Lake, Jessica --- "Sexual Slander and Special Damage: The Gendered History of Defamation Law" [2023] PrecedentAULA 40; (2023) 177 Precedent 10

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Sexual slander and special damage:

The gendered history of defamation law

By Dr Jessica Lake

Following the global #MeToo Movement, several high-profile cases in Australia focused attention on the gendered dynamics at play within defamation law. In 2006, the slogan ‘Me Too’ was coined by African American activist Tarana Burke to build community and raise awareness about the sexual assault and harassment of women and girls, particularly women and girls of colour. The slogan rose to viral prominence in late 2017, after actress Alyssa Milano responded to the explosive stories about Harvey Weinstein by asking followers to tweet #MeToo’ if they had experienced sexual assault or harassment. Within 24 hours, Facebook – alone – had recorded use of the hashtag in over 12 million posts and replies.^[1] The #MeToo movement turned sexual misconduct – particularly by high-profile men – into a news topic and offered survivors recognition, an amplified voice and a form of solidarity.

However, the #MeToo Movement also precipitated a spate of defamation claims. The form they took aligned with the defamation rules of each jurisdiction. In the United States (US), women brought defamation cases after publicly being called liars by their alleged perpetrators.^[2] In Sweden, over 11 women claiming to be survivors faced criminal charges for defamation.^[3] In Australia, these defamation claims have most commonly involved high-profile men suing their alleged victims, as well as media publishers, over imputations of assault, harassment or rape. Examples include proceedings brought by Geoffrey Rush, Craig McLachlan, Christian Porter, Andrew Laming and Bruce Lehrmann.^[4] A UN Report in July 2021 by the Special Rapporteur, Irene Khan, stated:

‘In a perverse twist in the #MeToo age, women who publicly denounce alleged perpetrators of sexual violence online are increasingly subject to defamation suits or charged with criminal libel or the false reporting of crimes ... Weaponizing the justice system to silence women feeds impunity while also undermining free speech.’^[5]

ENGLISH COMMON LAW OF SLANDER (FOR MEN)

The common law of defamation developed in England to protect men’s reputations. In the 18th century, a distinction emerged between spoken defamation (slander) and printed defamation (libel). This distinction was confirmed in the 1812 decision of Thorley v Lord Kerry, when Lord Mansfield CJ stated:

‘[T]he law gives a very ample field for retribution by action for words spoken in the cases of special damage, of words spoken of a man in his trade or profession, of a man in office, of a magistrate or officer; for all these an action lies.’^[6]

What this quote also points to is the difference between ‘spiritual’ slander – including sexual misconduct imputations – and words presumed to cause harm. The latter included those ‘likely to affect the complainant in his liberty, office or means of livelihood’ such as imputations of criminality, carrying a loathsome infectious disease, corruption or incompetence.^[7] Sexual slander was deemed materially inconsequential and relegated to the English ecclesiastical courts.

But for women, of course, sexual slander was serious. It had the ability to ruin their social and economic prospects. As numerous legal historians have shown, women’s claims for sexual slander dominated the church courts between the 16th and 19th centuries.^[8] So much so that the ecclesiastical jurisdiction was labelled ‘the women’s court’.^[9] The most complained about imputation was ‘whore’. However, to bring a sexual slander case in the common law courts, an individual had to prove ‘special damage’ – that is specific financial loss. This is because it was assumed such allegations were trivial (for men, that is, and wouldn’t therefore hurt their hip pockets).

For women, special damage was narrow and proving it was difficult. It meant showing that the slanderous words had directly caused the cancellation of upcoming nuptials. In the early 19th century, English jurist Thomas Starkie observed that the ‘necessity of proving a specific loss, falls with particular hardship upon unmarried females, who are thereby frequently debarred from maintaining actions for imputations most unfounded and injurious.’^[10]

The situation, whereby women were effectively barred from bringing defamation actions in the common law courts, posed a particular problem in the New World (US and Australia).

