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Should NH prohibit defamation lawsuits against those who report sexual misconduct?

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There are many reasons a victim of a crime like sexual assault or domestic abuse might be afraid to come forward. Among them is the fear that, if they do not have strong enough evidence to back up their story, their assailant might sue them for defamation. A bill before the New Hampshire Legislature this year seeks to address this by prohibiting such defamation lawsuits against accusers. The bill coincides with a national effort to get similar legislation passed in other states, but some worry the proposed law goes too far.

Proposal to protect victims from lawsuits

HB 580, sponsored by a mix of Democrat and Republican representatives and senators, prohibits a defamation lawsuit against a victim reporting sexual misconduct, sexual abuse, sexual assault, sexual harassment, or domestic abuse. There is an exception if "the claimed act in the reported accusation was a factual impossibility" or if the victim has publicly stated the reported incident did not occur. A victim who gets illegally sued for defamation under this new law could seek damages from the perpetrator.

A national effort

Victoria Burke, an attorney and professor at Southwestern Law School in Los Angeles, has been leading the charge to make these kinds of changes to state-level laws around the country. Other states including New Jersey, Delaware, and Oregon have also considered similar legislation, and California passed an amended version of Burke’s proposal that raises the bar for proving defamation when it pertains to sexual assault or harassment. Burke’s dedication to this issue is personal, as she herself was a victim of a sexual assault and felt pressured not to report the crime for fear of being sued for defamation.

This is a related but separate effort from “Anti-SLAPP laws,” which aim to protect people from lawsuits that are intended to silence their speech or intimidate them for exercising their First Amendment rights. SLAPP stands for “strategic lawsuits against public participation.” Often times, journalists will rely on laws like these to protect them from being sued, but these laws can be expanded to protect victims of sexual crimes.

There is a separate bill in New Hampshire, HB 391, to pass an Anti-SLAPP law in New Hampshire. Generally speaking, that bill would establish new procedural rules for courts to quickly evaluate and dismiss SLAPP cases.

The House killed a similar bill from last year, however, HB 1475. At the time Rep. Bob Lynn (R-Windham) wrote, “The [judiciary] committee was unpersuaded that SLAPP suits were a significant problem in New Hampshire or that current procedures are ineffective in addressing abusive litigation.”

New Hampshire does have laws against frivolous lawsuits that allow court costs and punitive damages to be awarded to victims.

Proponents and critics of HB 580

Proponents of HB 580 say it promises to protect sexual assault victims who might otherwise be afraid to speak out against their accusers. This is particularly true in situations where the abuser holds a position of power over the victim and the justice system is used as a means of intimidation.

Scott Berkowitz, President of RAINN (Rape, Abuse & Incest National Network), submitted testimony in favor of HB 580. He wrote, “The chilling effect of potential legal retaliation fosters an environment where abusers feel emboldened, and survivors feel coerced into silence.”

However, others worry that the bill, as written, gives those accused without evidence little recourse to protect themselves. False accusations can ruin lives and careers, yet this bill would only allow defamation lawsuits in the tiny minority of sexual violence and domestic assault cases when the reported incident was factually impossible or the alleged victim recants his or her story.

What do you think?

There will be a public hearing about this bill held on March 12, 2025 at 11:00 am in Legislative Office Building room 206-208. You can prepare to testify at a public hearing by reading our how-to guide here.

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