Free Speech

Interesting #TheyLied Appellate Libel Decision in Response to #MeToo Claims

I've been seeing many such libel lawsuits recently, though only a few have gone so far as to yield a verdict for the libel plaintiff.


From Louisiana Court of Appeal Justice Paula Brown's opinion (joined by Justices Edwin Lombard and Regina Bartholomew Woods) in Doe v. Lewis, decided by the Louisiana Court of Appeal on Dec. 30 but just posted on Westlaw:

Jane Doe filed a lawsuit against Mr. Lewis seeking damages for alleged assault and battery, rape, and false imprisonment. Mr. Lewis filed an answer and a [counterclaim] against Jane Doe for defamation…. At the conclusion of the [bench] trial, the district court dismissed Jane Doe's case with prejudice, and found in favor of Mr. Lewis on his [counterclaim], awarding Mr. Lewis $75,000.00 in general damages and $18,462.14 in lost wages…. Jane Doe appeals, challenging only the district court's finding of fault against her for defamation of Mr. Lewis. {Jane Doe does not appeal her underlying case asserting the allegation of rape against Mr. Lewis, which the district court dismissed with prejudice.} …

Jane Doe resided in New Orleans, Louisiana, in 2013. Mr. Lewis resided in Baton Rouge, Louisiana. The two had been friends for several years and both were registered nurses. On July 20, 2013, Jane Doe had a birthday party, which Mr. Lewis attended. Prior to the party, Jane Doe and Mr. Lewis discussed that he could stay at her house and sleep on the couch in the living room, if he did not want to drive back to Baton Rouge. Jane Doe rented a party bus for the party. Jane Doe, Mr. Lewis, and other guests were drinking alcohol and dancing on the party bus. After returning home, Jane Doe and some of her guests went to a nightclub. Mr. Lewis stayed at Jane Doe's house and went to sleep in the extra bedroom.

When Jane Doe and several of her guests, including a couple, returned, Mr. Lewis was awakened. The couple planned to sleep in the extra bedroom. After the couple retired to the extra bedroom, Mr. Lewis and Jane Doe had sex. Jane Doe alleged it was non-consensual; Mr. Lewis alleged it was consensual.

On July 24, 2013, Jane Doe filed a police report with the New Orleans Police Department, alleging Mr. Lewis raped her. Mr. Lewis was arrested on the charge of simple rape … on December 31, 2013. Mr. Lewis testified he spent around 8 to 10 hours in jail and was released after posting bond in the approximate amount of $1,200.00. In 2014, the Orleans Parish District Attorney refused the charges against Mr. Lewis.

At trial, Jane Doe's attorney admitted that Jane Doe contacted Mr. Lewis' professional licensing board, the nursing board, and informed it of the alleged rape by Mr. Lewis. Mr. Lewis stated that after he was arrested he also contacted the nursing board to inform it of the pending charge as he was required to do. Mr. Lewis recalled Jane Doe had contacted the nursing board the week before he did. Due to the accusation, the nursing board conducted its own investigation.

Mr. Lewis was employed by the Louisiana Department of Public Safety and Corrections where he worked as a registered nurse at the Louisiana Correctional Institute for Women ("LCIW"). Mr. Lewis testified that Jane Doe contacted his work multiple times. Ms. Holland, the Assistant to the Warden at the LCIW, testified that she received a letter, via fax, from Jane Doe stating that Mr. Lewis sexually assaulted her. Ms. Holland gave the letter to the Warden of LCIW. She recalled Mr. Lewis was placed on administrative leave because of the accusation. Mr. Lewis testified he was on administrative leave for 544 hours and lost wages as a result….

We conclude that the district court was correct in finding Jane Doe's statement was defamatory per se. We note the district court, after trial on the merits, found that the criminal accusation of rape against Mr. Lewis was false and dismissed Jane Doe's petition for damages against Mr. Lewis with prejudice. This judgment of dismissal is a final judgment, as Jane Doe did not challenge the district court's judgment. Consequently, the record before this Court supports the district court's finding that Jane Doe communicated to another person, other than Mr. Lewis, the false criminal accusation that Mr. Lewis raped her.

Jane Doe, however, contests whether Mr. Lewis proved the element of unprivileged publication/communication to a third party. Because this is the only element of defamation Jane Doe contests, our review is limited to this element….

