With Mandi Gray, author of Suing for Silence: Sexual Violence and Defamation Law. #MeToo made headlines around the world in 2017 and thousands publicly shared their experiences of sexual victimization. The “me too” movement was first established in 2006 by American activist Tarana Burke. #MeToo has been called a watershed moment for gender equality, giving a powerful platform to sexual violence survivors.

And many of us have experienced sexual assault and harassment in our lives. In Canada, 30% of women over age 15 report experiencing sexual assault at least once. The rate of sexual assault against Indigenous women and women with disabilities is even higher.

But some survivors who said “me too” found themselves subject to defamation lawsuits that, in some cases, might drag on for years. What are the legal matters behind these civil suits?

Our guest Mandi Gray is an assistant professor at Trent University. She has been involved in anti-violence activism since 2008. Her debut book, ⁠Suing for Silence: Sexual Violence and Defamation Law⁠, critically examines the growing trend of men accused of sexual violence suing their accusers.

A note about content: this episode addresses gender-based violence.

Transcript

00:00:03 Mandi

After the #MeToo movement, while a lot of people felt empowered to begin talking about their experiences of gendered and sexual violence, whether it’s on social media or making formal reports, we also saw a rise in these defamation lawsuits in response to this influx of discussion and reports about gendered violence.

00:00:30 Andrea

How is it that reporting your experience of sexual violence comes with such a risk of defamation lawsuit?

I’m Andrea Gunraj from the Canadian Women’s Foundation.

Welcome to Alright, Now What? a podcast from the Canadian Women’s Foundation. We put an intersectional feminist lens on stories that make you wonder, “why is this still happening?” We explore systemic routes and strategies for change that will move us closer to the goal of gender justice.

The work of the Canadian Women’s Foundation and our partners takes place on traditional First Nations, Métis and Inuit territories. We are grateful for the opportunity to meet and work on this land. However, we recognize that land acknowledgements are not enough. We need to pursue truth, reconciliation, decolonization, and allyship in an ongoing effort to make right with all our relations.

00:01:24 Andrea

#MeToo made headlines around the world in 2017 and thousands of people publicly shared their experiences of sexual victimization.

The “me too” movement was first established in 2006 by American activist Tarana Burke, after her own experience of sexual violence. Her dream was to “build a community of advocates, driven by survivors, who will be at the forefront for creating solutions to interrupt sexual violence in their communities.” #MeToo has been called a watershed moment for gender equality, giving a powerful platform to sexual violence survivors.

And many of us have experienced sexual assault and harassment in our own lives. In Canada, 30% of women over age 15 report experiencing sexual assault at least once. The rate of sexual assault against Indigenous women and women with disabilities is even higher. Critically, only 1 in 3 people in Canada understands what it means to give consent to sexual activity.

But some survivors who have said “me too” found themselves subject to defamation lawsuits that, in some cases, can drag on for years. What is all this about? What are the legal matters behind these civil suits?

Our guest Mandi Gray is Assistant Professor at Trent University. She has been involved in anti-violence activism since 2008. Her debut book, Suing for Silence: Sexual Violence and Defamation Law, critically examines the growing trend of men accused of sexual violence suing their accusers.

A note about content: this episode addresses gender-based violence.

00:03:08 Mandi

I am known most often as an anti-violence activist. I’m also a lot of other things, including a professor at Trent University in the Department of Sociology and I teach courses about gendered violence and responding to violence more generally. In addition to being a professor, I’m also a researcher and a writer and a dog mom and that’s kind of the main roles in my life right now. And thank you so much for having me here to talk about the work that I’ve been doing.

00:03:46 Andrea

Tell me about your book Suing for Silence. What’s it about and why did you write it?

00:03:51 Mandi

I first came to this topic of defamation in about 2017, and if you think of the larger context of when this was happening, it’s on the heels of the Jian Ghomeshi case and him being acquitted. So, the topic of sexual assault was very much in the Canadian public sphere as a point of discussion, but we hadn’t reached #MeToo yet. #MeToo brought another wave of discourse and discussions about gendered sexual violence.

