On Efforts to Silence Victims of Sexual Assault and Legal Ethics
Something happened in America in 2017: Thousands of women went public with accounts of their own ordeals as the victims of sexual assault. As a matter of pure logic, it follows that at least some of these claims are false or not entirely true. But it also follows than many of such claims are true. From my perspective, if a woman speaks out about a sexual assault that happened years ago and implicates a powerful man as the perpetrator, she is taking a tremendous risk. If the assault happened years ago, the statute of limitations likely has passed on both civil and criminal charges. Most women speaking out about past sexual assault are not filing civil lawsuits and seeking money. For most such women, money isn’t their motivation. Instead, their goal is a moral one: To tell their story. To let others know what happened to them. And, in some instances, to protect other women from men who are serial sexual predators.
When a rich, powerful man is accused of sexual assault, it is predictable that he will fight to defend his reputation. And men with money and power usually have lawyers, e.g., Harvey Weinstein. The most aggressive legal approach a man can take toward such accusations is to threaten a lawsuit for defamation against the alleged victim unless she recants and maintains her silence. That brings us to the point of this essay.
My contention is this: In such situations, lawyers have a moral, ethical, professional and legal obligation not to pursue such a course of action unless they are entirely certain that the allegations of sexual assault are completely fabricated. I defend that contention as follows:
- I believe that all individuals accused of a crime have the right to counsel and due process. But that is a different situation. Lawyers who represent those accused of crimes are performing an important societal role in ensuring that everyone accused of crimes has counsel and the opportunity to mount a defense. That protects a central value of our justice system. But situations like this do not implicate liberty interests, criminal procedure or due process. We are talking about lawyers who are being paid to threaten the alleged victims with defamation claims unless they recant and remain silent.
- I believe that any lawyer who accepts a particular client engagement should be able to defend the morality of that decision. This does not mean that lawyers should not represent clients that are publicly unpopular. In some instances, there are legitimate moral, ethical and legal reasons to represent an unpopular client. But what about in this context? In this context, I believe a lawyer could morally and ethically represent a client in threatening a defamation lawsuit against an alleged victim, but only if the lawyer was convinced of his client’s innocence. Again, this is not a criminal defense matter. This is a civil matter. Proceeding with such a representation without being certain of the client’s innocence means that the lawyer is assisting a client in silencing a person who the lawyer reasonably believes may have been the victim of sexual assault. There is no legal, ethical or moral justification for such behavior.
- Prior to threatening a defamation lawsuit against an alleged victim of sexual assault for her (or his) public comments, a lawyer has a legal, ethical, moral and professional obligation to conduct a thorough investigation. The lawyer can accept the representation, but must make clear that the first step of the representation is a factual investigation. The lawyer is not signing on and agreeing — up front — to write a cease and desist letter threatening a defamation lawsuit. Any lawyer who agrees to send such a threatening letter without first investigating is, in my view, guilty of violating numerous rules of professional conduct. Unfortunately, many lawyers are more concerned with money than they are with ethics, morality or justice. Many lawyers would happily do this sort of work for financial gain without first conducting any investigation. I believe that prior to sending a cease and desist letter in this specific context, a lawyer is duty bound to conduct the most thorough investigation possible and only proceed with such a threat if he or she is certain that the allegations at issue are completely false. In a sense, I believe this specific situation creates something akin to a heightened ethical, moral and legal obligation for lawyers.
- From a broader perspective: I believe that publicity and public scrutiny plays an important role in improving the legal system. Few things force actors in the legal system to remember their morality and ethics like public scrutiny. Many lawyers routinely do work that is unethical, immoral or contrary to the interests of justice. They offer no legitimate explanation for why they do such work. This is because their sole motivation for accepting such engagements is to make money. Publicity and public scrutiny create a powerful check on such behaviors. It is particularly important in this context. It is highly unlikely that state bar associations will ever discipline lawyers for conduct like the conduct at issue (i.e. threatening the victim of an alleged sexual assault with a defamation case). And there are good reasons for this, because such discipline could have a chilling effect and prevent lawyers from pursuing such representations where they have a legitimate, factual basis for their advocacy. The most effective check on this sort of lawyer behavior is not bar discipline. It is publicity and public scrutiny. It is public debate.
- I broadly support the right to free speech. I believe that free speech and a robust public discourse are both beneficial to and necessary for our society and our democracy. The issues raised in this essay are of tremendous public importance. Everyone has a right to start and participate in a public dialogue on these issues. Even lawyers like me. That includes the right to name names. I will not shut up. I will not go away. I will not back down. I will not stop making critical commentary about the justice system, law, judges, lawyers, litigants and other actors in the system. And to the extent that either my adversaries or the powers that be seek to silence me or restrict my right to continue engaging in such speech, I will fight them all the way to the United States Supreme Court. And I will win.
I was inspired to write this article based on the actions of sports attorney Darren Heitner, who sent my client a cease and desist letter threatening her with a defamation lawsuit. To the extent Mr. Heitner has a contrary view, perhaps he can release his own article explaining that perspective.