Jane Doe essentially argues that her communication to the nursing board was a conditional or qualified privileged communication…. She argued that as a registered nurse she had a duty to report Mr. Lewis' conduct, citing La. Admin. Code tit. 46 Pt XLVII, Section 306(T)(8)(m) which provides the nursing board will have grounds for disciplinary proceedings against a nurse who "fail[s] to report, through the proper channels, facts known regarding the incompetent, unethical, or illegal practice of any health care provider."

However, … to enjoy a conditional privilege, as affirmatively asserted by Jane Doe, she must show that the communication/publication was made in good faith…. [T]he district court found that Jane Doe failed to prove the rape accusation against Mr. Lewis; the district court reasoned that it did not find Jane Doe's testimony credible and "she … created a fictional account of her encounter with Mr. Lewis." Jane Doe did not challenge this finding.

Accordingly, we conclude Jane Doe failed to prove—at the time she communicated the criminal accusation against Mr. Lewis to the nursing board—that the communication was in good faith….

Turning to Mr. Lewis' award of $75,000.00 in general damages, Jane Doe asserts the district court abused its discretion in determining Mr. Lewis' general damage award as it was not supported by the evidence presented at trial. Jane Doe contends that Mr. Lewis, during his deposition, only testified that he had trouble sleeping, and Mr. Lewis failed to prove any damage to his reputation due to the alleged defamation….

Mr. Lewis testified how he suffered, following his arrest for the alleged rape:

"Well, my marriage has definitely suffered dealing with—I coach soccer. I have two daughters. I deal with them. I cannot have their friends sleep over. I cannot have my daughter's cousin sleep over with me being there…

"I was arrested[.] [I] did … go to Orleans OPP for something I did not do. It does affect my every day dealings when it comes down to being in the presence of women … If a woman walks in my office alone, I will get up and open my door if she closes my door … I do not want to put myself in a position where someone can do that to me again."

Mr. Lewis testified he had issues sleeping, eating, and dealing with his problems, and as a result, he spoke to a counselor. Mr. Lewis stated that he lived in fear as a result of going to jail for something he did not do. Mr. Lewis continued that he still has trouble sleeping and the prolonged matter has worn him down.

In addition, [Caroline Moore, a coworker of Mr. Lewis's], when questioned about how Mr. Lewis acted when he returned to work after his administrative leave, responded that Mr. Lewis was embarrassed and uncomfortable "returning with those allegations over his head." She continued that prior to being accused of rape, Mr. Lewis was very friendly, but that changed for a long time after he was accused….

We find the record supports the district court's findings. Mr. Lewis presented competent evidence of the injuries he suffered as a result of the defamatory statements and the statements were a substantial factor in causing the harm….

Note that the plaintiff was likely allowed to litigate pseudonymously because she was alleging that she had been raped; that's one commonly accepted exception from the rules that generally require people to sue using their real names. And the court's conclusion that the allegations were false didn't lead to a change in the caption. (Some have suggested that accused rapists should also be able to litigate such cases pseudonymously as well; but that generally hasn't been allowed, except in cases brought by college students challenging Title IX sexual misconduct proceedings.)

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  1. Jane Doe should go to prison for each of the times she lied to a government official. The police, the licensing board, the employer should each compensated the falsely accused for all costs, including emotuonal distress. To deter.

    Almost all allegations by people who know each other are false. That is well known to these biased, lawyer feminist intimidated organizations.

    1. Lathering the rubes
      Lathering the rubes
      Deftly triggering clingers
      Lathering his rubes

      1. Shaving off the pubes
        Cleaning up the pubes
        Artie opens wider now
        Where’d I put the lube?

        1. Artie was banished by this blog’s proprietor for making fun of conservatives — which was the proprietor’s right, even as the proprietor complains incessantly about similar viewpoint-driven censorship when imposed by others.

          I am Arthur.

          1. “I am Arthur.”

            Artie the obsolete.

  2. I would think that the presumption in favor of facts being made public should always apply to rape accusers, once they admit (or the court determines) that they lied. After all, the publication of the original charge itself has done damage that can’t be undone.

    1. Remember the William Kennedy Smith trial and the blue dot — which disappearred and became Patricia Bowman when he was found innocent? I think this should be the rule here.

      We have two nurses here — one whose name is a matter of public record and the other whose isn’t. That’s an issue…

  3. This case appears to be nothing more than a he said/she said. The trial judge found Mr. Lewis more credible than Jane Doe. The fact that Jane Doe had postponed the trial multiple times claiming the existence and unavailability of corroborating witnesses may have contributed to that.

    The fact that the judge didn’t find her credible isn’t conclusive proof she’s lying.