But in around 2017, I had two different women from two different places share with me that they had been sued for making a formal report of sexual violence. Both of them occurred within the workplace – one reported to the police, one reported to her employer. In both cases, instead of getting justice for what had happened to them, they were sued.

They shared with me the impacts of being sued were really profound. Not only did they not get justice for the harms that they had endured, but they also had experienced pretty extreme financial, professional, emotional ramifications of having to witness the legal system be used to inflict harm on them. And initiated by the men who had harmed them. So it was a new layer of harm.

I’ve been working with women and girls involved in the legal system since 2008, so almost 10 years at that point. And I had always operated on the false notion that if you made a formal report that would somehow protect you from legal action by the people being accused. And I asked Joanna Birenbaum, who’s a litigator who specializes in sexual abuse claims, had shared with me that she was representing many women who had been sued for reporting or even making a disclosure, for example, to a friend or a faculty member.

And that was really the catalyst for this project because I didn’t understand why this wasn’t being talked about. I didn’t know if people knew this was even a possibility when they were being encouraged to report. And then after the #MeToo movement, while a lot of people felt empowered to begin talking about their experiences of gendered and sexual violence, whether it’s on social media or making formal reports, we also saw a rise in these defamation lawsuits in response to this influx of discussion and reports about gendered violence.

So, I was doing my PhD at the time and I suggested I would do this to my doctoral supervisor and she thought it was an interesting topic but wasn’t really sure I would be able to get a big enough sample to actually do this as a research study. I think we were both surprised to the extent that it was happening, that I was able to talk to 17 people who had been either sued or threatened with a lawsuit, as well as lawyers and advocates who have worked with survivors who had faced civil legal action. And then now it’s in book form to share the stories and the narratives of these 17 people, as well as I draw in other examples from case law.

And then in a weird twist of fate, the day I went to submit my dissertation proposal for this work was the same day that I learned that I myself was being sued in the National Post. And so, I learned I was being sued for comments I had made about a very public story about sexual violence. I didn’t realize the extent to which that lawsuit is now continuing on. I’ve been able to do all my PhD research, defend my PhD, do a post doc, write a book and get a faculty job, and I’m still getting sued. So, in terms of length of time, I’ve seen firsthand just how challenging these lawsuits can be to defend yourself. Especially, speaking from my own experience as someone in a position of relative privilege, still recognizing the substantial challenges embedded in trying to defend yourself in a lawsuit.

And especially unique challenges relating to sexual and gendered violence, and we are very familiar with rape myths and stereotypes that exist in the criminal legal system. They’ve been well documented and talked about a lot, but those are also replicated in the civil legal system which has received far less attention until relatively recently.

00:09:20 Andrea

Your exploration of the gendered underpinnings of defamation law is fascinating. Can you tell us more about that and why it places sexual violence survivors at risk when they seek remedies and speak out?

00:09:31 Mandi

If we go way back into why defamation law was created, it was because there was an emphasis on wanting to ensure that we had a civil society and less reliance on bloody duals between men who had hurt the reputation of another man. So, it’s very much the history in and of itself is based on this patriarchal, toxic masculinity of: how can we encourage civil society? And even 100 years ago, legal scholars were saying defamation laws were out of date. Law, as we all know, takes a long time to change and transform with society, whether that’s the creation of newspapers or the creation of digital media and technology.

And there hasn’t been a lot of interest from researchers in defamation law. But what has been looked at from a perspective of gender has been really interesting in the distinctions between what men will sue for, so the protection of their reputation as property, as their way to make money. Whereas historically women tended to use defamation law solely for the purposes of ensuring that they were able to marry. So, for example, if someone called her a name that was derogatory in relation to her sexuality, that would be grounds to sue, because that would make her less of an attractive option for marriage.

