#TheyLied Lawsuits Alleging False Title IX Complaints: Defamation and Malicious Prosecution

"Malicious prosecution," which covers the bringing of civil and administrative quasi-judicial complaints and not just criminal complaints, becomes especially relevant given a recent Colorado Supreme Court decision limiting defamation claims.

Say Devon goes to some government body and accuses Pat of committing a crime: maybe rape, or theft, or fraud, or whatever else. Pat wants to sue Devon, claiming these allegations are factually false.

It turns out there are two possible tort theories for Pat to use, each with its own constraints. The most well-known is defamation, the theory being that Devon said something about Pat that was false.

But the other is "malicious prosecution," the theory being that Devon brought about a government action against Pat, based on something false. Confusingly, the term extends both to bringing about criminal proceedings (what we normally view as "prosecution") and bringing about civil proceedings. (Sometimes, the latter is called wrongful use of civil proceedings or some such, but often it's just called malicious prosecution.)

In some ways, malicious prosecution claims are harder to bring. But in another important way, they are available even when defamation claims aren't. That's becoming potentially quite important for lawsuits that stem from Title IX proceedings, as we'll see below.

Defamation: To begin with, defamation generally consists of (to oversimplify)

1. making a false statement of fact,
2. that one knew or should have known was false,
3. that isn't privileged,
4. and that tends to cause reputational harm.

To give a classic example, say Devon publicly accuses Pat of a crime and Pat sues for defamation. If Pat can prove the statement is knowingly or negligently false, then Pat would generally be able to prevail.

But say that Devon brought the accusation not in public, but to the police, to a prosecutor, to a court, or to an administrative agency. That sort of accusation may well be privileged, and thus potentially protected from defamation liability. Such privileges comes in two varieties:

• qualified privilege, which protects Devon from liability from honest mistakes (even unreasonable mistakes) but not deliberate lies, and
• absolute privilege, which protects Devon from all liability, even if Pat can persuade a jury that Devon deliberately lied.

Which sort of privilege depends on the context, and on the jurisdiction. In particular,

• If Devon made the initial allegations as a litigant, in a complaint filed in court or before an administrative agency, those allegations would be absolutely privileged from defamation liability.
• If Devon made the initial allegations by a statement to the police or prosecutors or civil enforcers, most states would view those allegations as covered by qualified privilege but some states would view them as covered by absolute privilege.

Malicious prosecution: Yet even when a defamation claim is unavailable because of absolute privilege, Pat can still sue Devon for "malicious prosecution." To oversimplify somewhat, Pat can prevail in a malicious prosecution claim if Pat can show that

• Devon's allegations brought about a legal action (criminal, civil, or administrative) against Pat,
• that action terminated in Pat's favor (whether through a verdict, a judicial dismissal of the original action, or the prosecutor's or plaintiff's dropping the original action), and
• Devon's allegations lacked probable cause, and were actuated by "malice."

In practice, element 3 is generally satisfied if Devon knew the factual allegations were false; this is the scenario on which we'll focus in this discussion.

Elements 1 and 2 are extra requirements for Pat beyond what's required in a defamation claim. But, unlike with defamation, malicious prosecution may be available even when a defamation claim is blocked by absolute privilege. As you might gather, the law is trying to reconcile two concerns here:

• On one hand, we don't want to unduly deter people in Devon's shoes from making such allegations. Many allegations of crime are, after all, true; we want to encourage people with knowledge of crime—or even suspicions of crime—to bring those allegations forward. And it might not be enough for the law to simply say "you're fine if you make correct allegations, but you're liable if you make incorrect ones": Reasonable people may be deterred even from making correct allegations by the fear that a jury will conclude that the allegations were actually false.
• On the other hand, we want the legal system to give Pat a remedy if the allegations are indeed false. Allegations of crime are especially damaging to reputation. And we want to deter false allegations of crime, like we want to deter other defamation.

Thus, for instance, the California Supreme Court has recognized an absolute privilege in defamation cases involving complaints to police or prosecutors:

We have explained that the absolute privilege established by section 47(b) serves the important public policy of assuring free access to the courts and other official proceedings. It is intended to "'assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.'"

But the court continued to allow a malicious prosecution theory in such cases; to quote an earlier precedent on which it relied,

Malicious prosecution actions are permitted because "[t]he policy of encouraging free access to the courts … is outweighed by the policy of affording redress for individual wrongs when the requirements of favorable termination, lack of probable cause, and malice are satisfied."

Title IX complaints, defamation: Now say that Devon accuses Pat of sexual misconduct, in a Title IX proceeding at a public university. Pat claims this accusation was false, and sues Devon for defamation.

In pretty much all jurisdictions, Devon will be immune from liability for an honest complaint, even if it turns out Devon was wrong (and even if Devon was acting unreasonably). But say that Pat claims that Devon was outright lying. Here too the question would be whether there's only a qualified privilege against defamation liability (i.e., only for honest mistakes) or an absolute privilege (i.e., covering even allegedly knowing falsehoods).

