: Dorsey said that the anti-SLAPP statute in Virginia, where Wright’s suit was filed, isn’t strong enough to be helpful in her case. Retaliatory defamation suits are “just a tool to exploit the power imbalance between survivors” and the people they accuse, Chacko said. She laid out a three-point plan for reducing the impact of these complaints. First, all states should enact comprehensive anti-SLAPP laws. Chacko also suggested that Congress enact a federal anti-SLAPP law, which would apply to retaliation in cases of sexual harassment.

Then comes the possibility of fee-shifting, a practice that would saddle abusers with the costs of their defamation suits. At the moment, there isn’t much to deter the accused from filing complaints against victims who speak out. “These men don’t really expect to win,” Chacko told me. “They just know it’s costly and distorts reality.” Statutes that require the losing party to pay the prevailing party’s attorneys’ fees could give abusers cause to think before rushing into defamation litigation. (Many such provisions already exist in law—losers in civil-rights cases, for example, are sometimes required to pay winners’ fees.)