One morning five years ago, Jane Wilson* called her best friend. She needed to talk—she’d been assaulted by an acquaintance of hers, a writer, the night before. Initially she kept the circle of people who knew what had happened very small. “I wasn’t, you know, advertising, because it’s sort of a private matter,” she says. But then the person who had assaulted Wilson published a piece that was being lauded by feminists. Her friends started sharing the piece on social media. It freaked Wilson out. She sent a few emails to people she’d seen sharing it, and told others in person. “I just kind of lost it, and I started talking,” she says. “I just started telling people what he had done.”
Wilson didn’t publish a story about what happened to her. She didn’t allude to it in a piece of fiction, or talk about it on the radio. She just told people in her community what she’d experienced.
Not long after, Wilson checked her email—she’d received a cease and desist letter.
“We tell ourselves stories in order to live,” starts Joan Didion’s essay “The White Album.” The phrase has become cliché because it’s powerful, speaking to an essential truth: we tell stories about ourselves to try to make sense of our lives, so that even the worst, most random events fit, eventually, into an overarching narrative. Little wonder that we tell stories about sexual assault—a traumatic, cruel, deeply personal violation, resulting often in physical injuries, and, later, psychological after-effects such as PTSD, depression and anxiety.
Dr. Abby Hershler, a staff psychiatrist at the Women’s College Hospital in Toronto, says the instinct to tell stories of sexual assaults comes from wanting catharsis. “I think there’s a hope to get... support,” says Hershler, who works with patients who have experienced trauma. “I think there’s a hope that if you tell your story very quickly, that somehow you’ll be getting rid of it, that you’ll be no longer almost imprisoned by the memory of that story.”
Hershler’s words echo those of Evelyn Lau, a young writer who published an account of her relationship with W.P. Kinsella in Vancouver Magazine in 1997. Kinsella was thirty-six years older than Lau, and the relationship had ended after two years. Lau didn’t accuse him of assault, but the fallout from her essay was one early sign that Canadian women publicly discussing troubling aspects of their sex and dating lives could find themselves in court. Kinsella, who is now deceased, sued Lau, saying in his statement of claim “that he’d been humiliated and embarrassed by references to his sexual abilities, financial aptitude and social skills,” the Vancouver Sun reported in 1999.
“In writing [the Vancouver Magazine piece],” Lau recalled in another essay in 2001, “I had been hoping to make sense of my time with him, redeem something that felt merely painful and wasted.”
Stories like Lau’s, like Wilson’s, like those of Hershler’s patients, have the power to change society—and the past few years have made that clearer than ever. In 2014, the Toronto Star reported that eight women said former CBC host Jian Ghomeshi had sexually assaulted them. The Star’s reporting led to criminal charges against Ghomeshi. Ghomeshi was found not guilty on all counts, though he agreed to a peace bond and apologized to one woman. Still, this kind of reporting was a forerunner for some of the in-depth investigative journalism that was to come, and not just in Canada. After Roger Ailes resigned as chairman and CEO of Fox News, following a number of sexual harassment complaints that were made public, one story seemed to snowball into another—most dramatically, the New Yorker’s and the New York Times’s reporting on sexual assault allegations against former film executive Harvey Weinstein, which led to criminal charges against him and his dismissal from his own company.
But coming forward has always carried a risk. Lau keenly felt the impact of the libel suit brought by Kinsella. “Now the prospect of writing was repulsive to me,” she wrote two years later in “Anatomy of a Lawsuit,” an essay about being sued. “I kept thinking that anything I might write would lead to other losses; the effect was feelings of defeat and inertia.”
For Wilson, the cease and desist letter essentially reads that the man she says assaulted her, and his lawyer, had heard she’d been talking about the allegations and that she shouldn’t talk about them anymore. She remembers it being “fairly terrifying.” “I certainly never expected it,” she says. “I don’t know why I didn’t expect it.” Wilson listened to the letter: for some time, she stopped telling the story of what happened to her.
Accusing someone of sexual assault is inherently defamatory, and proving your actions were justified can be challenging and costly. More than that, these legal threats have come to wield greater power than just the outcome of the individual cases they concern: the power to suppress others. Just the threat of being sued may mean someone will fear telling their story to reporters, coworkers, friends—or even their family. For many people, the trauma of assault is followed by the secondary trauma of coerced silence.
In 1903, Van Vechten Veeder, then a lawyer and later a U.S. federal judge, attempted to untangle the deep roots of defamation law, which he found had grown unfettered. He traced the laws back to principles handed down from the church and secular authorities: pick a historical civilization and you will find it had some sort of law or code against injuring another’s reputation. The resulting laws were “a mass, which is grown by aggregation, with very little intervention from legislation, and special and peculiar circumstances have from time to time shaped its varying course,” he wrote later in the Columbia Law Review. “The result is that perhaps no other branch of law is as open to criticism for its doubts and difficulties, its meaningless and grotesque anomalies. It is, as a whole, absurd in theory, and very often mischievous in its practical operation.”
