Should False Accusations Be Protected Speech?
Carmen Aguirre On The Systemic Racism In Protecting False Rape Allegations
Dear Readers, thank you for your patience. I’ll be publishing court updates shortly but in the meantime it is my great honour to present Truth & Consequences’ first guest writer, the incomparable Carmen Aguirre. Thank you to all the paid subscribers who have allowed me to commission a number of pieces which will be in your inbox before you know it.
On International Women’s day in 2013, I had the great privilege of delivering the keynote address at the 26th Annual West Coast LEAF Equality Breakfast. West Coast LEAF (Women’s Legal Education and Action Fund) is a charity with a mandate to “work towards an equal and just society for all women and people who experience gender-based discrimination.” Their advocacy has helped make British Columbia a more gender equitable province and it was my great honour to address a membership that has so successfully and ethically advocated for justice in our legal system.
I like to think that one of the reason’s West Coast LEAF honoured me in 2013 is that I have never been afraid to speak my mind on social issues of importance, and often consider it my duty to do so. Regrettably, I now see it as my duty to speak out against their most recent legal intervention.
This month West Coast LEAF made an application in the Supreme Court of British Columbia to intervene in support of the SLAPP dismissal applications being made by 11 of the 24 people being sued for defamation by the writer Steven Galloway in Galloway v. A.B..
Note: there is a media ban on the name of Galloway’s main accuser; she is referred to in these proceedings as A.B..
SLAPP means Strategic Lawsuit Against Public Participation. You can read more about our SLAPP laws, by clicking here. The intent of this law is to allow someone being unjustly sued for defamation to ask the court to dismiss on the grounds that the defamatory statement is in the public good. In this case, it is being argued that the defendants’ right to label Steven Galloway a rapist should be protected, and that his defamation case should be thrown out.
In essence West Coast LEAF is arguing that false accusations of rape should be protected speech. It’s hard to understand how such an organization can reconcile this position with their mandate to ensure “justice for those who are criminalized.” It is even more baffling why they are advocating for a law that is systemically racist.
In May of last year, we saw the video footage of a Canadian investment banker named Amy Cooper falsely accusing an African American birdwatcher and writer, Chris Cooper, of threatening her. The implication of Cooper’s call – “I’m telling the cops an African American is threatening me” –evoked a long history of false sexual assault accusations against African American men, including The Central Park Five, the murder of Emmett Till due to fabricated accusations in 1955, and the murder, lynching and incarceration of Black and Indigenous men for centuries.
The problem is not only historic; it is pervasive, real and a fact of modern life for men of color. A couple of years ago, one of my Black male Facebook friends shared the story of coming across a stumbling drunk young white woman in the middle of the street. She was clearly endangering herself, so he helped her to the curb, put her inside a cab, handed the cabbie some cash, and fled. He felt terrible that he hadn’t gotten her all the way home, but there was no way he was exposing himself to risk by getting into that car.
A similar story made it into the groundbreaking sitcom Black-ish, in a clip now known on YouTube as The Little Girl In Elevator Scene. Dre Johnson (Anthony Anderson) is waiting for an elevator when the doors open to reveal a sniffling two-year-old white girl. Dre wrestles with the situation: as a Black man does he help a child in need or duck the risk of being caught in an elevator with a distraught white toddler? Dre steps away, but his ignorant white colleagues later castigate him for not helping a young child in distress. While Black-ish is comedy, the reality is much bleaker: lives are destroyed by false accusations of sexual assault, and such destroyed lives are disproportionately those of men of color.
In this time of social media, should we protect people who falsely accuse others of rape on platforms like Twitter? We can expect a major increase in false accusations if we remove all punishment for making them.
Think what that would do to our democracy. Cunning white supremacists would rejoice at West Coast LEAF’s interpretation of SLAPP law. Let’s imagine that Jagmeet Singh becomes the most popular Canadian politician, assured to win the next election. All some white supremacist women would need to do to topple him from his position is accuse him of rape. Are we okay saying that we want such hate tactics protected on the grounds they are being delivered by a woman claiming sexual assault?
In BC Supreme Court, The Honourable Madam Justice Marzari (an access to justice champion, former board member and pro bono counsel for West Coast LEAF) issued a media ban protecting A.B.’s name. I fully support this precedent, as it does indeed protect women wrongly sued for defamation for making true accusations of sexual assault. However, in their application, West Coast LEAF writes: “A.B. has made allegations of, and is a survivor of, sexual assault and sexual violence.”
But Madam Justice Marzari made it clear that “it has not been established that the applicant is a victim of sexual assault or that the plaintiff has been wrongly accused.” In other words, there are no publicly known facts (as opposed to opinions or beliefs) to back up West Coast LEAF’s claim that A.B. is a survivor of sexual assault.
On the contrary, Madam Justice Mary Ellen Boyd (Ret.) held an investigation and found that on a balance of probabilities the allegations could not be substantiated. Then as part of the SLAPP hearing last week we heard that A.B. has given inconsistent testimony and admitted to fabricating a claim she used to bolster her accusations against him.
Also A.B. is represented by Toronto lawyer Joanna Birenbaum who is the former Legal director of West Coast LEAF’s parent organization LEAF, and David Wotherspoon, Q.C. who is West Coast LEAF’s pro bono lawyer. In her oral judgment dismissing West Coast LEAF’s application to intervene, The Honourable Madam Justice Adair highlighted the “very closely parallels” between West Coast LEAF’s submission and A.B.’s application. This appearance of bias is troubling.
