It’s critical for the Legislature to restore the safeguards and protections in a 2010 statute that had protected sexual-assault survivors from defamation lawsuits by their abusers.
The #MeToo movement has raised public consciousness about sexual assault and domestic violence. It has also underscored the need for stronger legal protections for victims in Washington who speak out about their experiences. We urge the Legislature to adopt a new statute combating strategic lawsuits against public participation (“SLAPP”).
The problem is simple: #MeToo victims do not have sufficient protections from defamation lawsuits by their abusers. And yet such lawsuits have become a common weapon for perpetrators to retaliate against survivors. These lawsuits also have a chilling effect on reporting, which is already low, even though the probability that a rape allegation is false is between 2 and 8 percent, the same as for any type of violent crime.
Other states (including California and Oregon) protect domestic-violence and sexual-assault survivors and other citizens exercising their First Amendment rights to speak. Washington, however, does not, because of a state Supreme Court ruling in 2015 striking down the state’s new anti-SLAPP statute. The Washington Legislature can and should close that gap with a comprehensive statute that addresses the Supreme Court’s concerns and restores legal protections for free-speech advocates.
In 1989, Washington passed the nation’s first anti-SLAPP law. The statute, which protects communications directly with government (including police), has provided a tool for survivors of domestic violence and sexual assault to defend themselves against abusive litigation. Even though these lawsuits are typically meritless, the mere filing of a lawsuit forces survivors to hire a lawyer (if they can afford one) and to fight their abusers, sometimes after a court has already validated their claims. These lawsuits are intended to punish and silence survivors.
Although important, the protections of the 1989 law were not enough. Recognizing this, the Legislature strengthened the state’s anti-SLAPP protections in 2010, expanding the scope of the original law and providing greater protections for anyone speaking about a matter of public concern — including survivors who speak about their experiences to others. Unfortunately, the Washington State Supreme Court found the statute unconstitutional in the 2015 decision Davis v. Cox, leaving SLAPP victims exposed to meritless lawsuits.
The Legislature may soon have an opportunity to fix this problem. The Davis Court held that the statute unconstitutionally required plaintiffs to prove by “clear and convincing evidence a probability of prevailing on the merits,” and suggested that using a more lenient summary judgment standard would cure this defect. We have drafted a proposed bill that does just that.
Just like the 2010 statute, the draft law would allow SLAPP victims to ask the courts to decide whether a lawsuit has any legal merit before the victim is forced to endure unnecessary and time-consuming discovery. This is particularly critical for survivors, who often find themselves trapped by repeated court appearances in which they are forced to personally confront their abusers. In addition, the proposed bill, like the 2010 statute, would require SLAPP plaintiffs to pay their victims’ attorneys’ fee incurred in securing dismissal, making it easier for survivors to retain an attorney who can help them oppose the retaliatory lawsuit.
SLAPP plaintiffs rarely win in court but often realize their ultimate goal: to devastate the defendant financially and chill their public involvement, suppressing the survivor’s ability to seek help from law enforcement and/or the courts.
It is therefore critical for the Legislature to restore the safeguards and protections in the 2010 statute. Doing so will give domestic-violence survivors an essential tool to combat abusive litigation and sexual-assault survivors an equally important mechanism to combat the increasing use of defamation lawsuits designed to silence them. Such a step is also necessary to enable survivors to confront offenders who use the courts to control a survivor’s life.