    It seems to me that there has to be a gray area of “not proven,” where the courts don’t find for either side and we all go back to our lives. I am troubled with a lottery system where one side wins big and the other side loses big. Neither side here appears to have had any evidence except its own word.

    Also, since appelate courts don’t revisit credibility determinations, Jane Doe had very little basis for challenging the trial judge’s finding that a rape never happened, except to challenge the judge’s failure to grant a continuance (which she did). For this reason, I don’t think the appellate court should have used the fact she didn’t appeal it as an admission that the trial judge was correct.

    1. Just because many men are furious about false rape accusations, which do happen, doesn’t mean that every time an accusation isn’t proven, the accuser should be tarred and feathered. The law doesn’t use binary logic. Not guilty does not mean innocent. It just means there isn’t enough proof of guilt.

      Human beings tend to think in binaries, with only teo alternatives. And when we get angry, or feel really strongly about something, our tendency to think in binaries gets even stronger. But binaries are often artificial constructs of the human mind. They exist in the natural world much less frequently than we tend to think they do.

      1. Well, rape accusations are pretty binary. If you say somebody raped you, then either they damaged you or you damaged them.

        And in a preponderance system, we award money to the party that shows that they are most likely to be entitled to it, since wrongly denying someone damages is equally harmful to wrongly awarding them.

        So there’s not much room for a grey area.

        1. It’s still a grey area. It just turns into a forced choice system (guilty or not, pay for a lie or not) that converts the outcome to binary. The input data is still grey.

      2. ReaderY: I certainly agree that, just because an accused rapist isn’t found guilty beyond a reasonable doubt of rape, that doesn’t mean that the accuser is guilty beyond a reasonable doubt of perjury. Indeed, it doesn’t even mean that the accuser is more likely than not guilty of defamation when she made the accusation outside court.

        Likewise, just because an accused rapist isn’t found liable, in a civil case, by a preponderance of the evidence (i.e., under a roughly 51% standard), that doesn’t mean that the accuser is more likely than not (again, under a roughly 51% standard) guilty of defamation. The evidence could be 50-50.

        But in the latter case, it does seem pretty easy for a factfinder to say the evidence isn’t quite 50-50, but, say, 45-55, with the preponderance being in the defendant’s favor. If that’s so, then under ordinary libel principles the accuser is indeed liable. There’s no “conclusive proof” the plaintiff was lying, but the civil justice system doesn’t require conclusive proof when it comes to compensatory damages in private figure libel cases. (It does require clear and convincing evidence of “actual malice” in public figure libel cases, and it often requires clear and convincing evidence for punitive damages generally; but those aren’t the general rule.)

        Is your view that, when it comes to libel cases such as this one, 51% evidence in favor of the libel plaintiff (and, here, sexual assault defendant) shouldn’t be enough, and something more should be required?

        (I also don’t think the appellate court used her not appealing the judge’s finding as an admission on her part; it was just a footnote in the opinion, which the court included — and I included — to help explain why the opinion is focused on Lewis’s libel claim and not also on Doe’s rape claim.)

        1. BUT, why *wasn’t* she criminally charged for what ought to be a serious crime…

          I know the Eighth Amendment (and the legal nicities you mention above) would both preclude this, but when a man is found not guilty of rape, I’d like to see the bailiff remove every stitch of clothing from the accuser and force her to walk — stark naked — out of the courthouse, past the assembled media, and the rest.

          *That* would be justice because that is what she did to the man…

          1. She should at least lose her nursing license.

            *I* wouldn’t want a nurse who had falsely accused a man of rape caring for me — not without multiple videorecorders running….

            1. Why does falsely accusing a non-patient of rape have any more bearing on professional fitness than raping a non-patient?

              1. Perjury & medical records.

              2. Because someone willing to falsely accuse a co-worker of rape is likely to be equally willing to accuse a patient of rape. Or lying about other things relevant to my care. I wouldn’t want her treating me either.

                1. But you’d have no qualms about a rapist doing so?

                  1. A convicted rapist would be in jail until completion of his/her legal sentence. So I don’t have to worry about an actual rapist being my nurse.

                    After completion of the sentence, the person is assumed to be rehabilitated and, unless there is evidence to the contrary, is allowed to go back to work. And in the majority of cases, the risk of recidivism is close to the rate of new criminals. With the exception of a couple of sensitive jobs where post-conviction occupational limits really are justified, no, I don’t have great qualms after.

                    1. There’s an asymmetry in the quantum of evidence for a convicted rapist versus an accuser not being found to be credible.