A NEW APPROACH IN THE NEW WORLD

The US colonies took varying approaches to English defamation law, some enforcing every technicality, others dispensing with strict application in favour of local custom and context.^[11] The adherence of each colony to the rules determined the availability of the action for (white) women, who usually tried to bring claims concerning accusations of ‘unchastity’, ‘fornication’ or being a ‘whore’. But in 1790, the New Jersey Supreme Court of Judicature was the first appellate court in the newly minted republic to confront the inadequacy of slander law for women. Unmarried 21-year-old Mary Smith brought a claim against 20-year-old Isaac Minor after he ruinously and publicly declared she was ‘with child’ and ‘like to have a little one’.^[12] But Minor’s lawyers argued that as his words alleged a ‘spiritual’ offence only – fornication and being pregnant with a bastard – Smith would need to show ‘special damage’ (which she could not do) or her claim would be dismissed.

Chief Justice Kinsey, a Quaker with first-hand experience of family disgrace, agreed with Minor but chose to tread a revolutionary judicial path. ‘Calumny’ he declared, was ‘so odious and detestable’, so likely to injure not only the plaintiff but to strike at ‘the very peace of society’ that such a claim was now ‘maintainable’ in New Jersey despite the backward ‘laws of England’. Smith’s reputation was restored. And her case set off a remarkable gendered reform movement.

In 1808, North Carolina became the first state to enact legislation – the Slander of Women Act – making imputations of ‘incontinency’ (that is unchastity or fornication) actionable per se for women.^[13] In other words, women no longer faced the barrier of proving ‘special damage’ when bringing defamation claims for sexual slander. Other US states soon followed, such as Kentucky in 1811, Indiana in 1823, South Carolina in 1824, Maryland in 1838, Missouri in 1845, and New York in 1871.^[14] As legal historians have noted, these reforms – while expanding access to defamation law for women – were often motivated by paternalist protection for the virtue and purity of (white) republican wives and daughters.^[15]

AUSTRALIAN DEVELOPMENTS

In the Australian colonies, the inadequacy of defamation law for women was first raised in the 1826 case of Spencer v Jeffrey.^[16] Harriett Spencer, a young unmarried English woman and governess, sued Captain Robert Jeffrey for slanderous allegations that she was guilty of sexual impropriety on board the merchant ship Toward Castle while voyaging to NSW. Many witnesses were called, and the matter was reported upon extensively by the Sydney Gazette. During the trial, counsel for the defendant and the first free solicitor in the colony, William Moore, raised the argument that ‘the plaintiff should be non-suited’ as the words alleged a merely ‘spiritual’ offence and Spencer had not proved ‘special damage’. However, the plaintiff’s lawyers argued in reply that even though the words were not actionable per se, ‘they became so when spoken of a person in the occupation of an office of profit’. This argument relied on the idea that the English common law of defamation protected men’s hip pockets – compensating for injuries to their standing as traders and professionals. Therefore, if a woman was engaged in paid work, why shouldn’t she be entitled to redress when an allegation of sexual immorality threatened her job? Chief Justice Stephen agreed, declaring that ‘the words, as applied to the plaintiff, if true, would disqualify her from holding her situation’ and therefore were actionable. But the defendant appealed on this point and won. In 1847, the issue of women’s ability to sue for sexual slander contributed to the passing of defamation reforms in NSW that removed the necessity of proving special damage for slander and brought slander in line with libel law.

The damage done by sexual slander to women’s prospects for paid work was the major discussion point in cases and reform proposals within the Australian colonies during the 19th century.^[17] This contrasts with the US and UK, where harm to women’s social and domestic relations were more central. After a high-profile case involving sexual slurs against a ‘lauded public vocalist’, South Australia passed Slander of Women legislation in 1865.^[18] In Victoria, following an action for sexual slander brought by a female hotel proprietor, similar reforms were enacted in 1887.^[19] Importantly, the Victorian reforms were framed within a discourse of equality and women’s rights at a time when female suffrage debates were taking off. Directly influenced by Victoria’s legislation (it was cited in the House of Commons), England finally passed their own Slander of Women Act 1891.

A MISUNDERSTOOD LEGAL HISTORY

Australia’s Slander of Women Acts stayed on the books until the Uniform Defamation Reforms of 2005. However, there has been misunderstanding within the Australian legal community about the origin of these reforms. For example, in the Australian Law Reform Commission’s Report of 1979 into ‘Unfair Publication: Defamation and Privacy’, a footnote states that removing the special damage requirement for women bringing sexual slander claims was first undertaken by the UK in 1891.^[20] In fact, as explained above, the UK was one of the last common law jurisdictions in the world to move on this issue, and directly copied Victoria’s legislation when it did so.

