REPORTING SEXUAL ASSAULT: WHAT PRIVILEGES SHOULD EXIST IN DEFAMATION SUITS STEMMING FROM A POLICE REPORT?

• Author: Rubery, Katharine

Introduction 908 I. Sagaille v. Carrega and the Current Privilege Paradigm 910 A. Sagaille v. Carrega 910 B. Review and Analysis 914 II. Surveying the States: Privileges Available to Victims 917 A. The Majority Rule: Qualified Privilege 918 B. The Minority Rule: Absolute Immunity 920 III. New York Should Adopt a Limited-Scope, Absolute Privilege 923 A. Adopting a Limited-Scope, Absolute Privilege 923 B. Policy Reasons in favor of a Limited-Scope Privilege 924 1. Applying a Limited-Scope, Absolute Privilege Will Encourage People to Report Sexual Assaults 924 2. Adopting a Limited-Scope, Absolute Privilege Will Not Increase Incidents of False Reporting 925 3. Protecting Procedural Safeguards for Victims of Domestic Violence Requires a Heightened Privilege 926 4. The Law is Already Adopting a Limited-Scope, Absolute Privilege for College Campus Reporting for Public Policy Reasons 927 C. Responding to Critiques: Potential Limitations on the Limited-Scope, Absolute Privilege 928 Conclusion 932 INTRODUCTION

Five years ago, #MeToo was used over 19 million times on social media platforms in one year, allowing survivors to share millions of stories of the sexual assault and harassment they endured. (1) Through that movement, over 200 high profile figures were exposed for their alleged commission of unwanted sexual acts, (2) and the movement became the driving force behind a national reckoning with the acknowledgement and punishment of these crimes. (3)

Despite the general change in beliefs, this movement was met by a rise in retaliatory defamation cases by alleged abusers, accusing the victims of being opportunistic liars. (4) Harvey Weinstein threatened a suit against the New York Times in the wake of their expose, and author Stephen Elliott filed a defamation suit over his inclusion on a "Shitty Media Men" spreadsheet. (5) Even former President Donald J. Trump tweeted to his audience of nearly 60 million followers that now-Justice Brett Kavanaugh should sue his accusers--who emerged during his confirmation hearings--for libel. (6)

This harsh reality tracks with national reporting statistics: 81% of women and 43% of men report experiencing some sort of sexual harassment or assault in their lifetime, (7) yet rape is still the most under-reported crime. (8) Historically, victims have chosen not to report their assaults for many reasons, including financial consequences, guilt, fear of discrepancies in their stories, and public shame. (9) Now, liability resulting from highly visible defamation suits may be another. Specifically, suits for defamation--generally defined as "a statement that tends to injure a person's reputation, exposing him or her to public hatred, contempt, or ridicule" (10)--can deter people from reporting crimes for fear of facing subsequent litigation that can retraumatize individuals. (11)

Recently, New York courts have passed on the opportunity to resolve a case that could have encouraged victims of sexual assault to report their crimes. In Sagaille v. Carrega, a man accused of sexually assaulting a woman used her original police report from the incident as the basis of his defamation claim against her. (12) In New York, this is a legitimate cause of action, as police reports are only given a qualified privilege in defamation suits, unlike the absolute privilege provided to later elements of the investigatory process. (13) While the court dismissed his claim for reasons discussed later in this Comment, the dismissal highlighted a serious issue within our current justice system that urgently needs resolution.

This Comment explores the current protections against defamation suits available to people who choose to take the brave step to report a sexual crime to the police. Part I provides a brief overview of defamation law and delves into the Sagaille case to provide a contemporary illustration of the problematic contours of the qualified privilege for police reports, as applied to defamation claims against sexual assault victims. (14) Part II broadly surveys the differing state policies presently in force and the courts' reasoning behind invoking such privileges. (15) Part III then provides public policy arguments supporting a need for a heightened privilege in New York and concludes by offering a resolution--the adoption of a limited-scope, absolute privilege for all statements made by victims in police reports. (16)

1. SAGAILLE V. CARREGA AND THE CURRENT PRIVILEGE PARADIGM

   This Part introduces the case at the center of this Comment and explores how the principal issue for the court--the application of absolute or qualified privilege--has the power to prevent people from reporting sexual assaults.