So, even looking at the larger historical trajectory, we can see how it’s been very much rooted in these principles of capitalism, like property and hetero patriarchal relations of the family. And we’re continuing to see that manifest today in the ways that men often sue to preserve their reputation as their property, their ability to make money. Oftentimes it’s not even about like having a financial settlement, but more so to restore their dignity and their public persona. Women suing for defamation tended to be less often, we have seen it a little bit in the United States for, for example high profile cases like I’ll think of Donald Trump most recently was sued for calling one of the people who had accused him of gendered violence a liar, and she sued him for discounting her narrative.

I don’t think we’ll see that as much in the Canadian context because we don’t have a statute of limitations for civil sexual abuse claims. At any point in time, you are able to initiate a civil legal action against the person or the institution that was responsible for any type of sexual harm, whereas in the United States, there’s fewer options available once that time limit has passed. So, I think that’s why we’re seeing more of the defamation from women and from people who identify as survivors.

And the other thing I think is really interesting and important for people to consider is that even for somebody to publicly identify as a survivor can be legally risky because the courts have taken the stance that by claiming your survivorship then that must mean that whoever your former partner – if we wanted to look at the Amber Heard and Johnny Depp case, who when she publicly declared herself as a survivor of domestic violence, the courts made the assumption, and so did much of the general public, that that must mean that he’s guilty.

And so, there’s been this interesting disjuncture between can you call yourself a survivor in this legal political climate without the risk of potentially being sued for defamation, and I think we’ll see some interesting legal developments in that regard in the near future. But it has been a very contentious point in terms of who gets to call themselves a survivor and what are the ramifications of the person who is then implicated as being the so-called perpetrator from the eyes of the law.

00:13:56 Andrea

Can you offer any tips or advice for listeners who want to be part of the solution to this overwhelming problem and might not even know where to start?

00:14:04 Mandi

I do agree it feels like sometimes a problem that how can I, one person, make any difference? I know I sometimes feel like that. I’m sure sometimes you might feel like that too, Andrea. But I also think that there are a lot of different things we can do, and we can all build on our own strengths in advancing gender equality and gender justice. Whether it’s volunteering, and I think for myself personally, a lot of my activism and so much of the work I currently do is so much inspired by getting involved with feminist organizations when I was in my early 20s, but you can get involved at any age. And I learned so much from the people I volunteered with, both the clients and then people I worked with at the organization. I think that’s a great way to get involved in your community, give back and learn from activists and advocates who’ve been doing this work for a long time.

I think that everyone has so many different strengths. For me it’s writing and teaching and creating art about these different issues, but for other people there might be other ways in which they want to raise awareness. I have friends who do photography about gendered violence and do shows to showcase these narratives. And you just capture different audiences with everybody that we bring into this movement to ignite change.

I teach courses on gendered violence at the university I teach at. I’m so inspired by some of the really innovative ideas that the younger generation is coming up with and having this language that we never had, or I never had, to describe these experiences. So, I think we’ll just keep building and learning from one another.

And so, I think everyone’s welcome, and everyone can bring their own strengths and build strengths too throughout just getting involved. I know a lot of sexual assault centers, rape crisis centers are always looking for people to get involved in different capacities, whether it’s fundraising, or you know being on the crisis lines, there’s something for everybody.

00:16:30 Andrea

Alright, now what? Check out the book Suing for Silence: Sexual Violence and Defamation Law by Mandi Gray.

If you want to make sure no woman, girl or Two Spirit, trans or nonbinary person feels out of options, out of sight, out of time or out of mind, visit yescountmein.ca today. When you count yourself in, you’ll join over 66,000 people in the Canadian Women’s Foundation’s generous and active community. You’ll get tools and opportunities to advance gender equality. This movement needs you. Visit yescountmein.ca and count yourself in today.

Please listen, subscribe, rate, and review this podcast. If you appreciate this content, please consider becoming a monthly donor to the Canadian Women’s Foundation. People like you will make the goal of gender justice a reality. Visit canadianwomen.org to give today and thank you for your tireless support.