How to Make #MeToo Offenders Pay
Those who accuse powerful people of sexual harassment and abuse need to be better protected from retaliatory lawsuits.
Last year, the journalist Aebra Coe published a bombshell story in Law360, a trade publication for people in the legal profession. The article, titled “‘I Suffered Silently’: Ex-Law Prof Allegedly Preyed on Students,” broke the news that Joshua Wright, then a law professor at George Mason University School of Law and the former commissioner of the Federal Trade Commision, had allegedly pressured female students and workplace subordinates into sexual relationships.
Two women lawyers, Elyse Dorsey and Angela Landry, participated in Title IX proceedings against Wright in 2021, before speaking to Coe. After the article’s publication, Wright sued Dorsey and Landry for $108 million, claiming that they had defamed him in their statements to Law360. Wright admitted to sleeping with his students and subordinates, but claimed that the sex was consensual and the two women were simply “scorned former lovers.” Wright’s lawsuit was initially thrown out by a Virginia judge who gave Wright the opportunity to file an amended complaint, which he did. This suit stuck, and the defamation claims are now set for trial in March 2025. (A representative for Wright told me that this suit has survived motions to dismiss, and that the essence of his complaint is not that Dorsey and Landry “outed” him, but that they allegedly lied about their consent and episodes of assault.)
Whether you think Wright’s behavior with his students and employees is a moral affront likely depends on whether you believe that he abused his authority when he began and continued sexual relationships with women learning from and working for him. Power is having something that someone else needs (or wants), and so coercion is a frequent by-product of inequalities in status. This is true of all kinds of contexts—from the interpersonal to the economic. That much was established by the #MeToo movement, but the movement has unfinished business: Accused men can still punish accusers with retaliatory lawsuits, which threaten enormous expenditures of time and money, even if those suits are ultimately unsuccessful. It’s a tactic that puts power back in the hands of the accused and chills the atmosphere around reporting sexual misconduct. Only public pressure and legislative action can prevent these suits from collapsing the past decade’s progress in rooting out sexual exploitation in women’s work and education.
[Read: Where #MeToo came from and where it’s going]
The attorney Roberta Kaplan, a co-founder of the Time’s Up Legal Defense Fund, recently told me that defamation litigation was little heard of in the 1990s compared with today. But a surge of such lawsuits followed the rise of #MeToo. Wright’s petition is not novel, but rather an installment in a genre of tactical suits typically filed by well-connected and wealthy men against their female accusers. Similar legal action has been taken by plenty of men since the advent of #MeToo in 2017, and not just in the United States: Men in Australia, China, India, Sweden, and France have all mounted defamation suits against women who aired accusations of sexual abuse.
Defending oneself in defamation litigation can cost hundreds of thousands of dollars in attorneys’ fees, which may be due for several years as cases percolate through court. These suits are also intimidating and destabilizing. When I met with Dorsey and Landry last October, Wright’s suit had already wreaked havoc in their lives. “I feel like I’ve been walking on eggshells for years, trying to navigate around potential issues and keep out of trouble with him, and I still am here in the middle of this nightmare,” Dorsey told me. “It really feels like I had a recurring nightmare for a decade, ever since I was a law student, about all the things that would happen if I spoke out about what had happened to me, and that I’ve just been living in for the last couple of years. It’s everything I’ve been afraid of and so much worse. Even with all this going on, it never did occur to me that I might get sued for $108 million.”
Months on, Dorsey and Landry have incurred more costs. During a recent phone call, Dorsey told me that she was exhausted by the ongoing legal proceedings. It has been “awful, like an actual nightmare,” she said. “If I had known what would happen when I filed the Title IX complaint, I can’t say I would’ve filed it.” Since the suit began, Dorsey added, she has had to take a leave of absence from work to seek treatment for mental-health concerns. She told me that she has paid legal fees approaching six figures.
Landry also took five weeks off work to cope with the aftermath of Wright filing suit. It was stressful and overwhelming, she told me over the phone earlier this summer. “It’s just a major uprooting of your life.” She said that she has paid $10,000 to $15,000 a month since last fall, and doesn’t have much hope that she will see an end to the process anytime soon: “It’s been very hard to deal with emotionally … How is this going to end? When will it end? How much is this going to cost me?” For Landry, the costs could be compounded by her circumstances: She is nearly eight months pregnant, and expects to spend her maternity leave dealing with this suit. But she said she would come forward about Wright even so, explaining that she wants to change the culture around abuses of power.