Defamation law made its way to Canada via the English and has been refined over the years in Canadian courts. In Canada, defamation is broadly defined as any communication that hurts a person’s reputation—and it can be invoked by anyone. In one recent Ontario case, two sisters and their father told family members, friends and a therapist about childhood abuse allegedly perpetrated by the sisters’ uncle. The uncle sued all three, and the judge in the case found in his favour.
Justin Safayeni, an associate lawyer at Stockwoods LLP who focuses on media and defamation law, notes that in some cases, all that is needed to defend a defamation case is to show the court that the statements made wouldn’t make reasonable people think less of the person in question. “It’s hard to imagine any situation where that’s going to work in the context of sexual assault claims, right?” Safayeni says. “The accusation is so damaging to reputational interests.”
There’s no way to track how many defamation cases have been brought or threatened against people alleging sexual assault in Canada; while there are public records of cases that make it to trial, no one is tracking the number of those that stop at a cease and desist letter, or that are settled out of court. But Elizabeth Grace, a partner at Lerners LLP in Toronto, says she believes that because more people are now coming forward, we will see an increase in defamation suits. This has always been one of the strategies a person can use, after all, when accused of assault, either as a counterclaim in the event that the complainant decides to sue, or proactively, as a way of stopping the allegations before they even make it to court.
There are, of course, other legal defences to defamation aside from claiming there was no reputational harm. If you can prove what you said is true, it’s not defamation. If you are expressing an opinion about someone, however harsh, as long as it’s based on fact and not done maliciously, it’s not defamation. If the untrue statement was thoroughly reported, contextualized, and the other party had an opportunity to respond, that’s not defamation, either. Statements made in the course of criminal, quasi-judicial proceedings and in sessions of Parliament are protected by absolute privilege — so, not defamatory.
And then there is the defence of qualified privilege. “The situation in which qualified privilege arises is when the words are spoken by someone who has a duty or an interest in making the communication and communicating the words to someone who has a corresponding duty or interest to receive them,” says Andrea Gonsalves, a partner at Stockwoods. The same words could be spoken in one situation and be protected by qualified privilege, notes Gonsalves, and be defamatory in another.
The defence of qualified privilege has extended to family members or friends in some cases—but it depends on the circumstances. In the Ontario case involving the uncle, the judge ruled that the defence of qualified privilege did not apply because the sisters’ statements had not been made “under a situation of any stress or urgency.” He wrote in his decision, “I am convinced that the statements were not reasonably intended to prevent further sexual abuse to other children.” Instead, he found that the uncle was entitled to general damages of $125,000 with costs. (If he had ruled in the sisters’ favour, the judge wrote, he would have awarded them $35,000 in general damages.)
After the decision was announced in 2013, Grace told Law Times that it would start a trend. “It certainly will give defence counsel reason to start counterclaims for defamation,” she said. Another lawyer, Susan Vella, also told Law Times that the court was sending a “problematic message” in the differential in general damages in a sexual abuse case.
However, in a later Ontario case where a woman had told family members about abuse, the judge did accept the defence of qualified privilege. “These types of communications to family members and others with a legitimate reason to receive them have been found to enjoy the mantle of qualified privilege in the context of allegations of familial CSA [child sexual abuse],” the judge wrote, rejecting the more narrow interpretation of the law made in the older Ontario case.
Beyond qualified privilege, many advocates say that it is clear that today, reporting on sexual assault is often a matter of public interest. “People are winning Pulitzers reporting on this stuff,” says Safayeni. Following that, both he and Gonsalves are also interested in another tool that could help: anti-SLAPP (Strategic Lawsuits Against Public Participation) laws, which give the courts the power to dismiss frivolous lawsuits filed primarily with the goal of silencing dissent.
Gonsalves and Safayani think that this law could be used to counter defamation in court when allegations of sexual assault are at the heart of the matter. (In May, British Columbia introduced anti-SLAPP legislation; the legislation is also in place in Ontario and Quebec). According to Safayeni, the threshold test for using anti-SLAPP as a defence is whether the expression made by a person relates to a matter of public interest.
In Ontario, no defamation case involving sexual assault allegations has been defended with anti-SLAPP—yet. “There is definitely a case to be made. Frankly, I think a pretty strong case that there is a broader public interest in having some of these stories come to light,” says Safayeni. But it could be some time before we see a case that sets a new precedent—some defamation cases are settled out of court, some are dropped altogether, and many end at a cease and desist letter.
