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The Connecticut Supreme Court this week released a decision addressing a question that remains unanswered in most states, including in Massachusetts: whether participants in Title IX cases have absolute immunity in defamation law for statements that they make during campus disciplinary proceedings. Absolute immunity, which applies to all statements that parties or their lawyers make in civil or criminal legal cases, protects speakers from defamation suits based on those statements—even if the statements are false, even if the speakers know that they are false when made. By contrast, some other statements that the law considers important to protect have “qualified immunity,” meaning that they can be the basis for a defamation suit, but only if they were made with “actual malice" (usually meaning that the speaker knew or should have know that they were not true). This week, the Connecticut court concluded that statements made in Title IX cases have qualified, but not absolute, immunity.
At the outset of the decision, the court discussed the importance of the concerns on both sides. The court noted that redress of sexual harassment or assault on campus is an important societal value, adding,“the remedial powers of our judicial system must not be used as a means of intimidation to enable the perpetrators of sexual assault to silence their accusers by using the threat of civil litigation and liability for damages.” Against those interests the court set the “accused’s right to fundamental fairness” in the proceeding in which the allegedly defamatory statements are made. Ultimately, the court concluded that the Title IX proceeding at issue was not a “quasi-judicial”proceeding and therefore statements made during it were not entitled to the absolute immunity afforded to statements made in judicial proceedings. This conclusion was based on the specific characteristics of the Title IX proceeding, which did not require complainants to testify under oath; did not include an opportunity for cross-examination; did not give the parties a reasonable opportunity to call witnesses to testify; did not permit active assistance of counsel; and did not give the respondent any record or transcript of the hearing that would permit adequate review of the decision. It therefore lacked “adequate procedural safeguards to ensure the reliability of the statements made in the proceeding and, therefore, did not qualify as quasi-judicial for purposes of absolute immunity.”
While declining to give the statements absolute immunity, the court did find that “public policy supports a qualified privilege for participants in certain sexual misconduct proceedings." Because the plaintiff asserted that the defendant (the complainant in the underlying Title IX matter) had knowingly fabricated claims of sexual assault, the court held that the plaintiff had asserted sufficient facts in his complaint to show actual malice and permit his claims to move forward—though it cautioned that this decision could be revisited when the factual record was more developed at a later stage in the case.
The decision of the Connecticut court will directly affect only cases applying Connecticut law. But as the courts of other states begin to grapple with the question of immunity for statements made during Title IX proceedings, they are likely to look to this decision as one thoughtful attempt to balance the competing interests at stake in these cases. The decision’s reasoning may be influential in a broad range of court proceedings in which it is not directly controlling.
Questions about whether complainants have any liability for false statements arise frequently in campus disciplinary cases, particularly in the rare cases where claims are made that can be objectively shown to be false and not simply a matter of differing perceptions. It’s easy to make the case that respondents should have some recourse in such cases. On the other side of the coin are concerns that the risk of litigation could chill complainants from reporting sexual assault or participating in investigations or hearings. In my own practice, I represent respondents more often than complainants in Title IX cases. Representing respondents, my primary concern is always getting my clients a fair hearing where they are able to fully make their case—and then with helping them to make the strongest case possible—and I think of possible claims against their accusers as a distant secondary concern. I usually encourage clients and their families to focus on their own futures and well-being, not on their accusers.
It’s worth noting that the holding that speakers in a Title IX proceeding do not have absolute immunity for their statements applies to all speakers—complainants, respondents, and witnesses alike. In numerous high-profile cases, including most recently E. Jean Carroll’s lawsuit against Donald Trump, women have sued their accused harassers or assaulters for statements that they made in the context of denying the assaults. Both respondents and complainants should be aware that defamation law can be a double-edged sword and may be used to chill respondents from making counter-claims or disclosing inflammatory facts about their interactions with complainants.