In 2023, the Connecticut Supreme Court held (Khan v. Yale Univ. (2023)) that statements made by accusers in Title IX proceedings are protected only by qualified privilege. Statements made by witnesses in "quasi-judicial" proceedings, the court concluded, would be absolutely privileged, but Title IX proceedings didn't count as quasi-judicial proceedings:

A proceeding is quasi-judicial for the purpose of affording its participants absolute immunity when the proceeding is specifically authorized by law, the entity conducting the proceeding applies law to fact in an adjudicatory manner, the proceeding contains adequate procedural safeguards, and there is a public policy justification for encouraging absolute immunity for proceeding participants…. The disciplinary proceeding at issue was not quasi-judicial for the purpose of affording absolute immunity to D's statements because it lacked sufficient procedural safeguards necessary to ensure the reliability of the information presented: …

D did not testify under oath or certify to the truth of her statements, she could not have been disciplined for failing to testify truthfully because she had graduated from Yale before the hearing, and those shortcomings undermined the reliability of D's statements in view of how fundamental the oath requirement is to the reliability of the information presented.

The committee's procedures, which vested the hearing panel with discretion to ask the questions submitted by the plaintiff, did not afford the plaintiff or his counsel a meaningful opportunity to cross-examine or otherwise to confront D in real time …. Likewise, the committee's procedures did not afford the parties a reasonable opportunity to call witnesses …. Moreover, … [plaintiff's] counsel was effectively rendered irrelevant ….

On the other hand, last month, the Colorado Supreme Court held (in Hushen v. Gonzales) that such a proceeding was indeed "quasi-judicial" and thus subject to absolute privilege in a defamation case brought based on testimony in the proceeding:

Because this proceeding involved consideration of the rights and obligations of a specific individual through the application of preexisting policies to present and past facts, the proceeding was quasi-judicial [even though] {it looked very little like a judicial process held in a court system}. That is the end of our quasi-judicial inquiry. Therefore, any statements made during the District's Title IX proceeding are protected by absolute privilege and cannot be used as the basis for a civil lawsuit against the participant who made those statements….

Title IX complaints, malicious prosecution: Yet as with the question of complaints to police and prosecutors, and of civil court filings, this immunity from defamation liability for statements within the proceeding may be a separate matter from malicious prosecution liability for initiating the proceeding by bringing the Title IX complaint in the first place. Consider, by analogy, Wolf v. Brenneman (Colo. App. 2024):

We hold that all witnesses who testify before a grand jury, including complaining witnesses, enjoy absolute immunity from civil liability based on that testimony. Consequently, the district court properly dismissed Wolf's claims to the extent they are based on testimony Brenneman and Selby gave to the grand jury….

[But it was error for the court to have] also granted absolute immunity to [the same defendants] for statements they made to the DA in reporting Wolf's alleged criminal activity. "Immunity regarding testimony , however, does not 'relate backwards' to events that transpired prior to testifying, even if they are related to subsequent testimony." … If the rule were otherwise, little, if anything, would be left of a tort like malicious prosecution.

Malicious prosecution claims are indeed available not just as to complaints to the police or to courts, but also as to complaints prompting an "administrative proceeding" that is "quasi-judicial in nature" (as the Colorado Supreme Court just held that Title IX proceedings were). And if a court in another state concludes that Title IX proceedings aren't quasi-judicial enough to count for malicious prosecution purposes, then presumably the court will conclude that they aren't quasi-judicial enough to yield an absolute privilege in defamation cases, so a defamation claim would be available even if a malicious prosecution claim isn't.

To be sure, the Colorado Supreme Court's Hushen decision spoke in broad terms about absolute privilege:

Absolute privilege allows individuals to participate in fact-finding processes—like Title IX investigations, attorney regulation proceedings, or employee discipline proceedings—without fear that their participation will serve as the basis for lawsuits against them. See Stepanek, 940 P.2d at 368 ("The purpose behind a grant of absolute immunity is to preserve the independent decision-making and truthfulness of critical judicial participants without subjecting them to the fear and apprehension that may result from a threat of personal liability." (emphases added)). The underlying defamation and intentional infliction of emotional distress claims subject Ashley and Alexandra to the threat of civil tort liability in a way that could discourage victimized students from reporting harassment out of fear that they, too, would be subject to personal tort liability. The possibility that a student who reported harassment or even an assault might then face civil tort litigation—and possibly liability—for statements made during the reporting procedure is very likely to deter use of that reporting system.

This might be read broadly, as precluding even malicious prosecution liability, since the risk of malicious prosecution liability could deter reporting as well as the risk of defamation liability. But Hushen didn't even mention malicious prosecution, presumably because no such claim was brought in that case. And as cases such as Wolf (a Colorado case) and the California case cited above show, absolute immunity in defamation cases generally does not extend to malicious prosecution cases.

In any event, the malicious prosecution theory is likely at least potentially available in these sorts of scenarios, and it will be interesting to see whether such Title IX plaintiffs will indeed start bringing malicious prosecution claims.

Title IX and private institutions: Finally, when the Title IX proceeding is within a private school, there would be no malicious prosecution claim, I think, since malicious prosecutions claims generally require the bringing about of governmental actions (whether criminal, civil, or administrative). But at the same time, I think there would be the possibility of defamation liability, even under Colorado law, because the Hushen absolute privilege for "quasi-judicial proceedings" seemed to extend just to "governmental decision[s]." (A qualified privilege would still be available, under the logic of Khan.)