I have previously written about Steven Galloway’s right to the presumption of innocence. While West Coast LEAF’s assertion of Galloway’s guilt – prior to any trial or evidence—is protected by privilege in a court, it is nonetheless troubling coming from a group that purports to be intervening for the public good.
Further, West Coast LEAF claims that the statements they want protected are “discourse that enhances the dignity, safety, privacy and equality of survivors.” This, in the complete absence of any proof that the statements are true, or that the “survivor” is in fact a survivor. The speech to be protected includes tweets calling Galloway “human garbage” and comparing him to the serial killer Robert Pickton. How does this enhance the dignity of anyone or any conversation?
Ms. Birenbaum also told the Court last week that Galloway’s action is hostile to “charter protected groups.” But is this true?
In June of 2017 the Honourable Jody-Wilson Raybould, the third woman and first indigenous person to hold the position of Minister of Justice and Attorney General of Canada, appointed Palbinder Kaur Shergill, Q.C. to the bench of the Supreme Court of British Columbia, making her the first turbaned Sikh woman to be appointed as a judge in Canada. In a recent decision, she stated the need for balance succinctly when she wrote, “while society has an interest in encouraging the reporting of sexual offences, society also has an interest in ensuring that the offences reported are truthful.”
By intervening in Galloway v. A.B. the way they did, West Coast LEAF now stands opposed to Madam Justice Shergill’s plainly just position on the public good.
Denying Galloway his day in court, even if the allegations against him are false (as West Coast LEAF argues), is a continuation of the prolonged barrage of unfounded hatred and bias that has destroyed his life. He has a wife and three daughters. Their lives have been difficult because, well, you know, their husband/father was called a rapist for years while being rendered unemployable. West Coast LEAF says they want to protect women, but I guess not these ones.
Tens of thousands of tweets were published attacking Steven Galloway. He is now suing the 25 people who directly called him a rapist. Like all citizens he deserves access to justice and on organization such as West Coast LEAF should not stand in his way.
It is essential that women be able to speak about rape on public platforms. But it is also essential that they speak the truth. What is “in the public good” is for people to understand that if you are going to accuse someone of a major crime in the reckless absence of proof, you are entering the legal arena.
If the full defamation case goes to trial the public will finally be allowed to see all the facts, and the court will weigh in on the defence of “truth.” The judge will make a determination on whether or not a rape occurred. This is the process that West Coast LEAF would like to stop.
I can think of few things as unjust. I would like to believe that West Coast LEAF didn’t think their advocacy through; that they didn’t consider that if their brothers, sons, fathers, companions, or friends were falsely accused of rape, they would have no legal recourse. And I don’t believe they understood the structural racism they are in fact endorsing. They have a strong track record in supporting gender equality but in continuing to do so they must also consider that false allegations are real, and all people affected, particularly men of color, need a mechanism to address them and seek justice.
Last week Ms. Birenbaum, told the Court that false accusations are a “foundational rape myth.” Rape myths are real and have no place in our courts but what Ms. Birenbaum fails to realize is that by denying the existence of false allegations, she is not dispelling rape myths but perpetuating them.
153 of the 268 exonerations at the venerable Innocence Project were for rape. The National Registry Of Exonerations breaks the data down to illustrate the problem of systemic racism in sexual assault convictions. Fifty-nine percent of sexual assault exonerees are African Americans, four-and-a-half times their proportion in the population. Black defendants convicted of raping white women are about eight times more likely to be innocent than white men convicted of raping women of their own race. Judging from exonerations, a Black prisoner serving time for sexual assault is three-and-a-half times more likely to be innocent than a white sexual assault convict.
Can Ms. Birenbaum then tell us that racism does not exist in this country and that making false allegations of sexual assault protected speech in Canada will not have a disproportionate effect on Canadian Black Indigenous People of Color? And when I say “people” I do not just mean men. Yes, I mean the men but I also mean their wives, daughters, mothers and all their loved ones. I also mean my son.
As the mother of an Afro-Latinx teenage boy I must be vigilant. How can I raise my boy in the midst of systemic racism? Must I tell him not to help the young girl in the elevator? Must I tell him that if he is falsely accused, he will be rendered voiceless? Will I have to tell him that this is because a women’s rights legal organization sees his obliteration as a means to justice?
I am Latinx. Trump slandered the men in my community as rapists. What if the next “Trump” is a woman? Am I then to look away from the damage caused to the men in my life and stand down for fear of stopping what I’m told is the dignified discourse of sexual assault? For those who are falsely accused of sexual assault, their only hope of clearing their names is by seeking exoneration through a defamation suit. Anyone sincerely interested in justice “for all” must test their own biases: when are we helping the mission for equality and fairness, and when are we subverting it?
While I believe that West Cost LEAF’s heart has historically been in the right place, their current advocacy is short-sighted, unjust, antithetical to their mandate and systemically racist. They have become an organization that requires deep soul searching. I call on them to do it.
Carmen Aguirre is an award-winning author of over 25 plays and the international bestseller Something Fierce: Memoirs of a Revolutionary Daughter.
You may read The Honourable Madam Justice Adair’s Oral Reasons for Judgment dismissing West Coast LEAF’s application for intervenor status by clicking here.