Scores of strategies are available to lawmakers that would protect survivors of sexual abuse from defamation lawsuits aimed at silencing them. These suits have the potential to be ruled as SLAPP suits, or strategic lawsuits against public participation, which are legal actions aimed at preventing complainants from publicizing their stories. Where anti-SLAPP statutes exist, defendants can file a motion charging that the plaintiff’s suit meets the criteria for a SLAPP suit, and therefore ought to be dismissed. But anti-SLAPP protections are available only in certain districts. Liz Chacko, a senior counsel at the National Women’s Law Center, told me during a recent phone call that only 35 states and territories have anti-SLAPP statutes, and some of these laws are weak: Dorsey said that the anti-SLAPP statute in Virginia, where Wright’s suit was filed, isn’t strong enough to be helpful in her case. Retaliatory defamation suits are “just a tool to exploit the power imbalance between survivors” and the people they accuse, Chacko said. She laid out a three-point plan for reducing the impact of these complaints. First, all states should enact comprehensive anti-SLAPP laws. Chacko also suggested that Congress enact a federal anti-SLAPP law, which would apply to retaliation in cases of sexual harassment.
[Read: #MeToo has changed the world–except in court]
Then comes the possibility of fee-shifting, a practice that would saddle abusers with the costs of their defamation suits. At the moment, there isn’t much to deter the accused from filing complaints against victims who speak out. “These men don’t really expect to win,” Chacko told me. “They just know it’s costly and distorts reality.” Statutes that require the losing party to pay the prevailing party’s attorneys’ fees could give abusers cause to think before rushing into defamation litigation. (Many such provisions already exist in law—losers in civil-rights cases, for example, are sometimes required to pay winners’ fees.) Kaplan suggested further fee-shifting provisions that could help protect victims: Statutes might require that fees be paid at a decent rate, that they be paid upfront and held in escrow, or that they be doubled in these cases. Not only could these measures discourage powerful men from mounting defamation claims; they could also encourage victims to come forward with the knowledge that their costs will likely be recouped.
Some might argue—fairly—that the rights of the accused are important as well, and that legislation meant to protect accusers could rig legitimate judicial processes against plaintiffs. But anti-SLAPP legislation guarantees only that defendants can motion to have plaintiffs’ suits dismissed as SLAPP suits, not that judges will universally rule in defendants’ favor. Nor would fees be shifted to plaintiffs who win their cases. Anti-SLAPP legislation isn’t aimed at universally eradicating defamation suits, just those brought strategically to silence parties who announce their abuse in public.
Activists and legislators have offered other approaches to shielding women from retaliation for attesting to their experiences with sexual misconduct. In 2020, New York expanded its anti-SLAPP statute, broadening both what qualifies as in the public interest and what meets the criteria for public participation. New York State Senator Brad Hoylman sponsored the bill, saying that “this broken system has led to journalists, consumer advocates, survivors of sexual abuse and others being dragged through the courts on retaliatory legal challenges solely intended to silence them.” A California law passed last year not only requires a losing plaintiff to pay both parties’ legal expenses, it also raises the standard for proving defamation—meaning plaintiffs have to prove that the statements they’re characterizing as defamatory were made with actual malice, not just negligence. Dorsey mentioned statutes that would require plaintiffs alleging defamation to prove they’re likely to prevail on the merits, or to provide proof of their defamation claims upfront. Adducing this evidence earlier in the process, she said, would shorten these affairs.
“I feel like it’s really important that we keep talking about it and that we don’t allow ourselves to be silenced,” Dorsey said. “Because if we do, then junior associates who are going through this [are] not going to feel like they can come forward. And I talked to so many older women in the profession, too, who had their own experiences decades ago and felt like they couldn’t come forward.” Dorsey said she didn’t want to be several decades into her career in a professional culture that remained unchanged. She wants it to be better than she found it. That may depend on how laws governing SLAPP suits change, and whether victims’ advocates can win further statutory victories in their jurisdictions. Employees and students everywhere have a stake in that hope.