Can a Testifying Witness Be Sued for Defamation?

Typically, no—someone can’t be sued for defamatory statements if those statements were made in a judicial proceeding.  But can an alleged victim—or any other witness, for that matter—be sued for defamation for their testimony at a quasi-judicial hearing? It depends on how quasi.

Last summer, the Connecticut Supreme Court, in Khan v. Yale, et al., ruled that Yale University’s method for adjudicating on-campus sexual misconduct complaints was so lacking in procedural safeguards and so unlike any recognized judicial process that the alleged victim could be sued for defamation.

Saifullah Khan was accused of raping his Yale classmate in 2015 and charged with multiple counts of sexual assault.  He went to trial in Connecticut state court and was acquitted of all charges.  Yale, however, proceeded with its own disciplinary hearing—though the word “hearing” is too generous for what occurred.

Khan was made to sit in an anteroom and listen to an audio feed of the proceedings, rather than confront his accuser (who, herself, appeared only by teleconference).  Though he was allowed an attorney, his lawyer was not permitted to speak, question witnesses, or raise objections.  He could only submit questions beforehand, which the panel could reject in its sole discretion.  There was no procedural mechanism guaranteeing Khan’s right to call defense witnesses.  Unsurprisingly, Khan lost.

And then he sued.  Khan sued Yale for its denial of basic due process, and he sued his accuser for defamation.  Khan’s accuser raised an immunity defense, arguing that she couldn’t be sued for defamation because her statements against Khan came in the context of Yale’s disciplinary process.

But the Connecticut Supreme Court ruled Yale’s disciplinary process was so wanting in its procedures that Khan’s accuser was not immune from a defamation lawsuit.  That is, Yale’s disciplinary process was so foreign to what is commonly understood as even quasi-judicial standards, that the witnesses’ statements—even the alleged victim’s statements at the “hearing”—could be actionable.

To be clear, this was not a case about raising the burden of proof for sex crimes or placing more onus on victims.  At the outset of the opinion, the court stressed that the judicial system “must not be used as a means of intimidation to enable [alleged rapists] to silence their accusers by using the threat of civil litigation and liability for damages.”

Instead, this case should be read as signaling the minimum requirements needed to protect alleged victims from defamation claims.  As the court notes, those protections should include (among other safeguards): a right to cross examine witnesses; a meaningful opportunity to challenge evidence; some means for holding witnesses accountable for untruthful statements at the hearing; the right to effective counsel; and the right to an adequate record for appeal.  Without these basic guardrails, the proceedings are basically frog marches where guilt is assumed, and too unlike any judicial proceeding, so witnesses—even the alleged victims—don’t get immunity from defamation lawsuits that can follow.

To ensure the rights of the accused and alleged victims—to ensure that both sides receive immunity for statements made in the context of a hearing—those hearings must be robust.  The less a hearing protects the rights of the accused, the more the hearing can be discounted as illegitimate; fewer procedural protections expose both sides to greater risk of a defamation suit.  As the Connecticut court summarized, “there is a sound public policy justification for affording proceeding participants absolute immunity,” but when the adversarial process is devoid of procedural safeguards and makes a mockery of due process, neither side is immune from defamation suits.

March 13, 2024

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