Such misunderstandings about the history of gender and defamation law have even made it into court judgments. In the late 1990s, Liberal politicians Peter Costello and Tony Abbott and their wives, Tanya Costello and Margie Abbott, brought a defamation case against Random House concerning Robert ‘Bob’ Ellis’s book Goodbye Jerusalem: Night Thoughts of a Labor Outsider.^[21] Whereas the imputations alleged to be defamatory to the men centred on a lack of integrity and political commitment, those alleged to be defamatory to the women related to sexual immorality, and the main issue was the capability of the imputations to defame.

At first instance, Higgins J framed the imputations to the women as ‘a lack of chastity’ and noted the UK’s Slander of Women Act 1891 and later Australian iterations.^[22] The Supreme Court of the ACT was completely unaware that the Australian colonies in fact followed the US and moved much earlier than Britain on this issue.

In applying the ‘ordinary reasonable reader’ with standards of ‘middle class morality’, Higgins J held that it was plainly defamatory to impute a woman had been guilty of unchastity in 1999.^[23] Random House appealed, particularly on the issue of imputing unchastity as defamatory. But they lost. Goodbye Jerusalem was pulped and both compensatory and aggravated damages were awarded.

Interestingly, in her recent successful defamation case against Federal Senator David Leyonhjelm, Senator Sarah Hanson-Young chose not to plead a ‘promiscuity’ imputation arose in relation to his comments that she should ‘stop shagging men’.^[24] Instead, she sued on the basis that his words imputed she was a hypocrite, made absurd comments about all men being rapists, and was a misandrist. The deliberate choice to avoid pleading the ‘promiscuity’ imputation was likely made because doing so would look old-fashioned and conservative.

GENDER AND THE FUTURE OF DEFAMATION LAW

Recent and proposed changes to defamation law in Australia may have various gendered impacts. A proposal to make reporting of criminal or unlawful conduct (such as sexual harassment) to police, statutory investigative bodies and employers protected by absolute privilege is currently under consideration. Such a reform will remove the threat of defamation proceedings for those (largely women) reporting sexual harassment and assault to authorities.

However, the new ‘serious harm’ threshold that commenced on 1 July 2021 may also influence gender dynamics at play. It requires a plaintiff to show (possibly ahead of trial) that on the balance of probabilities a publication has caused, or is likely to cause, serious harm to their reputation. It is for judges to determine over time what constitutes ‘serious harm’, as the courts have done in the UK with their 2013 analogous provision. In Lachaux v Independent Print Ltd,^[25] the UK Supreme Court held that consideration must be given to the actual facts of the publication’s impact (or likely impact), not just the meaning of the words used. In recounting the history of defamation law’s approach to harm, the Court referred to the Slander of Women Act 1891 (UK) and its repeal in 2013. In doing, it distinguished between special damage (pecuniary loss) and harm to reputation (general damage). But, while different, both are burdens upon a defamation plaintiff to show legally recognisable forms of damage (or likely damage).

The Slander of Women movement is a reminder that ideas about damage are gendered. Introducing a serious harm requirement likely favours certain plaintiffs, for instance those who have privileged economic circumstances (jobs to lose) and a high profile (more likely to be the subject of widespread media reporting). Men are more likely to have assets, public status and profiles to seriously harm due to social and economic gender inequality. As David Rolph has noted, similar defamatory circumstances in the Andrew Ettingshausen and Sonia Shepherd cases (magazine publications of explicit images) resulted in a much larger award of damages for the former.^[26] Her humiliation was regarded as less serious than his.

The serious harm threshold threatens to return defamation law to a greater protection of men’s reputational interests. Prior to the 19th century reforms, sexual slander was trivial for men, and so was counted as trivial for everyone. It took women bringing cases, across the globe, to demonstrate the seriousness of sexual slander and push for change. In other areas of law, women have fought to have the gravity of harms against them recognised by the law, including sexual harassment in the 1970s and image-based abuse in the 2010s (when police often just told victims to turn off their computers). The gendered history of defamation law sounds a note of caution about the ways in which harm, damage and loss have been and continue to be experienced and judged differently for men and women.

Dr Jessica Lake is a senior research fellow in the Gender and Women’s History Research Centre in the Institute for Humanities and Social Sciences at the Australian Catholic University in Melbourne. Her first book, The Face that Launched a Thousand Lawsuits: The American Women Who Forged a Right to Privacy, was published with Yale University Press in 2016. Her next book on the transnational and gendered history of defamation law is forthcoming with Stanford University Press. Her project is supported by a Discovery Early Career Research Award by the Australian Research Council.