            2. “She should at least lose her nursing license.”

              Generally people suspected of serious crimes should be tried in criminal court and jailed if convicted, left alone if not. These half-measures we’ve been seeing make it difficult to have a credible system.

          2. “BUT, why *wasn’t* she criminally charged for what ought to be a serious crime…”

            It’s a he-said she said. There’s probably not enough evidence to prove beyond a reasonable doubt that she lied.

        2. Professor Volokh,

          I think that in a he said/she said case, where My impression is that one witness is slightly but only slightly more credible than another (51/49) than another, I wouldn’t be inclined to find the slightly less credible witness is lying based on that. My subjective ceedibility determinations could easily be biased or prejudiced. People who are telling the truth could be nervous and look uncomfortable, or just not look like my kind of people. People who are lying could be tall, handsome, and project confidence. (We’ve certainly seen our share of that in the last four years).

          In practice, I’d probably require maybe 55% or 60% even in civil cases. I’d leave some gray area where it’s a wash. And when it’s simply a he said she said with no corroborating evidence either way, I’d be especially disinclined to conclude, from the fact I find one party less credible, that that party’s accusations are defamatory. I’d want to see some sort of contradiction between what they said and some sort of extrinsic corroborating evidence to reach that conclusion.

        3. Also, Professor Volokh, I understand the hashtags help your blog gain attention and readership. But I don’t think they help the analysis of the case. We have to — it’s vitally important – look at the parties here as just too people, just individuals in their own right, not as symbolic representatives of or scapegoats for causes and movements.

          If you believe in #metoo, you have to nonetheless still see her as just an individual and be open to the possibility that her testimony isn’t creditable. If you believe in #Theylied, you have to still be open to the possibility that her testimony is.

        4. Just as an aside I have some limited experience in admiralty law through a friend and fellow sailor. While it is a big ocean it is quite common for boats to somehow manage to smash into each other. The term stand on vessel is used to describe the vessel that is to maintain it’s course and speed while the term give way vessel is used to describe the vessel that changes it’s course/speed to avoid a collision. But both boats have the obligation to change course/speed if a collision is imminent.

          If a collision case is brought before an admiralty court the court will not assign a binary blame but will find each party responsible for a percentage of the liability. The theory is that in almost all cases one party is not 100% responsible for the collision (it is a big ocean) and getting out of the way at the last second no matter who is the stand on vessel it should be possible to get out of the way.

          As a rule I always adhere to the “law of tonnage” and while my 42 foot catamaran is quite comfortable for me to cruise on I would never dare to challenge a super tanker or super yacht that literally could be an order of magnitude larger than my boat.

          Point is that while I don’t condone rape, or the idea that “she was asking for it”, I have seen females take chances that don’t seem prudent to me. If a female invites a male into her house she needs to realize there may be some risk involved. On the other hand if a male accepts the invitation there is a risk (usually much smaller) that a false rape charge may happen.

          As another aside I have a limited knowledge of the Law of the Seas treaty. Another friend (in his 60s) sailed from San Diego to Tahiti with a crew of four twenty something females. Once they arrived the females jumped ship and contacted the local government and demanded they be repatriated to San Diego as a crew can claim under the LOS. The sixty year old skipper was required to shell out five figures for plane tickets for the young lovelies to go home.

          1. One of the big problems in higher education is female students who wear short skirts, without underwear, and then get so drunk that they pass out on the floor…

            The unmentioned problem with dealing with sexual assault allegations in higher education is that (almost inevitably) *both* parties were so drunk and/or high that neither has a complete memory of the evening. They only have little bits & pieces, snippets of what they *think* happened, but even then they aren’t completely sure.

            And mothers would be mortified if they knew how their daughters walked through the hallways of the coed dorms, particularly going to and coming from the shower. That doesn’t help anything….

            1. Is that a bug or a feature of college life?

              1. Speaking as someone who’s had to try to (fairly) sort it out the week after, I’d really (REALLY) like mothers to have a chat with their daughters…

                No one “wins” in these situations…

            2. Good lord, you’re an irredeemable piece of subhuman shit.

      3. Bullbleep. A false rape accusation IS a form of rape and should be treated as such!

        1. But how can you conclude, from the fact that you find A’s testimony less credible than B’s, that A’s testimony is false? That’s quite a leap.

          1. The standard is preponderance. So unless they are equally credible, somebody wins and somebody loses.

            1. The problem with taking it that far is it means the law gives an unjust result a very large fraction of the time. Preponderance needs to take into account the false positive rate.

