The Volokh Conspiracy
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From Boye v. McCarthy, decided yesterday by the Pennsylvania Superior Court, in an opinion by Judge Deborah Kunselman, joined by President Judge Jack Panella and Judge James Gardner Colins:
According to the complaint, Ms. McCarthy sent a false e-mail to an administrator at Mr. Boye's college. She alleged that Mr. Boye raped a third party in his dorm room.
(The trial court concluded that the third party, labeled Ms. Roe, was "Ms. McCarthy's daughter," though the appellate court didn't rely on this, because "[t]he complaint did not state that Ms. Roe and Ms. McCarthy are daughter and mother," and thus "the fact that Ms. Roe is Ms. McCarthy's daughter was outside the trial court's scope of review, and it is outside ours, as well.")
Boye sued for defamation, and the trial court rejected the claim on the grounds that the allegation was subject to a conditional privilege, which covers reports of alleged misconduct such as this. But the appellate court concluded that Boye had adequately alleged that the conditional privilege was defeated by McCarthy's malice or even negligence:
[W]hen the plaintiff alleges an abuse of conditional privilege through malice, "the jury has to find that the defendant made the defamatory communication intentionally, with the knowledge that it was false, recklessly, without regard to whether it was true or false …." Here, Mr. Boye alleged facts that, if true, would establish Ms. McCarthy acted with a reckless disregard for whether her e-mail was true or false. To begin with, Ms. McCarthy was not an eyewitness to any of the events that she reported to the administrator. Her e-mail related no details of Ms. Roe's encounter with Mr. Boye on the date at issue.
Instead, Ms. McCarthy wrote that Ms. "Roe cannot remember anything other than being in [the] hallway of [the] dormitory and believes she was roofied in a dorm room that [Partner #1] was in earlier in the evening." Thus, Ms. McCarthy's secondhand account of Ms. Roe's suspicion that someone "roofied" her in a room with Partner #1 does not relate to Mr. Boye, much less establish that he raped Ms. Roe. Viewing the allegations and drawing all reasonable inferences in Mr. Boye's favor, he had no knowledge that Ms. Roe was under the influence of a date-rape drug. In fact, he claims that she came onto him.
Hence, based on Mr. Boye's complaint, Ms. McCarthy knew nothing of what transpired in his dorm room between Ms. Roe and Mr. Boye. As far as Ms. McCarthy knew, any sexual activity could have been fully consensual, and, at this point of the proceedings, we must presume that it was. As a result, if these facts are proven to the jury's satisfaction, it may well conclude that Ms. McCarthy acted recklessly when accusing Mr. Boye of rape, i.e., that she "made the defamatory communication … recklessly, without regard to whether it was true or false …."
Moreover, Mr. Boye alleges in his complaint Ms. McCarthy sent her email without bothering to ask him what transpired in his room on the day in question. While Ms. McCarthy dismisses this point as an "incongruity of requiring [her] to speak with the victim's allege rapist prior to making a report of the alleged rape," a jury might not see it that way. A jury could reasonably conclude that, before making so weighty an accusation as rape based on nothing more than hearsay evidence, the prudent person would, at a minimum, want to hear the other person's side of the story.
Because Ms. McCarthy had no direct information regarding the events in question, a jury might well find that she "manufactured all the vitriol stated in the September 16, 2020 e-mail and knowingly published it to harm [Mr. Boye]."
That said, as this litigation moves forward—to Ms. McCarthy's answer and new matter and then, likely, into discovery—additional facts may emerge that conclusively disprove Mr. Boye's allegation that Ms. McCarthy published the e-mail with malice. Or the jury may find that Mr. Boye's version of events is incorrect.
Nevertheless, at this early stage of the proceeding, we cannot agree with the trial court that Mr. Boye's "complaint does not aver facts whereby one could find the transmission of the e-mail by [Ms. McCarthy] was actuated by malice or negligence."