#ReadWomenWithCaution (at Least as to Rape Allegations in Medium Posts)

The Washington Court of Appeals concluded last week in Carter v. Jones (written by Judge George Fearing, joined by Judges John Cooney and Megan Murphy) that, among other things, a Medium post by Mary Jones accusing Micahn Carter of rape—see pp. 24-29 of the opinion for the full text of the post—was nonactionable opinion. A short excerpt from the long decision:

Micahn Carter complains about a July 21, 2021, blog posted by Mary Jones. In the post, Jones did not speak with caution or qualify her accusation of rape with any statement implying apparency or equivocality. She did not detail the penetration that occurred. This factor weighs against her communication as an opinion.

Nevertheless, … [t]he law [also] directs us to consider the medium employed and the intended audience. Mary Jones posted her blog on the platform Medium that allows writers and bloggers to share their ideas and stories with a wide audience…. The average reader understands communications on platforms such as Medium to contain subjective views of the writer and the writing is often subject to exaggerations.

In her July 21, 2021, blog post, Mary Jones did more than accuse Micahn Carter of raping her. She provided detailed facts of Carter's grooming her in the preceding months. She narrated that Carter talked about her exuding sexuality and his dreaming of her. She wrote that Carter, on another day, grabbed her bottom, after which he sobbed in sorrow. Between the two TLC meetings, he aggressively embraced her. He then apologized and asked Jones if she would act weird. Jones described her thinking, during this time, of being uncomfortable from the advances of Carter.

Mary Jones wrote further in her blog post that, after she returned from the second TLC meeting, she entered her office. Carter aggressively and unstably grabbed her. Jones first froze. Then she waved her hands and pivoted around. She told Carter: "'Please don't do this, you'll regret this.'" Carter turned Jones back around, while Jones placed the bottom of a foot against the door. Jones glanced at her shoes and noticed a stain on the shoe's suede. She heard the sound of Carter's belt buckle and thought "it was over." The detail depicted assisted the reader to judge whether rape occurred.

Mary Jones wrote in the first person as the victim of the rape. The blog post is not the statement of a third party dispassionately relating facts. A reader can then choose to read with caution….

Mary Jones wrote her July 21, 2021, blog post not simply to relate a rape against her. The post described her Christian experience, longing for belonging, need for assistance, need for a church, trust in a pastor, being a single mom, the shame of sin, a struggle with sexuality, grooming by a pastor, false penitence by someone wronging her, assuming responsibility for her actions, rehabilitation, healing, and constant clutching of Jesus and Christ's church. She only described the rape in this context. The reader readily recognized she suffered hurt, betrayal, and shame regardless of whether the encounter was consensual. The reader could draw conclusions as to the accuracy of portions of her story. Micahn Carter does not dispute any of the underlying facts Jones placed in the blog.

In her blog post, Mary Jones did not claim that the State prosecuted or convicted Michan Carter for rape. She did not reference any definition of rape or any statute creating rape as a criminal offense.

In addition to avoiding the entirety of the blog post written by Mary Jones, Micahn Carter circumvented in his declaration the circumstances in the months preceding the sexual encounter. Carter told Jones in advance that she exuded sexuality and about his dreams of her. He cleverly scolded Jones for not being able to resist a then hypothetical sexual advance from him because of his magnetism.

Mary Jones' blog post informed the reader that Micahn Carter employed Jones as his assistant and functioned as her pastor. The reader knew that Carter held the power to fire Jones from a job she had enjoyed. Also, Carter was Jones' pastor and trusted father figure. This background contributed to the statement of rape being one of opinion….

I'm pretty skeptical about this analysis; it seems to me that, in context, Jones was asserting that she had indeed been raped as a matter of fact, rather than just laying out the undisputed facts and expressing the opinion that they constituted rape. I agree that people can (and should) "choose to read with caution" all allegations, from men or women, about sexual assault or other things, whether or not they are expressed "dispassionately." (Caution is a wise approach.) But this doesn't keep such assertions from being read as factual claims and thus being potentially defamatory.

The passage also included this item:

Micahn Carter's versions of the facts confuse us. Within weeks of the sexual encounter, Micahn and April Carter told Pastor Kevin Gerard that Micahn could not remember the sexual encounter. If he cannot remember the event, we do not know how he can deny that he raped Mary Jones, let alone testify that Jones consented to the sexual encounter. Within two months of the encounter, Carter told his congregation that his physician diagnosed him with a mental condition that caused him to say and do things inconsistent with his character. Presumably acts inconsistent with his character would embrace sexual intercourse with a woman without gaining her consent.

Micahn Carter, contrary to his earlier denial of not remembering the encounter, testified in a declaration for this suit that Mary Jones hugged Carter. The hug lingered, and Jones pressed her body against Carter's body. Jones positioned herself in front of and blocked a door. The bodily contact escalated and led to sexual intercourse. He did not testify that Jones initiated intercourse. His declaration did not state that Jones expressed consent. He did not deny that Jones stated: "'Please don't do this.'"