              Consider a poll that has an accuracy of +/- 5%. If you declare someone a winner at 51% based on the poll, then there is a very high chance the declaration is wrong.

              Credibility determinations are probably at least as erroneous as polls.

              When the law totally disruots people’s lives, e.g. destroys their ability to have a career, based on something with such a known high error rate that you know objectively that it’s going to make the wrong call a very high percentage of the time, it acts far more unjustly than if it restrained itself and did nothing.

              1. “When the law totally disruots people’s lives, e.g. destroys their ability to have a career, based on something with such a known high error rate that you know objectively that it’s going to make the wrong call a very high percentage of the time, it acts far more unjustly than if it restrained itself and did nothing.”

                Yeah, the best place to handle rape allegations is in criminal court.

                But IIUC the defamation suit will just cost her money, not ruin her life, correct?

            2. No, the standard is actually probable cause because the man’s life and future are essentially ruined if he is arrested & charged.

              Even after winning this, do you think this guy would ever get hired anywhere else?

              1. The guy didn’t even get fired, you ignorant buffoon.

                1. Notwithstanding that, say he wanted to semi-retire to a less stressful job, say at a nursing home, as older nurses often do.

                  It’s actually the career path in nursing, older nurses going to doctor’s offices, schools, and nursing homes.

      4. It probably means that the left needs to think of accusations of sexual assault, rape, and harassment are political footballs and status symbols. Also using it to “get” people when encouraged to just make up stories about these is doing a real disservice (as you allude to here) to people who might have actually gone through these horrific events.

      5. If she hadn’t tried to destroy his life by contacting all those other agencies, you would have a point.

        Since she did, you don’t. She didn’t just accuse him of rape, she attempted to destroy his life without the benefit of a trial.

        For that she deserves, having had her trail, to have her life destroyed.

        If I lived in LA, I’d want to know who she was. So I could make sure I was never in a position where she could try to destroy my life with a false accusation

    2. It seems to me that there has to be a gray area of “not proven,” where the courts don’t find for either side and we all go back to our lives.

      Losing your affirmative claims is what happens when they’re not proven. I don’t see how you’re proposing anything different.

      She didn’t prove her claims. He proved his (a counterclaim).

      1. Delicious Vietnamese food, right? That’s why there’s a queue for the pho.

        1. Or one could see it as a “vulgarity,” much like “c_p succ_r,” and refer it to the Volokh Conspiracy Board of Censors for deletion.

          Or one could not, particularly if the writer’s politics were perceived as a point of distinction.

          The playground’s proprietor gets to make — and to break — the rules. Others get to opine with respect to that conduct. May the better ideas win.

          1. Whiskey Tango Foxtrot???

            1. I will defer to the proprietor for explanation.

              If he has the courage to confront a phony’s conduct.

          2. Artie. That is a lawyer utterance, stupid nitpicking. Thank you for confirming your profession. I was doubting your claim of being a lawyer.

          3. “May the better ideas win.”

            Or in this case, may the worse ideas bite the better ideas’ kneecaps off.

            1. The clingers’ reach in these parts never gets higher than the ankles.

        2. A client who opened a Vietnamese restaurant with a punny name was thinking of using that for the takeout line. He passed on it, and I figured it needed to live on in some small way.

    3. While there is a grey area in he said/she said cases, those circumstances don’t generally end in “dismissed with prejudice” decisions. Unless you think the trial judge abused discretion in that decision, there doesn’t seem to be much grey in this particular case.

    4. There is something important that all of you are ignoring in this meandering discussion. We are seeing a brief summary with none of the witness testimony or supporting evidence.

      It could be a he-said/she-said.
      However, based on the result, I suspect it’s at least a she-said vs he-said plus her “I had a great time, lets do it again” text messages.
      It might even be a “voicemail saying if you don’t leave your wife to come with me, I’m going to ruin your life” situation.
      It could be that she gave extremely different stories every single time she told it.

      All this discussion about preponderance of evidence are ignoring the core fact that we don’t know ANY of the evidence.

    5. “It seems to me that there has to be a gray area of “not proven,” where the courts don’t find for either side and we all go back to our lives.”

      He didn’t get to just go back to his life.

      So neither should she

  4. Longest five days ever?

    On July 24, 2013, Jane Doe filed a police report with the New Orleans Police Department, alleging Mr. Lewis raped her. Mr. Lewis was arrested on the charge of simple rape five days later, on December 31, 2013.

