The Misuse of Defamation Suits in Sexual Harassment Cases.
Defamation is Misused, When Predators File Cases to Silence Victims of Sexual Harassment.
Legal loopholes exist aplenty in the world of criminal and civil law cases of sexual harassment. One such loophole is the defamation suit, filed by defendants against plaintiffs, who are already accusing the defendant of having sexually harassed them. This suit enables the defendant to accuse the victim of having slandered their character by making such claims. Often, such cases are filed by defendants who are in the public domain, and who have careers that involve frequent interactions with the public.
One example of a defamation case filed against a plaintiff, who accused a defendant of sexual harassment exists in Pakistan. Singer-songwriter, and actress Meesha Shafi — known for her work in Mira Nair’s The Reluctant Fundamentalist — — revealed that Ali Zafar, a fellow singer, had sexually harassed her. Several other women followed suit, revealing numerous interactions of harassment on multiple occasions. Shafi had said that Zafar harassed her on more than one occasion, as did fellow victim, Leena Ghani — an established make-up artiste in Pakistan. Zafar retaliated with a case of defamation, claiming 1 billion rupees (equivalent to 10 million U.S. dollars in 2019) in “damages to his professional reputation” against Shafi. After naming other defendants, such as Ghani, some of his victims retracted their statements. Others chose to pursue their case further, such as Ghani, who remains a defendant in the case.
Zafar utilized a powerful loophole, that worked as a silencer of victims. If he had not filed a defamation case, his victims would have likely filed against him for sexual harassment. That he used this tactic to silence his victims, and also enabled him to utilize the legal route to discredit them before they even received justice for their suffering. It prevented them from filing again in court, save for the counter-claim that Zafar was the one who had defamed their reputation, and not the other way around. Ali Zafar was able to use his legal case to make tearful media appearances, claiming that his victims were using their experiences for fame and fortune. He also utilized his legal claims to allege that his victims had in fact, tried to flee the country when confronted about their experiences.
It is noteworthy that in legal loopholes such as this, one can make the claim of defamation against virtually anyone, to request them to provide proof of their claim. This proof, when not provided in a tangible manner, then leads to counteractive legal action against the defendant, holding them liable for having defamed the claimant. In the case of sexual harassment, until it is recorded, physically in audiovisual format, or through witness statements, it cannot be proven in a court of law. This loophole is exploited by predators, who routinely file their defamation cases and create counter-arguments to the tune of “lack of evidence”.
Sexual harassment is a crime that predators get away with due to this loophole, and retaliate, because of this loophole. Investigating its occurrence is less sophisticated than sexual assault, which is investigated through DNA samples, victim anatomical features, and audiovisual evidence. Harassment is investigated solely through the presence of audiovisual evidence if it is available in the first place. A verbal encounter between a predator and a victim could be held in an environment devoid of cameras or audio recording devices. It could be held in areas where CCTV footage cannot be taken.
Sexual harassment, thus, needs to have legal protection from retaliatory defamation suits, particularly those that are filed by predators who are seeking solely to silence victims for their reputation. These suits are not productive, and in fact, are harmful to the victim’s ability to seek restorative justice for their grievances. The legal recourse for victims in the law is made negligible through the use of sexual harassment cases which deny the victim agency in their own pursuit of justice.
