The Volokh Conspiracy
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From L.S.S. v. S.A.P., decided by the Colorado Court of Appeals yesterday, in an opinion by Judge Christina Gomez, joined by Judges Terry Fox and Rebecca Freyre:
In this case, L.S.S. (father) asserted defamation and related claims against S.A.P. (mother) after she reported that he might be sexually abusing their five-year-old child. Mother appeals the trial court's denial of her special motion to dismiss those claims under the anti-SLAPP statute. Applying the framework we outline for considering such motions, we affirm the order and remand the case to the trial court for further proceedings….
The [Colorado anti-SLAPP] statute allows a person (usually a defendant) to file a special motion to dismiss "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States constitution or the state constitution in connection with a public issue." The trial court then "consider[s] the pleadings and supporting and opposing affidavits" to determine whether "the plaintiff has established that there is a reasonable likelihood that the plaintiff will prevail on the claim." … In making that [second] determination, "[t]he court does not weigh evidence or resolve conflicting factual claims" but simply "accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law." …
[Under Colorado law, i]f a statement concerns a public figure or a matter of public concern [emphasis added -EV], …:
- The plaintiff must prove the statement's falsity by clear and convincing evidence, rather than by a mere preponderance.
- The plaintiff must prove by clear and convincing evidence that the speaker published the statements with actual malice.
- The plaintiff must establish actual damages, even if the statement is defamatory per se. [This provides more protection for libel defendants than the minimum required by First Amendment law. -EV]
The parties agree that this case involves a matter of public concern…. [T]o prevail on his defamation claim father must [thus], among other things, establish actual malice by clear and convincing evidence. Clear and convincing evidence is "evidence that is highly probable and free from serious or substantial doubt." …
But what sort of showing is required in the context of a special motion to dismiss under the anti-SLAPP statute? We conclude that in order to withstand a special motion to dismiss where a showing of actual malice will be required at trial, a plaintiff must establish a probability that they will be able to produce clear and convincing evidence of actual malice at trial….
The General Assembly, in enacting the anti-SLAPP statute, expressed a purpose of safeguarding the rights "to petition, speak freely, associate freely, and otherwise participate in government" from the chilling effect of "abuse of the judicial process." Yet at the same time, it also expressed a concern for "protect[ing] the rights of persons to file meritorious lawsuits for demonstrable injury." The statute accordingly "seeks to balance both parties' constitutionally protected interest in petitioning the government, be it by participating in the legislative process, invoking the government's administrative or executive authority (such as by reporting suspected unlawful activity), or instigating litigation to protect or vindicate one's interests." …
[T]he [trial] court correctly recognized that, while father's evidence wasn't "terribly persuasive," it wasn't the court's role to weigh that evidence or evaluate the witnesses' credibility. Instead, the court drew all inferences from the evidence in father's favor and determined that he had provided sufficient evidence of actual malice to withstand the special motion to dismiss. We agree. [Factual details moved to the end of this post. -EV] …
We also recognize mother's and the amici's concerns that allowing this case to move forward could embolden abusers to further victimize others through misuse of the judicial process and could discourage victims and their families from seeking help. But, at the same time, we must acknowledge the potential for false accusations and the right that someone who is falsely accused has to recover for the harm thereby caused.
As another division of this court recently explained, "[a] mere allegation of sexual misconduct can be devastating to the accused," and "[a] determination that a person engaged in non-consensual sexual contact can potentially destroy the accused's educational, employment, and other future prospects." Doe v. Univ. of Denver (Colo. Ct. App. 2022). Those risks are even greater with allegations of sexual assault on a child. Indeed, investigations like the ones undertaken in this case could lead to the termination of parental rights and an indeterminate sentence of several years to life in prison.
Such concerns explain why the privilege for a person reporting or participating in the investigation of possible child abuse is a qualified one, which disappears if the person's actions are found to be willful, wanton, and malicious. As a division of this court explained in addressing a similar qualified privilege for statements to law enforcement officers, "a qualified privilege 'is sufficiently protective of [those] wishing to report events concerning crime and balances society's interest in detecting and prosecuting crime with a defendant's interest not to be falsely accused.'"
