Wrongly accused? It’s not easy to set the record straight

Paul Haggis, Charles Dutoit, Patrick Brown — this is just a partial list of prominent Canadians who have been accused of sexual misconduct in recent days.

All have categorically denied the allegations and indicated, in one way or another, that they will “defend themselves.”

During his brief news conference, Brown said, “I have instructed my attorneys to ensure that these allegations are addressed where they should be: in a court of law.”

But where there have been no criminal charges laid, and no civil lawsuit commenced, what does that mean? And how does one defend himself or herself against such allegations if they are false?

The law provides few roads to redemption for those falsely or improperly accused of sexual transgressions, but there are options out there.

Where falsehoods have been written or spoken about a person, and those comments “tend to lower” that person’s reputation “in the estimation of others,” that person can sue for defamation. But defamation is hard to prove, often because of the subjectivity involved in assessing how a given statement might impact the “right-thinking public.”

There are also numerous defences — including justification, fair comment, privilege, responsible journalism — that make defamation cases especially difficult to win.

Still, these obstacles would seem to melt away for a household name who has been falsely or recklessly called out for a public shaming. After all, sexual misconduct by those with “power” is universally reviled (as it should be) and those who commit such acts, especially in the #MeToo era, are swiftly dishonoured/dismissed/defrocked, etc. — sometimes within the span of single news cycle.

So there is no question that, for the hypothetically defamed offender, punishment is swift and damage to reputation is long-standing.

Just ask former Alabama senatorial candidate Roy Moore who, before numerous women came forward with cred- ible allegations of not just sexual improprieties, but also horrendous criminal acts, was riding high in the polls. Once the allegations had fully surfaced, Moore dropped like a lead balloon and eventually lost to now-Senator Doug Jones.

One might reasonably expect that candidate Moore or oft-accused candidate Donald Trump, if they were truly being smeared, would have launched defamation suits.

But neither did and none of the famous Canadians accused recently have (although in fairness to Brown, the allegations are quite fresh). Where there are criminal charges laid, a wrongly accused offender can also potentially sue for malicious prosecution, or extortion if false allegations were tied to demands for money. Haggis has gone down this road, counter-suing for extortion, but few other prominent accused parties have.

Can we conclude then that all the platitudes we hear about “defending these allegations to the fullest extent of the law” are just a bunch of malarkey? Perhaps, but there may be other reasons for not suing. The accused wrongdoer, even if “innocent,” may not want to generate more attention or headlines, especially if they are going with an out-of-sight, outof-mind P.R. strategy.

Defamation and malicious prosecution lawsuits, like all civil suits, are subject to rules of civil procedure, which require disclosure of documents and “examinations for discovery” where the alleged victim can probe for details of the public figure’s personal life, sexual history, extramarital affairs, and so on.

Put in this context, the actor or politician crying foul may take a pass on suing not only because the allegations are actually true, but because there are far worse transgressions that may come to light in a courtroom.

Ultimately very few of these cases will be addressed “in a court of law.” But for the truly wrongly accused and vilified, litigators across North America continue to stand by.