Wilson calls herself fortunate, because she had friends who were able to help her get legal representation—she couldn’t afford it on her own. Her lawyers asked her to go through old Facebook posts and tweets to see if there might be anything in them that would be considered defamatory. They also told her that cease and desists are common and counselled her to respond in kind, with something like, “‘We believe what we are saying and we have lawyers and if you would like to continue this, we will counter,’” Wilson says.
In an ideal world, Grace says, women would have this kind of information available to them before they spoke out. “[If] we just slowed things down a little bit and armed people with information so they can make informed choices, they could realize that there are ways of doing things, ways of getting help,” she says.
But it’s not an ideal world, and people lack many kinds of legal advice after a sexual assault—one reason, ironically, that they often opt for the so-called court of public opinion in the first place. Statistics Canada found that between 2009 and 2014, only 21 percent of reported sexual assaults led to completed criminal cases, and it is estimated that just 5 percent of all sexual assaults are reported to police. A recent Toronto Star series found that Legal Aid Ontario funding isn’t accessible for many impoverished people because the income thresholds for receiving aid are so low. “It’d be nice if there was legal advice and access to justice,” says Grace. “It’d be nice if there was health care, and access to therapy and counselling, but all our systems—legal support systems, mental health support systems—they’re all under strain and I think that’s another reason why people will sometimes resort to the internet or the media.”
There are some initiatives trying to address these gaps in justice services, such as a $2.8 million pilot project in Ontario that provides vouchers for sexual assault complainants in Toronto, Ottawa and Thunder Bay to get up to four hours of free legal advice, as well as a few small legal defence funds established to raise money for people who have received legal threats. But the reality is that legal help is hard to find for people who receive cease and desist letters, let alone those who are sued.
Lau’s lawsuit was settled when Vancouver Magazine agreed to publish an apology. But nearly twenty years later, she has seen a permanent change in her life: she now exclusively writes poetry. “Prior to the lawsuit I had always gone back and forth between fiction, non-fiction and poetry,” Lau says in a written comment provided to Maisonneuve. Poetry, she says, “gives a writer great freedom; it has a tiny readership and isn’t subject to the same scrutiny as memoir or fiction. In some ways it allows you to be more honest and take more emotional risks.”
Today, Canada’s public conversation about high-profile men accused of sexual wrongdoing is also still being circumscribed by legal threats, though few following the debates have been aware of it. Chelsea Rooney studied creative writing at the University of British Columbia, where the novelist Steven Galloway then worked as a creative writing teacher. She graduated in 2012, a year before Galloway was made a tenured professor and chair of the creative writing program. Galloway was accused of sexual misconduct, suspended in 2015, and eventually fired. (An investigator hired by UBC concluded the assault complaints couldn’t be substantiated, but UBC decided to dismiss Galloway anyway. In June, Galloway was awarded $167,000 in damages by an arbitrator who found that UBC communications had “contravened Mr. Galloway’s privacy rights and caused harm to his reputation.”)
A 2016 Globe and Mail article, “Under a Cloud,” detailed how the UBC investigation unfolded and how it affected two complainants who had agreed to be identified publicly, including Rooney. On October 28, 2016, the day the article was published, Rooney tweeted the link, adding a note about the most serious allegation that had been made against Galloway. She later received a cease and desist letter from Galloway’s legal representative, threatening legal action if she didn’t delete the tweet and apologize. Rooney deleted it. “Cease and desists do what they’re supposed to,” she says. “They intimidate and silence.”
Media plays—or can play, when it chooses—a crucial role in this environment. When a person tells their own story under their own name, whether on social media or in an essay or memoir, they take the brunt of the fallout. That can be mitigated, somewhat, if they choose instead to take their story to a third party—a disinterested reporter can ask the questions that would later allow a defendant to invoke a defence of responsible communication. Theoretically anyone could do this, even in telling their own story, but that would mean a victim would have to go back to the person they were accusing to ask for comment. “Journalists can do that work in a way that it may be extremely uncomfortable—awkward, if not impossible—for a survivor to do if they were to publish it on their own,” Safayeni says.
When Globe and Mail investigative reporter Robyn Doolittle worked on her groundbreaking investigation “Unfounded,” which concluded that police dismiss, on average, one in five sexual assault complaints as baseless, she interviewed fifty-four complainants. “You don’t do your sources a service by not taking them through the potential consequences of speaking to you,” she says. Discussions with her sources included clarifying what being “anonymous” meant to them. Did they want to be anonymous to their families and friends? Or did they want to be anonymous to an employer looking on Google? Because for a reporter, those are very different things.
Doolittle’s piece was the result of a huge amount of data collection and research. She also wasn’t focused on proving or disproving any single accusation, which gave her more leeway in terms of what she could write. Stories that have had the greatest impact, she notes, are ones reported with the same intensive research. “The Harvey Weinstein story was not ‘Ashley Judd made an accusation,’” Doolittle says. “They had court documents, they had NDAs, they had levels of documentation.” Because of the defamatory nature of sexual assault allegations, she adds, these articles should be difficult to report.
