The Volokh Conspiracy
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Risky Pleading in Sex-Related Libel Cases
If plaintiff broadly claims that defendant libeled her by "imputing unchastity," she risks having to disclose a lot about her sexual history.
From Judge Dominic Lanza's opinion Thursday in McKnight v. McKnight (D. Ariz.):
The core allegation in this action is that Defendant …, a "well-known singer" and the estranged father of Plaintiff …, posted a video on his social media accounts in August 2019 in which he falsely accused Plaintiff of "having sex" with "an older cousin" when she was a minor. Based on this allegation, Plaintiff has asserted claims against Defendant for defamation and false light invasion of privacy.
The current dispute arises from how Plaintiff chose to characterize the elements of her defamation claim in the complaint. In paragraph 30, the complaint alleges as follows: "On August 16, 2019, the defendant published the above-alleged defamatory statements imputing unchastity to the plaintiff."
During the discovery process, Defendant propounded interrogatories to Plaintiff. As relevant here, one interrogatory asked Plaintiff to "[i]dentify all persons with whom you had sexual contact of any kind prior to August 15, 2019" and another asked Plaintiff to "[d]escribe each sexual encounter you had prior to August 15, 2019, including the person involved, their age at the time, the place the encounter occurred, and the nature of the encounter (e.g., kissing, holding, petting, intercourse)." … [At a later hearing,] Plaintiff argued that the interrogatories were overbroad and oppressive because they weren't limited to the sex-with-a-cousin allegation and instead sought information concerning her entire sexual history, while Defendant argued that because Plaintiff had chosen to characterize her theory of defamation as "imputing unchastity"—an allegation that is far broader than an allegation of incest—she had opened the door to an inquiry into her sexual history, because truth is a defense to defamation and evidence of prior sexual activity would show that any imputation of unchastity was true.
During the hearing, the Court expressed agreement with, and sympathy toward, aspects of Plaintiff's position, noting that "I am as uncomfortable as one can be with the idea of forcing an 18-year-old … woman … to have to answer discovery requests concerning her sex life. I know how private and intensely personal those things are, and I wish that there was some way that we didn't have to go there." Nevertheless, the Court also noted that Defendant's arguments had some force in light of the peculiar wording ("imputing unchastity") of the complaint….
Thus, the Court asked Plaintiff's counsel to explain why Plaintiff had chosen to use that particular phrase in the complaint…. Plaintiff's counsel responded by providing an answer that, at the time, was confusing to the Court. On the one hand, counsel seemed to acknowledge that the "imputing unchastity" language wasn't legally required. On the other hand, counsel then stated, without citation, that "the only reason those words appeared in the Complaint is because that's how Arizona law terms defamation. And so I had to relate what was said to what was recognized in the law."
At the conclusion of the hearing, the Court ruled that it was inclined to allow Defendant to obtain some of the information requested in the challenged interrogatories because Plaintiff had, for whatever reason, chosen to phrase her theory of liability as "imputing unchastity," which "is broader than imputing incest," and "because that's the allegation in this case, the defense has the right to defend itself by seeking information that would show that any imputation of unchastity was, in fact, true." However, the Court also ruled that the interrogatories were problematic as written because "they seem to define sexual contact in an overbroad way." ….
In yesterday's order, though, the court ultimately concluded that discovery on plaintiff's sexual behavior should be limited to sexual contact with relatives:
Although this represents a change from how the Court approached the issue during the March 31, 2021 hearing, and although the Court is not usually inclined to reconsider earlier decisions, the key difference is that Plaintiff has now identified legal authorities that help explain (if not fully justify) why she chose to use the phrase "imputing unchastity" in the complaint. (As noted, the Court expressed some confusion as to this issue during the previous hearing and Plaintiff was unable, at that time, to cite any legal authorities in support of her position.)
Specifically, in the joint statement, Plaintiff cites §§ 570 and 574 of the Restatement (Second) of Torts. A review of these provisions helps explain the genesis of the phrase "imputing unchastity." Section 570 is entitled "Liability Without Proof of Special Harm— Slander." It identifies four specific categories of defamatory statements that are considered so inherently damaging that the existence of damages is presumed. The four categories are when "the publication imputes to the other (a) a criminal offense, as stated in § 571, or (b) a loathsome disease, as stated in § 572, or (c) matter incompatible with his business, trade, profession, or office, as stated in § 573, or (d) serious sexual misconduct, as stated in § 574."
Section 574, in turn, is entitled "Slanderous Imputations of Sexual Misconduct." It provides that "[o]ne who publishes a slander that imputes serious sexual misconduct to another is subject to liability to the other without proof of special harm." As relevant here, the reporter's note to § 574 explains that although this provision was once limited to "imputing unchastity to a woman," it was subsequently "broadened … to imputing serious sexual misconduct." Comment c to § 574 further explains that this change was rooted in considerations of equal protection, because although "[t]he rule stated in this Section has traditionally not applied to the imputation of unchastity in a man … [c]onstitutional requirements as to equality of treatment between the sexes may affect the holdings that an imputation of unchastity for a woman is slanderous per se while a similar imputation for a man is not."
This backdrop helps explain why Plaintiff chose to insert the phrase "imputing unchastity" into her complaint. The Court is satisfied that it was not an attempt to hold Defendant liable under the outmoded theory that women are expected to be chaste and thus any accusation of sexual conduct lodged against a woman, irrespective of the nature of the sexual conduct, is slanderous. Rather, Plaintiff's narrow theory is, and has always been, that Defendant's alleged statement in August 2019 was defamatory for a specific reason— because it alleged sexual conduct of an incestuous nature. Thus, the Court interprets Plaintiff's use of the phrase "imputing unchastity" in the complaint as nothing more than an effort to signal her view that, as a matter of Arizona law, damages are presumed when this sort of incest-based defamation claim is raised.
Given this understanding, there is no reason to require Plaintiff to disclose, as part of the discovery process, the entirety of her sexual history. Only past incestuous conduct would be relevant in providing a truth-based defense to her defamation claim. Thus, the Court agrees with Plaintiff that her disclosure obligations should be limited to "any relative" with whom she had sexual contact before August 16, 2019, not "any individual" as requested by Defendant. {Plaintiff is on notice that, in light of this ruling, she will not be allowed during a future stage of this case to argue that the alleged statement was defamatory for some reason other than its implication of incest.}
But the court ruled for the defendant as to what sorts of sexual conduct he could inquire about:
Given that Plaintiff will only be required to disclose past sexual contact with "any relative," it is within the bounds of permissible discovery to require Plaintiff to disclose each instance in which she and such a relative engaged in any direct or indirect touching, fondling, or manipulating of any part of the genitals, anus, or female breast by any part of the body or by any object or causing a person to engage in such contact.
Plaintiff's competing proposal, that she only be required to disclose instances in which she and a relative engaged in "fornication or any other form of sexual intercourse (oral, anal or vaginal)," is too narrow. That approach would preclude Defendant from learning about any instances in which Plaintiff and a relative engaged in highly sexualized conduct that approached but did not quite meet the definition of intercourse. If any such incidents exist, Defendant is entitled to learn about them because they may provide a truth-based defense to the pending defamation charge or may, at a minimum, help Defendant discover other information that may provide a defense to that charge…. "Relevancy in civil litigation is a relatively low bar." … "For discovery purposes, courts define relevance broadly, stating that information is relevant if it bears on or might reasonably lead to information that bears on any material fact or issue in the action …. [C]ourts are quick to point out that discovery is concerned with relevant information—not relevant evidence—and that as a result the scope of relevance for discovery is necessarily broader than trial relevance."
