Maryland Sen. Sara Love (D-Dist. 16) was surprised when she learned there is a loophole in state law that allows survivors of sexual assault to be held liable for coming forward with allegations against their assailants.
“There’s this whole cottage industry out there of lawyers who are seeking to represent people that have been accused of sexual assault,” Love said. “There’s this abusive litigation tactic where assaulters sue their victims for defamation, intentional infliction of emotional distress, interference with a contract, any tort that they can come up with. It really has the effect of silencing victims because they don’t want to come forward.”
That’s why Love, who represents Bethesda in the Maryland General Assembly, is sponsoring the Stop Silencing Survivors Act, which would change state law so that a person who “in good faith discloses information about allegations of sexually assaultive behavior may not be held liable for the disclosure,” according to the bill.
“Only about a third of sexual assaults are reported, and we want them to be reported, but these lawsuits squash all the work that we’re doing to get victims to come forth and report them, because now they’re afraid of being sued,” Love said.
According to the National Women’s Law Center (NWLC), most survivors never come forward, often due to fear of retaliation. Only 2% of high school students report sexual assaults, 10% to 12% of college students report assaults and just 6% to 13% of survivors report assaults that occur at their workplaces. One of the biggest reasons survivors stay silent is fear of retaliation, according to NWLC.
“While rapists and abusers do not typically expect to win, their baseless lawsuits operate to ensure their victims remain silent or coerce their victims into withdrawing their reports of sexual assault … a typical meritless defamation lawsuit still costs $21,000 to $55,000 to defeat and can easily soar into six or seven figures,” NWLC wrote in testimony in support of the bill. “Moreover, these lawsuits force survivors to disclose intensely private details and to repeatedly relive their trauma through invasive discovery and other litigation demands.”
The bill would not prevent individuals accused of sexual assault from filing lawsuits against alleged survivors, according to Love. However, the burden of proof would be placed on the person filing the suit to prove they are not guilty of the sexual assault allegations, as opposed to the alleged survivor having to prove they were assaulted. The bill is also written so that defendants, meaning sexual assault survivors being accused of defamation, would have their legal fees covered.
“We want to make sure that people have the right to go to court, but we also want to make sure that they’re not just engaging in abusive litigation,” Love said. “So we took the language from our current law that protects employers who give references about former employees, and that’s the language that we use.”
The Silver Spring-based Maryland Coalition Against Sexual Assault (MCASA) is also backing the legislation. The non-profit membership organization includes the state’s 17 rape crisis centers as well as the Sexual Assault Legal Institute. According to MCASA, sexual assault is one of the most underreported crimes in Maryland and throughout the nation.
“Abusers can sue their victims for sharing their experiences, forcing them to prove their statements are the truth in court or pay damages,” the organization wrote in testimony to the General Assembly. “[Love’s bill] would change this and create a balance between encouraging survivors to come forward and maintaining access to the courts for someone wrongly accused.”
Lisae Jordan, executive director and counsel for MCASA, told Bethesda Today on Friday that loopholes like the one in Maryland law can prevent survivors from coming forward with allegations against perpetrators of sexual assault.
“Coming forward is difficult in any event, and sexual assault is the most under reported crime, and so people are already feeling nervous. They often feel a sense of shame and scared,” Jordan said. “When they reach out for help and learn that one of the things they’re risking is a civil lawsuit, that really adds to that burden and makes people feel more reluctant to come forward.”
Jordan shared the story of a MCASA client who was sexually assaulted by a doctor at a clinic in Prince George’s County. The client didn’t share her story until she saw a local prosecutor on TV asking for victims to come forward. A court ordered the doctor to give up his medical license. Years later, she was served with a civil lawsuit filed by the doctor alleging defamation, malicious prosecution, intentional infliction of emotional distress, interference with a contract and other causes of action.
“That’s a classic example of someone who is really responding to a community need — let’s get this sex offender off the street and out of our community — and then is being sued,” Jordan said. “It’s important to understand how horrible this is.”
In another instance Jordan shared, an MCASA client who was a college student was sexually assaulted off campus by another student. Her school investigated and found that the sexual assault occurred. The survivor chose not to pursue criminal charges and wanted the assailant to stay away until she finished school. But the assailant sued her and the school, and she was unable to afford legal counsel.
“It’s an unreasonable burden the way it’s structured right now in Maryland. Sen. Love’s bill really changes things,” Jordan said. “Instead of forcing the survivor to prove that this is true and it really happened, it places the burden on the litigant who is suing and says you need to prove that this is actually false.”
The Senate Judicial Proceedings Committee held a hearing Feb. 6 on the proposed legislation, which has not yet been scheduled for a vote in the committee. The bill is cross-filed in the House by Del. J. Sandy Bartlett (D-Dist. 32), who represents Anne Arundel County.
Jordan encouraged anyone who wants more information about their legal rights as a survivor of sexual assault to contact Sexual Assault Legal Institute at 301-565-2277.