But that seems to bear on whether there was enough evidence of falsity rather than on whether Jones' allegations were facts or opinions. See these articles that touch on the allegations that led to the case; Carter appears to have been (and perhaps still be) a fairly prominent minister.

Comments

[ReaderY]

I find this analysis completely off its rocker. The defendent’s post alleged very specific wrongful conduct, and it named names. Whether or not what he allegedly did met the technical definition of criminal rape, she clearly alleged a series of unwanted sexual attentions and touching leading to a sexual assualtnof some kind

I think there has been a tendency to rule that if there is any possibility something might be opinion, then it is opinion. I think this case ahows how wrong this tendency is. While there may be some possibility “rape” in its technical criminal-law meaning somewhat exaggerates what happened, she alleged enough provable facts to damage his reputation, and if those alleged facts were false, she defamed him.

This opinion provides a guidebook to defamers on how to get away with it. Just sprinkle a little hyperbole and ambiguity in your otherwise factual allegations, and you’re completely insulated from the law. The odd thing is, ordinary people who are angry or emotionally excited tend to do wxactly that, sprinkle their statements with hyperbole and say things that aren’t completely clear, in the ordinary course of their utterances. Under this legal standard, fact status is so hard to show you’d practically have to consult a lawyer on how to do it if you WANT to defame someone, and be careful to do it in cold blood, with no emotion. The kinds of things most people ordinarily say when they’re angry at someone would all come out as opinion.

[KenveeB]

That's a completely ridiculous analysis. If anything, it was MORE an allegation of fact this way than if it had been a third-party account, because she's saying unequivocally "This happened to me." Not maybe something happened, not something was reported to have happened, but it happened. That's not an opinion. That's an assertion of fact. Whether he should've lost on other grounds is irrelevant; the stated ground is a complete absurdity.

[David Nieporent]

I agree with the two commenters above. This is a nutty decision. Claiming that a first person accusation with specific facts is an "opinion" strains the English language beyond all recognition.

[Stupid Government Tricks]

I agree with all three above commenters that the court is a ass and making excuses. But playing devil's advocate, why didn't she tell the police? Why did she remain at the job? These disputes always come across to me as wanting to tar with the rape brush without having to deal with police or courts. They turn real rape cases into she said/he said disputes which leave the truth as the real victim. The ultimate victim is other rape victims who the public doubts because of the general taint of so many unprosecuted claims.

[MonitorsMost]

She was fired by the wife of the pastor two days after the incident and the pastor was removed from his duties less than a week later after congregants met with Jones. She didn’t appear to have gone to the police, but she did inform people in the church pretty contemporaneously. This is not a situation where she made the first claims years after the fact.

[Drewski]

I went so far as to read the full opinion and nothing seems less bonkers for all the additional context.

[JonFrum]

Take home lesson: Never, ever believe a woman when she says she's been raped. Including if you're a juror in a rape trial.

[ReaderY]

That’s a good point. If a woman testifies to statements similar to those made here, could a defense lawyer argue that in light of this case, the jury must regard the testimony as statements of opinion, not fact, and hence without evidentiary weight?

The opinion as a whole does tend to suggest that in general, women who make rape accusations are prone to exaggeration and shouldn’t be believed.

[JimM47]

I don't think that's a particularly acute danger.

A lay witness is permitted to provide testimony about her own perceptions and observations of events, and that testimony can legitimately be expressed in the form of a lay opinion, so long as (1) the opinion is a helpful way of expressing the underlying observations and (2) the opinion is a conclusion based on matters within common knowledge. Cf. Fed. R. Evid. 701. This is sometimes called "inference testimony."

The classic example of permissible lay inference testimony is that a lay witness can say "he was drunk." Technically, the witness is expressing an opinion. But, really, this is just the ordinary shorthand way that people say that they observed common indicia of drunkenness. We let opposing counsel cross-examine to draw out details. But we don't say that the opinion is without evidentiary weight.

That said, Professor Volokh's assessment seems correct.

[fatnastyretiredguy]

I also thought this was a bit of a nutty decision when I first read Prof. Volokh’s shortened recitation of it. Then I saw who wrote the opinion. Just the name of the author was enough to give me pause. I know Fearing. Have known of him for many years. There are damn few lawyers in the profession who are as bright or as thoughful as J. Fearing. This is all too typical a case. Sex occurred. Both parties. agree to that. He says consensual. She says she was groomed. Washington state 3rd degree rape statute does not require the use of force. It requires that the sexual act be nonconsensual. Therein lies the difference of opinion. On this case, it is my opinion Prof. Volokh’s comments about this decision is incorrect. Anyone who wants to know how these cases go, get down in the trenches and try just a few. Doesn’t matter whether you are prosecuting or defending. The experience will not only make you smarter, it will qualify to even comment.