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| John Winer |
However, the initial enthusiasm has begun to wear off quite a bit, and now the reality of how difficult it is to litigate these types of cases has become a stark reality for men and women, accusers and the accused. Two recent developments, one in California and the other in Massachusetts, should be a wake-up call as to how difficult it will be to turn a civil rights movement into long-lasting legal precedent.
Kevin Spacey, the Oscar-winning actor who was accused by multiple individuals of sexual misconduct, was in the midst of a criminal trial when things took a drastic turn. First, the young man who alleged Spacey groped him in a Nantucket bar in 2016 dropped his civil lawsuit against Spacey, and the lawsuit was dismissed with prejudice.
Then, during the criminal trial, that same man pleaded the fifth in a hearing to produce a crucial missing cellphone which supposedly contained critical evidence in the case. This made the state of Massachusetts' case against Spacey extremely difficult.
In Los Angeles, California, a similar incident occurred when a woman who had accused Rep. Tony Cardenas, D-Calif., of molesting her when she was a teenager dropped her lawsuit as well and went so far as to say she regretted hiring her attorney to represent her. This case was also dismissed with prejudice. When a case is dismissed with prejudice, it means the plaintiff is barred from filing another case on the same claim.
The #MeToo movement began almost two years ago in October 2017 with the Harvey Weinstein accusers coming forward almost daily to detail the horrible ways they had been treated. This sparked a movement where women throughout the country began telling their personal stories of how they'd been the victims of various types of sexual misconduct at work, in relationships, at public events and more.
However, according to the #MeToo index which tracks high-profile accusations of sexual misconduct in entertainment, media, politics and other employment sectors, the number of highly publicized #MeToo accusations dropped to the lowest level since peaking in October of 2017. In May of 2019 there were 12 accusations, down from 143 just seven months earlier.
There are any number of reasons why reported incidents are down, but a big reason is that when these public cases are prosecuted, they are held to a much more rigorous standard than Twitter Inc. can offer. Issues of evidence, expert testimony, proof, what is allowed into a case as evidence and more are all impacting these criminal and civil investigations.
It's one thing for a woman to bravely come forward and tell of how she was harassed at work or of a man saying a patron sexually assaulted him, but trying these cases in court is far more complex. Right or wrong, our justice system (both on the criminal and civil side) can be a challenge to navigate.
In the case with Spacey, it seems the accuser was unwilling to answer some questions and unable to answer others. For an aggressive defense team, this was all it needed to question his motives and even his entire story. Again, on social media the jury is 20 million strong but in a court room it's a jury of 12 and a judge, a much more difficult process.
Once again, the difference between the standard of proof in criminal and civil cases has come to the forefront. In criminal cases, the prosecution has to prove their case beyond a reasonable doubt, which is a very difficult standard in sexual abuse and harassment cases where very often we are dealing with he said/she said situations. In civil cases the standard is preponderance of evidence — more likely than not, that the assault occurred — which one would think would allow the more credible litigant to win. However, skilled defense attorneys will always find some ways under the rules of evidence to attempt to discredit the accuser.
Sadly, the rules of evidence in California and most states, are set up in a way in which the alleged perpetrators have an enormous advantage over accusers in terms of attacking credibility. The advantage emanates from evidentiary rules around what evidence is relevant in a sexual harassment trial.
The way that laws currently stand, the state of mind of an alleged perpetrator is normally not relevant to prove any particular fact in a sexual harassment case. The state of mind of the accuser is always relevant because the accuser is always claiming emotional distress damages in the case.
This discrepancy between what is considered relevant for the alleged perpetrator versus the accuser creates an absolute nightmare situation for the accuser trying to win a he said/she said sexual abuse or harassment case, or actually any type of sexual abuse or harassment case. Since the state of mind of the alleged perpetrator is irrelevant according to rules of evidence, the plaintiff is not allowed to perform any discovery or introduce any evidence at trial other than what the alleged perpetrator did or didn't do to this particular plaintiff. In many cases, courts won't even allow evidence of the alleged perpetrator sexually abusing or harassing other victims!
In the meantime, since the plaintiff is claiming emotional distress damages, the defense is allowed to discover and enter into evidence all of the plaintiff's current and past medical records, psychological records, school records, records of other lawsuits, and evidence of any prior sexual abuse claims or anything that may have contributed to the plaintiff's emotional distress including: divorces, deaths of friends or relatives, prior rapes, molestations, abusive relationships or anything that has anything to do with the plaintiff's state of mind. It is no wonder that accusers of sexual abuse feel like by the end of the case that they are the ones on trial.
This must end if women and men who are brave enough to bring sexual assault, abuse and harassment allegations are ever going to be able to litigate on a level playing field with their abusers and harassers. The laws must be changed to either limit the amount of discovery and evidence that can be introduced against accusers or increase the amount of discovery and evidence that can be introduced against alleged perpetrators.
Legislators in California have shown they are willing to change the laws of certain sex crimes to the benefit of the accuser. For example, legislatures have responded to Boy Scouts of America and clergy abuse cases by altering the statute of limitations to favor the accuser, not the accused. However, those types of cases often involve sex crimes against children, and women who have suffered harassment, assault and the like have not garnered the same type of attention from politicians. The time has come however to put legislative action behind the #MeToo movement, otherwise we will jeopardize all the progress made and revert back to the days of executives turning a blind eye to sexual harassment.
John D. Winer is a partner at Winer Burritt & Tillis LLP.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
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