    1. Things move slowly in Louisiana ….

      I hadn’t noticed that when I copied that passage from the opinion into the post; I expect they meant “five months,” but I just deleted that to avoid the distraction.

  5. Torts are not my forte, but much in this case confuses me.

    As I understand it, allegations made in a police report, like allegations made in court, are privileged and cannot form the basis for a defamation claim. So, the alleged defamatory communication in this case is Doe’s communication to the nursing board that Lewis had raped her.

    But of course, when Lewis is arrested a week later, the rape allegation is essentially announced to the world. So, his damages (lost sleep, etc.), it would seem to me, stem from the arrest and criminal charge, not Doe’s communication to the nursing board. In other words, had Doe never contacted the nursing board, Lewis’ “damages” would have been exactly the same, though, presumably, there had been no defamation (in the legal sense).

    What am I missing?

    1. IANAL, but *are* false allegations made to the police privileged?

      If they were, there never could be a suit for false arrest for shoplifting – yet loss prevention folk have told me that such suits are real, and it’s why some places merely trespass rather than prosecute.

      1. (It took me a moment to decipher that opening acronym.)

        The answer to your question is, generally, yes. Say you filed a police report that “John Smith shot at me.” But it turns out you were wrong. It was actually a guy that just looked like John Smith. Or you looked in the direction of the shot and saw John Smith, but the shooter was actually someone else.

        The reasoning for not allowing that statement to be the basis for a defamation claim is that, were it otherwise, people might be discouraged to report crimes if they were less than 100% certain, which would not be good for society in general.

        As for you example, you could sue for false arrest or false imprisonment, but not defamation, which is a different tort with different elements.

    2. As I understand it, the law varies from state to state. In some states, people can’t sue for libel over knowingly false police report complaints (this is the “absolute privilege” model), but might sue for malicious prosecution (which has its own limitations) or perhaps abuse of process.

      But in many states, including Louisiana, people only have a “qualified privilege” for police reports, where honest mistakes aren’t actionable libel but deliberate lies (or statements made in reckless disregard of their likely falsehood) are actionable. See, e.g.., Kennedy v. Sheriff of East Baton Rouge (La. 2006).

      1. Interesting.

        Back in the late ’80s, UMass Amherst attempted to put an end to false fire alarms by offering a $500 reward ($1,100 in today’s money) to anyone who told the campus police who’d pulled the fire alarm. (The campus police are the municipal police.)

        Student A reported that Student B had done it. (This was before cameras and all UM had was a “he said, he said.”) The police (then part of the Dean of Student’s Office) pass the report up to the Dean and he proceeds against Student B via the student conduct code.

        Student B’s parents then sue Student A for defamation and (I believe) libel.

        The spinless administration then turns around and says “this is a student versus student dispute and doesn’t involved the university”, abandoning Student A. And, needless to say, that was the end of any student turning another in for these false alarms — even though many would have done it without the reward as it really sucks to have to go out into the snow 2-3-4 times a night…

        I didn’t see the paperwork on any of this but was told about it by those who had.

        1. The other thing though is that MA police reports are not “sunshine documents” — i.e. public documents under the state’s version of the FIOA. Police often won’t release them to the person who is named in them.

          But I presume they’d have to be released during discovery…

    3. The was also the communication to his employer. That seems directed to get him fired.

  6. “a nurse who “fail[s] to report, through the proper channels, facts known regarding the incompetent, unethical, or illegal practice of any health care provider.” [emphasis added]

    Incompetent, unethical, and illegal are adjectives that define practice — how the nurse does his nursing and how he interacts with his *patients*. Not what he does in his personal life.

    If he was accused of raping *a patient*, yes; even if he was accused of having consensual sex with *a patient* (or in this case a prisoner), yes. But not what he does during his off hours, off premises, and with a person over whom he had no duty of medical care, i.e. who neither was his patient nor even a patient of his facility.

    This is an issue in K-12 with mandated reporting laws. In some states, the mandate extends *only* to what the educator becomes aware of in the scope of his professional practice, i.e. the school and the students he knows through the school, etc.

    Others, e.g. Massachusetts (Chapter 51A) make it a universal mandate. Were I to see my neighbor abusing (or neglecting, or placing at risk) her child in her backyard, I would be required to file a report because I am a licensed educator, even though I have absolutely no relationship with that district. (Other than paying taxes to support it and possibly having some of its teachers as my graduate students, but I don’t inquire and they are paying their own money to take the certification courses I teach.)