Still, although the legal and ethical imperatives around disclosing assault have made it, somewhat ironically for writers, often safer for them to hand their story off to someone else to tell, rather than writing it themselves, that does not insulate them from legal risk. Former Ontario PC party leader Patrick Brown is currently suing CTV for defamation after reporting on allegations of sexual misconduct against him, and Weinstein’s lawyer even rattled his saber about suing the New York Times. (The same lawyer later resigned from Weinstein’s legal team.) In Canada this past July, poet Jeramy Dodds brought lawsuits against the Globe and Mail and the Toronto Star, and threatened them against BuzzFeed and four as-of-yet-unidentified women, for reporting that his name appeared on a list of “shitty media men” and that there were allegations of sexual impropriety against him. Dodds lost his job after the accusations, which he said were motivated by revenge, according to the National Post. His lawsuit claims he suffered “catastrophic” loss of professional and personal reputation, loss of income and “irreparable damage” to his future. This new suite of suits will further test the ability of Canadian media to report on any but the most airtight of sexual assault cases.
“People kept asking me why I wrote the piece,” writes Lau in “Anatomy of a Lawsuit.” “I hardly knew what to say; this question particularly confounded me when it came from other writers, who I thought would have understood. It was as if they were asking that same question about a poem of mine, or a story, or a book. Why did a writer write anything? It was what was burning inside them at the time, it was the story they had to tell before they can go onto to tell other stories.”
Four years ago, a young writer from a new generation, Emma Healey, wrote a similar piece in the Hairpin—a story about telling a story, describing the process of trying to tell people about an experience like Lau’s. That effort to communicate was about more than personal catharsis, Healey wrote. “A story like this is a password,” she wrote. “Once you say it out loud, doors start to open.” In the piece, she recalled sharing unsettling emails from an older male author with women attending a writing residency at Banff with her. The act of Healey sharing her story created space for other women in Banff to share theirs, too.
Not every person wants to share their story with the world, though, or even smaller circles of their community—they just want to get it out. Dr. Hershler, who runs the the narrative writing psychotherapy group at Women’s College Hospital, begins each session by giving her patients a writing prompt—perhaps about loss or betrayal—and allowing them to choose whether or not to use it.
After forty-five minutes of writing, the group checks in to decide whether they feel comfortable sharing and receiving feedback on what they have written. Patients are directed to only respond to what they connected to in the story, being careful to not make any assumptions about the writer.
“There’s something very important about this both intrapersonally—so in terms of one’s own sense of identity and one’s own sense of self—and also interpersonally in terms of being able to connect with others,” says Hershler.
Within the group, patients get to choose what they write, and further, how and when they respond. While narrative therapy doesn’t hold the abuser accountable for what they’ve done, it can give survivors back the control that trauma so often rips away. One of the key things that makes this therapy useful is that it provides a safe and stable framework for people to tell their stories—something that doesn’t necessarily exist outside the confines of a clinical setting.
“There’s reasons to be cautious when you’re working in a system that hasn’t always been supportive and... that doesn’t always understand the impact of trauma on one’s memories,” says Hershler.
Those who do want to hold others accountable are slowly finding their own way. Rooney has not stopped tweeting altogether—she still speaks out about what happened at UBC. “I continue to speak out because I believe we can treat each other better, in ways that reduce harm, but that in order to do that we have to have long and uncomfortable conversations,” she says. “Headlines like ‘I’m Not A Monster’ are obsolete, from a bygone era where rapists jumped out of bushes and no one understood how consent works. The MeToo conversation is about humanity, not monsters. The legal risks hold less power over me than the hope for a community where everyone feels safe.”
There are also people working to make sure that victims have financial resources available to them. After it came out that Dodds was threatening to sue four women who made accusations against him, writer Alicia Elliott announced that a libel defence fund for which she had started fundraising online would go towards supporting those women. Elliott had set the original goal for the fund at $5,000. By the end of July, she had raised over $8,000. “It was incredibly heartening that so many people mobilized so quickly,” she says. “I don’t often feel optimistic about the world, but I felt optimistic when that happened.”
While Wilson was scared after she got her cease and desist letter, the man she accused of assaulting her never pursued the letter’s threat. Life went on.
In the intervening five years, Wilson has watched as things changed. Abusers across many industries were named, and in some cases criminally charged. The MeToo movement became mainstream enough to warrant its own Twitter emoji. And Wilson started talking about what happened again. “I got really frustrated at being silenced,” she says. “It was partially just maybe the passage of time and partially, just, you know: this is what happened to me, and I can’t not talk about it.”
* Names have been changed to protect privacy.