And when faced with similar competing narratives, courts in Colorado and elsewhere have routinely held that a plaintiff's allegations that the defendant made false accusations are sufficient to create a factual issue as to actual malice. See, e.g., Thompson v. Pub. Serv. Co. of Colo. (Colo. 1990) (the plaintiff created a triable issue on actual malice supporting his defamation claim by denying the defendant's accusations of sexual harassment and presenting contrary evidence); Stevens v. Mulay (D. Colo. 2021) (the plaintiff presented sufficient evidence to survive a special motion to dismiss his malicious prosecution claim under Colorado's anti-SLAPP statute where he offered evidence casting doubt on the defendant's accusation that he assaulted her); McDonald v. Wise (10th Cir. 2014) (the plaintiff sufficiently pleaded actual malice to support his defamation claim by alleging facts that "raise the reasonable inference that [defendant] did not believe he had sexually harassed her and therefore that she knew she was making a false statement, or at a minimum had reckless disregard for the truth"); Chastain v. Hodgdon (D. Kan. 2016) (the plaintiff sufficiently pleaded actual malice to support his defamation claim by alleging facts suggesting that the defendant falsely accused him of sexual assault and had a motive to harm his reputation; "[i]f defendant knew that the events were false, and nonetheless wrote the detailed narrative describing exactly how plaintiff sexually assaulted or attempted to rape her when it actually never occurred, it is axiomatic that she wrote the narrative with actual malice, or actual knowledge that it was false"); Linetsky v. City of Solon (N.D. Ohio) (the plaintiff created a triable issue on malice to support his malicious prosecution claim by presenting evidence that his ex-wife encouraged their child to lodge false accusations of sexual assault against him; "[f]alse sexual assault accusations suggest malice"); Siam v. Kizilbash (Cal. Ct. App. 2005) (in response to an anti-SLAPP motion on defamation and related claims, the plaintiff presented "evidence … sufficient to permit a jury to find that [the] defendant … made knowingly false reports of child abuse" where he offered evidence disputing the accusations and showing the defendant's antagonistic behavior toward him).
Here's the evidence that the court found sufficient for the case to proceed:
In affidavits submitted to the trial court, father alleged that he never abused the child and that mother fabricated the allegations and coached the child to say false things. He also presented the following evidence to show actual malice:
- Mother's intent to move to Australia: Father alleged that mother had repeatedly expressed a desire to move to Australia with the child, both in the earlier domestic case and after the parties had settled that case.
- Father's payments to mother: Mother made her reports soon after father made his first installment on the $700,000. He alleged that mother was upset by his earlier default on the lump sum payment, that she made her reports only after he started making payments under their new agreement, and that the funds were supposed to go toward mother's purchase of a home in Aspen but she'd resisted making such a purchase.
- Mother's alienation of the child from father: Father alleged that when he resumed visits after his illness, mother started alienating the child from him, discouraging the child from staying overnight with him, and offering to pick up the child early.
- Mother's journal: A few months earlier, mother, at the advice of her attorney, had started a journal recording her concerns with father's care of the child. She shared details from that journal during the investigation. Father argued that mother was creating evidence against him and selectively sharing it with authorities.
- "Under the bed" video: Father argued that mother didn't help get the child out from under the bed but stood back and recorded the video in an effort to create evidence to support her cause.
- "Ticklish video": Father argued that mother didn't capture the entire conversation with the child on the video, that she asked the child leading questions, and that she may have coached the child to make the statements.
- Mother talking with the child about touching: Mother indicated during the investigations that she was having the child draw body parts and label them to discuss "good" and "bad" touching. Father argued that the timing of those discussions, "in and around the time of the allegations," was "highly suspect."
- The parents' conversation: In a follow-up conversation between mother and father, which mother recorded, she admitted that she'd never seen him acting like a "sexual deviant" and that she "d[id]n't know" but "wouldn't think" that he was "capable of something" like the allegations lodged against him.
- Mother's continued complaints: Father alleges that as the investigations failed to turn up any evidence of abuse, mother provided even more false evidence to try to turn things around, like reporting that the child said he blew "raspberries" on her vagina and massaged her bottom, that he told the child secrets and "predators use secrets to manipulate kids," and that he left the child naked and unsupervised in his home.
- The findings from the investigations: APD and DHS both closed their investigations after finding nothing to substantiate the allegations of abuse.
Although we agree with the trial court that father's showing isn't particularly compelling, we, too, cannot weigh the evidence or make credibility determinations. Nor can we conclude, as a matter of law, that a reasonable juror presented with such evidence would not be able to find by clear and convincing evidence that mother knew at least one of her statements was false.
Congratulations to Richard B. Podoll and Jacqueline E. Hill (Podoll & Podoll, P.C.), who represented the father.