    I’ve always felt that versions like Massachusetts’ is a 13th Amendment violation, although Chapter 51A doesn’t have any real teeth. Other states (e.g. MD, which keeps changing its law) have laws that do, but they don’t have MA’s universal mandate.

    My point: Why was the purported victim even able to raise the mandated reporter defense when raping her at her house, even if he’d done it, is not an aspect of the “practice” of a nurse?

    Conversely, if there is a “moral turpitude” grounds for suspension of a nursing license and/or termination of state service, why isn’t *her* license being yanked and/or *her* being fired for this?

    1. As an aside, Maryland’s mandated reporting laws are relevant regarding Senator Raphael Warnock (D-GA) and a rather infamous church camp he was in charge of. See:

      While on-line statutes are immensely helpful — they aren’t when one is trying to determine what MD law was in 2002….

    2. Making false reports to government officials is a serious moral violation. She does not belong in nursing. Her license should be pulled. The licenses of the Nursing Board members who falsely investigated the defendant should also be pulled. They are biased feminists and do not belong in nursing, let alone a nursing review board.

      1. Well, two of the judges in this decision, including the one who wrote it, have female names.

  7. Perhaps I’m missing something, but what is “interesting” about this case? Seems like a pretty straightforward application of basic defamation law principles, and with no real description of the evidence it’s hard to develop an opinion about the factual findings.

    1. Justice for men comes to mind — it’s been lacking for the past 40 years…

      1. I thought the legal system was biased against males. I then spoke to a female physician getting divorced from a stay at home lawyer husband. Nightmare for her. The judge of the case asked him out on date after he was divorced.

        I have concluded the legal system is biased against productive people, to plunder their assets.

        1. I’ve done some consulting on divorce cases and I’ve got to say that “equality” has been catching up with family law in the last 10 years. I remember one case where despite a huge difference in income, the trial judge just baldly stated, in open court, “I only award alimony to women…” A few others that come to mind were 60/40 splits in equitable distribution favorable to women with higher earning potentials. Nothing as blatant but it was clear the court was applying traditional gender roles when ruling.

          If you have followed “alimony reform” part of the impetus behind finally confronting this has been the newfound “equality” in marriage. Women getting assessed huge alimony awards against them aren’t happy about that (not that men are when it happens in the reverse, just no one cared about it when it happened to men) and that has caused some changes in this area of policy.

          I’m sure if you are a family law practitioner you see a lot more of this on a day to day basis. But I do think the notion of gender equality has largely caught up in family courts, but it took a good 20-30 years for that to happen.

    2. SEX is always interesting; throw in crime and sex and you are bound to get clicks.

  8. One last thing. The communication that resulted in Jane Doe being found liable for libel was to the nursing board, not to anyone in the general public. I find myself surprised that communications to professional boards don’t have any sort of privileged status in Louisiana.

    1. That wasn’t all she did:
      ” Mr. Lewis testified that Jane Doe contacted his work multiple times. Ms. Holland, the Assistant to the Warden at the LCIW, testified that she received a letter, via fax, from Jane Doe stating that Mr. Lewis sexually assaulted her. Ms. Holland gave the letter to the Warden of LCIW. She recalled Mr. Lewis was placed on administrative leave because of the accusation. Mr. Lewis testified he was on administrative leave for 544 hours and lost wages as a result….”

      I’m actually surprised that he wasn’t entitled to back pay when found not guilty — I’ve seen that happen in Massachusetts.

  9. There are many scenarios where there is a simple mistake and neither is lying. His understanding of what she intended may be different from hers.

    One remembers the case where a New York judge found clear and convincing evidence that a woman wanted to be taken off life support from the look in her eyes. He might have found a look in Jane Doe’s eyes.

    Or she might have regretted the incident later and projected her regret on to the original time, subjectively remembering that she hadn’t consented at the time. People’s memories can be tricky, especially over matters they have strong present emotions about.

    1. The courts opinion says this:

      We note the district court, after trial on the merits, found that the criminal accusation of rape against Mr. Lewis was false and dismissed Jane Doe’s petition for damages against Mr. Lewis with prejudice.

      I haven’t read the trial courts opinion but is seems the trial court may have reached the conclusion that the plaintiff was lying.

      1. It does seem like that.

        1. It is possible that at trial the other people in the house at the time testified that things didn’t happen as the plaintiff testified or that she told different versions at different times.

          It also seems she was out for blood, not only swearing out a police complaint (which the DA refused to prosecute), contacting a professional licensing board and contacting his employer. We don’t know the sequence or timing of those events nor whether she was attempting to deal with personal issues.

