#TheyLied Case Filed by Elected Official Over Allegations of Sexual Assault Can Go Forward

From Anderson v. Senthilnathan (Colo. Ct. App.), decided Sept. 28, in an opinion by Judge Katharine Lum, joined by Judges Jerry Jones and Steve Bernard:

At various times in 2021, while Anderson served as an elected Director on the Board of Education for Denver Public Schools (DPS), [Defendants] BLM [Black Lives Matter 5280, a chapter of the national Black Lives Matter] and [BLM co-founder] Brown, Brooks-Fleming, and Senthilnathan published separate statements alleging that Anderson had sexually assaulted one or more people. Each of the defendants was familiar with Anderson through participation in community politics.

An investigation [by ILG Legal Services] commissioned by DPS was unable to substantiate the allegations of sexual assault raised by Brooks-Fleming and by a third party who had allegedly reported her assault to BLM. The results of the investigation were released before Senthilnathan made her statements.

Anderson sued for defamation and related claims, and the court held that Anderson had sufficiently alleged falsehood and actual malice as to defendants Brooks-Fleming and Senthilnathan that the case could go forward:

[The ILG] report revealed inconsistencies in Brooks-Fleming's own account of the events underlying her allegations that Anderson committed sexual assault or other sexual misconduct against sixty-two DPS students.

ILG interviewed Brooks-Fleming one day after she gave her testimony and follow-up statement. According to the ILG report, Brooks-Fleming claimed that the first two sexual assault victims, both of whom had injuries, came to her in August and September of 2020. Yet, in October 2020, Brooks-Fleming praised Anderson on social media as a "brave and worthy role model." And while Brooks-Fleming claimed that by the end of October 2020, she received sixty-two reports of sexual assault and sexual misconduct by Anderson, she invited Anderson to speak at a political event for DPS in November 2020. Then, five days after Brooks-Fleming's testimony and follow-up statement, she posted the following to social media: "I NEVER SAID HUS [sic] NAME I NEVER SAID HIS NAME I NEVER SAID HIS NAME — TOLD YALL I WAS ON HIS SIDE [three skull emojis]."

The report also detailed how Brooks-Fleming then changed "a number of details" in her chronology in a written statement provided after her initial interview. According to the revised chronology, Brooks-Fleming "received most of the allegations after she publicly praised [Anderson] and asked him to speak at an event to benefit homeless youth." The ILG report noted that the discrepancies in the timeline were not minor and indicated a "serious disassociation between [Brooks-Fleming's] actions and her allegations."

In addition to the ILG report, Anderson submitted an affidavit attesting (1) "at no point in my entire life have I ever sexually assaulted anyone or engaged in conduct that could reasonably be interpreted as sexual assault"; (2) "there is no truth whatsoever to [Brooks-Fleming's] claims regarding me sexually assaulting or sexually abusing students"; and (3) "I received messages, speaking requests and touching tributes from [Brooks-Fleming] during the time that she alleges she was receiving complaints of sexual abuse against me."

Brooks-Fleming submitted no affidavits or other evidence supporting her position. She directs us to a social media post in the record that might tend to corroborate that one victim reached out to her for assistance. She also argues that she did not allege that Anderson sexually assaulted all sixty-two victims but that some of the victims were subjected only to unwanted touching. She implies that the ILG report corroborates her allegations because it found that Anderson "made unwelcome sexual comments and advances, and/or engaged in unwelcome sexual contact." But this finding was in reference to Anderson's behavior toward members of the Never-Again Colorado Board of Directors, not toward DPS students.

In any event, we cannot weigh the evidence or determine credibility at this stage. And on review of the parties' submissions, we cannot 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 (1) Brooks-Fleming's statement was false and (2) she knew the statement was false or in fact entertained serious doubts as to its truth when she made it. We therefore conclude that Anderson proffered sufficient evidence of falsity and actual malice to survive Brooks-Fleming's anti-SLAPP motion as to her follow-up statement….

As to Senthilnathan,

Anderson alleged that (1) he never committed sexual assault; and (2) he, through counsel, requested that Senthilnathan remove the defamatory posts, but she declined to do so. See Golden Bear Distrib. Sys. of Tex., Inc. v. Chase Revel, Inc. (5th Cir. 1983) (evidence of refusal by publisher to retract a statement after it has been shown to be both false and defamatory may be relevant to the issue of actual malice in certain circumstances), abrogation on other grounds recognized in Hiller v. Mfrs. Prod. Rsch. Grp. of N. Am., Inc. (5th Cir. 1995); Abdelsayed v. Narumanchi (Conn. App. 1995) (a refusal to retract an accusation of plagiarism after an investigation concluded plagiarism was not committed might be relevant to showing recklessness at the time of publication).

We also note that Senthilnathan's statement reflects hostility toward Anderson for reasons seemingly unrelated to the assault allegations. She describes him as toxic, egoistic, arrogant, manipulative, obsessive, and narcissistic. Her statement expresses anger or frustration that, in her view, Anderson "put down many young people for his rise" and "chose to endorse a white man over DPS candidate Jorge Hernandez Arjona because he didn't want his 'Youngest Black Elected Official' position being taken away from him." See L.S.S. v. S.A.P. (Colo. App. 2022) ("[E]vidence of the defendant's 'anger and hostility toward the plaintiff' may serve as circumstantial evidence of actual malice 'to the extent that it reflects on the subjective attitude of the publisher.'").

While Senthilnathan's video statement vaguely references victims that "reached out to her," she provided no affidavits, even from herself, or any other evidence supporting her position. Thus, unlike BLM and Brown, there isn't any evidence in the record suggesting that she actually received reports of sexual assault or that the assaults in fact took place. Although the burden rests with Anderson to show a reasonable likelihood of success, we still must assess "whether the allegations and defenses are such that it is reasonably likely that a jury would find for the plaintiff." And we evaluate the evidence put forward by a defendant to determine if it defeats the plaintiff's claim as a matter of law….

The court concluded, though, that BLM and Brown's statements weren't defamatory, because they accurately stated only that allegations were made about Anderson, not that BLM and Brown were endorsing those allegations. And the court also concluded that Brooks-Fleming's statement made to the legislature was absolutely immune from liability, and focused only on Brooks-Fleming's follow-up statements made outside her testimony.

There's a lot more in the opinion (which is quite long, and which I only briefly excerpt here). Issa Israel represents Anderson.