   1. Sagaille v. Carrega

      In Sagaille v. Carrega, the First Department heard arguments over whether an absolute privilege should be extended to police reports in sexual assault cases. (17) The case came about after Carrega, a reporter, met Sagaille, a former assistant district attorney in the sex crimes unit of the Brooklyn District Attorney's Office, at a baby shower of a mutual friend. (18) The day after the shower, Carrega reported that Sagaille sexually assaulted her while she was driving him home. (19) She alleged that he grabbed her face, tried to kiss her, and touched her body without her consent. (20) Sagaille was originally arrested on a first degree felony sex crime charge, but was later arraigned in Brooklyn Supreme Court on two misdemeanor counts of forcible touching and third degree sexual abuse. (21)

      At trial, the victim testified to Sagaille "grabb[ing] [her] face" and "put[ting] his tongue in [her] mouth," while the defense attorney argued that the charges were unwarranted. (22) He told jurors that "with a manufactured case, you can ruin someone's life." (23) Sagaille then took the stand and stated that everything was completely consensual. (24) At one point during the trial, Sagaille's father was reprimanded by the presiding judge for threatening the victim by making a gesture to the throat as she testified. (25) The case embodied the unfortunate and harsh realities of what it is like for a person to fight back against their alleged assaulter in court--a case of "he said, she said." After sixty hours of deliberation, (26) the trial was adjourned because the jury could not reach a unanimous verdict. (27)

      Shortly before the criminal trial started, Sagaille filed an action against Carrega and her employer, the Daily Mail, asserting claims for libel per se, defamation, injurious falsehood, (28) and prima facie tort, (29) and alleging that she had lied to the police about the assault. (30) The basis of the plaintiff's claim was the police report that Carrega filed after the alleged assault, as no suit can be sustained from the statements at trial. (31) The plaintiff further alleged that the defendant acted with actual malice, reporting the assault for the purpose of "'further[ing] her career by creating a false sex crimes story against an assistant district attorney whose job it was to prosecute sex crimes." (32) Judge Kahn granted the Daily Mail's motion to dismiss, but denied the dismissal of claims against Carrega. (33)

      Carrega argued that the case against her should be dismissed as she was entitled to an absolute privilege for her statements to the police. First, she argued that an absolute privilege should be invoked to protect her police report as it would better keep with the public policy of encouraging victims of sex crimes to come forward. (34) In the alternative, Carrega argued that, if the statements within the police report were only afforded the qualified privilege, the plaintiff's claims still failed because he did not sufficiently plead "the existence of malice by either 'ill will' or 'knowing or reckless disregard of a statement's falsity'" to overcome the privilege. (35)

      The lower court rejected plaintiff's arguments that she was protected by an absolute privilege. (36) While the court noted the tension between society's interest in crime reporting and the aggrieved party's right to protect his reputation, the case was too dissimilar from other situations where the courts had adopted an absolute immunity. (37) Carrega was not legally required to file her report, and the accused was not protected against unwarranted injury to his reputation. (38) Since Carrega did not make her statements in an official capacity as a government employee nor in a judicial or quasi-judicial hearing, the court would not adopt an absolute privilege. (39)

      Instead, the trial court found that the statements made to the police were protected only by a qualified privilege, but the plaintiff's allegations were sufficient to overcome it because actual malice could be inferred from the accusations of "reprehensible criminal conduct." (40) In his complaint, Sagaille set forth Carrega's motivation for filing the report, and because malice refers to the speaker's motivations in making the statement, the "radi[c]ally divergent versions of the underlying salient facts... presen[ted] credibility issues best left to the trier of fact." (41) There could be no dispute that if the statements to the police were false, a jury could find that they were made with the sole intention of harming the plaintiff, and thus the motion to dismiss was denied. (42)

      The First Department reversed the lower court's decision and found that Plaintiff's statements were protected by qualified privilege. (43) It held that the lower court inferred actual malice from the "'reprehensible' nature of the allegedly false accusations" without citing authority to do so. (44) The plaintiff failed to allege actual malice as defendant's statements were not "excessive or 'vituperative,'" but rather they constituted a "straightforward" and "restrained" recitation of the events. (45) Further, the allegation that this statement was a lie to further Carrega's career was lacking in basis and entirely speculative. (46) Conjecture alone is...