  10. There can be a difference between reality and what someone thinks is reality. In 2A stand your ground or castle doctrine one only has to believe there is threat; even if to some folks it would not be a threat at all.

    As a rule males are much stronger than females and can easily over power them so they may believe there is a threat if they do not submit to sex even if the male feels the submission is consensual. Not trying to bash the guy in this case but he was married and seems to have had sex outside his marriage. While I don’t view myself as a prude there is some social stigma associated with this. Being a confirmed bachelor I can’t say how I would act if I was married and was attracted to someone other than a wife.

    1. Louisiana appears to have repraled its adultery law, but has retained its crime against nature law. Although adulterous sodomy would appear to survive Lawrence, which indicated it was leaving adultery laws undisturbed, a peculiarity of Louisiana’s law is that it appears to cover only consensual sodomy – the statute explicitly excludes all conduct covered by Lousiana’s rape and sexual battery laws.

      Assuming that their imderlying conduct included oral or anal sex, a criminal case still could not be prosecuted. Jane Doe claimed there was a rape, meaning that her evidence puts the conduct outside the ambit of the statute. And if Mr. Lewis were of sound mind he would decline to testify, resulting in no evidence that the conduct was consensual and fell within it.

      Adultery still matters for divorce purposes. But Louisiana has declined to give it criminal sanctions. It has also abolished heart balm torts.

      1. Isn’t Louisiana also the exception to most legal principles because it is operating under the Napoleonic System instead of Common Law?

        1. Much of the legalese is different, and some rules are different. But to my knowledge, Louisiana libel law is very similar to the law in other states, as is much of the rest of its tort law (and criminal law).

          1. As a non-lawyer Louisiana resident I am pretty certain that while some terminology may be different most of the laws are similar to other states, and have been getting more like other states over time. One really odd feature of Louisiana law “forced inheritance” was reformed a while ago.

    2. That raises another issue in the case. How much of his “damages” (loss of sleep, social disapprobation, etc.) are attributable not to the rape charge, but to his adultery (and being caught in it)?

      1. “are attributable not to the rape charge, but to his adultery (and being caught in it)?”

        Does that matter? His being caught in adultery is attributable to the rape charge, no?

        1. That doesn’t necessarily follow. Say, for example, rather than accuse him of rape, she had told several people including his wife that he had committed adultery (with her). Since that was true, there would obviously be no defamation. But he would suffer some of the same “damages”, correct? Loss of sleep, friction of hope, loss of reputation in the community, etc.

          1. Assuming anyone cared.

            A married Mass State Trooper was recently arrested for beating up his girlfriend in NH. (The NH is why this is all public….)

            While NH is still holding him without bail (he also eluded 2 NH town cops and a few other things), his wife told the court that he was welcome back in their marital home. Wives often do that, for a variety of reasons…

            And as to reputation in the community, it depends. I’ve seen men’s sexual exploits *enhancing* their reputations amongst their peers. If Doe is good looking, she’s a conquest to a lot of folk. And I somehow doubt that he’s a deacon in the local church.

            He’d only suffer damages if anyone cared — if it harmed his reputation. If neither his wife nor anyone else cared, then….

  11. It seriously bothers me that they’d continue with this “Jane Doe” nonsense, not only after the court found the rape accusation false, (And therefore she wasn’t a rape victim to be shielded.) but even in finding her guilty of defamation.

    Why, as the guilty party, is she entitled to have her identity shielded? I should think that at this point, shielding her identity is actually contrary to public policy, it leaves the public ignorant of who the guilty party really is.

    1. Yeah this is the part that jumped out to me. She has no legitimate call on anonymity at this point.

      1. In Massachusetts, it’s a crime to name her.
        I dealt with this as a student reporter in a rape hoax situation.

        1. No, it’s not, you lying sack of garbage.

  12. Excuse me, but why are we still granting this woman the privacy of a pseudonym after a judge has ruled not only that the accusation was at fault, but that she libeled the victim and perjured herself?

  13. Seems there are potentially three levels of privilege in this case: (1) the police report, (2) the report to the licensing agency, and (3) the repeated reports to the employer. We got the ruling that bad faith reports in the second category are not privileged. I think police reports are absolutely privileged in defamation cases in my state, and presumably also in Louisiana since he didn’t sue over the police report. Given the tendency of online mobs to try to get people fired, I am curious how much protection that third category of information has.

    1. John F. Carr: The Louisiana Supreme Court has held that police reports are only conditionally privileged. That is also apparently the majority rule among American states.

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