Men Defending Themselves Is Harassment, Says Law Professor

Former Iowa State University basketball player Bubu Palo has filed a civil action for defamation against the woman who accused him of sexual assault two years ago. Criminal sexual assault charges had been brought against Palo, but they were dismissed before trial. A forensic analysis of a blouse the alleged victim wore the night of the incident determined that it had been torn after the alleged assault, contrary to statements the alleged victim had made under oath.
The local newspaper that reported the story quotes Stanford law professor Michele Landis Dauber saying this about the Palo lawsuit: “I think that there are valid public policy reasons that a judge might want to look very carefully at such a case and make sure that there’s really good evidence to support (the defamation claim), because otherwise it is going to be very harassing of sexual assault victims.”
Dauber’s comments are the legal equivalent of gobbledygook. The standard of proof for defamation claims is preponderance of the evidence. “Really good evidence” has no legal meaning.
Does Dauber mean that a judge should require Bubu Palo to produce evidence beyond a “preponderance of the evidence”? If Dauber didn’t mean to suggest that, why did she bother making the statement? The implication of Dauber’s quote is that because the alleged defamation arose in the context of a sexual assault claim, the plaintiff should be subjected to a different—presumably enhanced—standard than plaintiffs in every other defamation action. (If Dauber meant something different, she can tell us, and we will happily report it.)
In other news reports, Dauber is said to advocate for expulsion in cases of sexual assault. We wonder if Dauber thinks that in cases calling for life-altering expulsion, the university should be required to “make sure that there’s really good evidence to support” the charge? Because—you know—“otherwise it is going to be very harassing of” presumptively innocent young men? Or do Dauber’s concerns run only one way?
Dauber is also on record opposing the right of persons accused of sexual assault to cross-examine their accusers, saying, “Having the 18-year-old rape victim be cross-examined by the guy who raped her? That’s just wrong, wrong, wrong.”
Please note that Dauber doesn’t bother to opine whether it’s “wrong, wrong, wrong” for a young man who is wrongly accused of sexual assault to cross-examine his accuser. Perhaps the idea that a young man might be wrongly accused of sexual assault never crossed her mind.
The local newspaper reporting on the Palo case also quoted Beth Barnhill, executive director of the Iowa Coalition Against Sexual Assault, who said that lawsuits against alleged victims are “really unfortunate.” And: “I think it can discourage reporting. It’s a terrible precedent, and I think that there are a very small number of false reports.”
Barnhill’s comments are staggering in their hostility to fundamental notions of fairness. The injustice in suggesting that a defamation claimant should be deprived of his right to legal redress because the alleged defamation occurred in the context of a sexual assault claim is self-evident. Only in the loopy milieu of gender politics are such statements uttered with a straight face.
If Bubu Palo is able to prove defamation by a preponderance of the evidence, he could be awarded a significant monetary judgment, and such an award might discourage others from reporting false claims.
Editor’s note: Originally published on COTWA here.

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