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^[1] N Khomami, ‘#MeToo: How a hashtag became a rallying cry against sexual harassment’, The Guardian (21 October 2017) <https://www.theguardian.com/world/2017/oct/20/women-worldwide-use-hashtag-metoo-against-sexual-harassment>.

^[2] See, eg, P Bhaskar, ‘Milkovich, #MeToo, and “liars”: Defamation law and the fact-opinion distinction,’ Fordham Law Review, Vol. 88, No. 2, 2019, 691.

^[3] J Nordberg, ‘The case that killed #MeToo in Sweden’ New York Times (15 March 2022) <https://www.nytimes.com/interactive/2022/03/15/opinion/cissi-wallin-fredrik-virtanen-metoo-sweden.html>.

^[4] See Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496; H Tatham and H Parkes-Hupton, ‘Craig McLachlan drops defamation case against ABC, Nine and Christie Whelan Browne’ ABC News Online (20 May 2022) <https://www.abc.net.au/news/2022-05-20/craig-mclachlan-applies-drops-defamation-case/101085010>; Porter v Australian Broadcasting Corporation (No 2) [2021] FCA 1036 <https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2021/2021fca1036>; M Whitbourn and T Crockford, ‘Nine apologises to Andrew Laming in settlement of defamation suit,’ The Sydney Morning Herald (14 September 2022) <https://www.smh.com.au/national/nine-apologises-to-andrew-laming-in-settlement-of-defamation-suit-20220914-p5bhw7.html>; Christopher Knaus, ‘Bruce Lehrmann files defamation proceedings against the ABC,’ The Guardian (5 April 2023) <https://www.theguardian.com/australia-news/2023/apr/05/bruce-lehrmann-files-defamation-proceedings-against-abc>.

^[5] I Khan, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, UN Doc A/76/258 (20 July 2021) 8.

^[6] [1812] EngR 269; 128 Eng Rep 367 (1812) 371.

^[7] T Starkie, A Treatise on the Law of Slander, Libel, Scandalum Magnatum and False Rumours, Clarke and Sons, London, 1813, 647 [emphasis added].

^[8] See JA Sharpe, Defamation and Sexual Slander in Early Modern England, Borthwick Publications, 1980; L Gowing, Domestic Dangers, Clarendon Press, 1996; S Waddams, Sexual Slander in Nineteenth Century England (2016).

^[9] See R Wunderli, London Church Courts and Society Before the Reformation, Medieval Academy of America, 1981, 76.

^[10] Starkie, above n 7, 647.

^[11] See, eg, MB Norton, ‘Gender and Defamation in Seventeenth-Century Maryland’, The William and Mary Quarterly, Vol 44, No 1, 1987, 4–39; CA Bowler, ‘Carted Whores and White Shrouded Apologies: Slander in the County Courts of Seventeenth-Century Virginia’, The Virginia Magazine of History and Biography, Vol 85, No 4, 1977, 411–26; DJ Spindel, ‘The Law of Words: Verbal Abuse in North Carolina to 1730’, The American Journal of Legal History, Vol 39, No 1, 1995, 25–42.

^[12] Smith v Minor, 1 NJL 16 (1790).

^[13] 1808 NC Sess Laws 570.

^[14] See, for example: Act of 1811, 4, W Littell, The Statute Law of Kentucky, 38; 1813 Ind Acts 110; 1823 11 Laws 82; 1824 SC Acts, C 4, S; 1845 Mo Rev Code 100; 1837 Ark Acts 729 (Act of December 13, 1837); 1838 Md Laws C 114; 1839 Ala Acts 96; 1871 NY Laws, c 219.

^[15] See AJ King, ‘Constructing gender: Sexual slander in nineteenth century America’, Law and History Review, Vol 13, No 1 (Spring 1995), 63–110; LR Pruitt, ‘On the chastity of women all property in the world depends: Injury from sexual slander in the nineteenth century’, Indiana Law Journal, Vol 78, No 3 (Fall 2003), 965–1018; J Lake, ‘Protecting ‘injured female innocence’ or furthering ‘the rights of women?’ The sexual slander of women in New York and Victoria (1808–1887)’, Women’s History Review, Vol 31, No 3 (2021), 451–75.

^[16] See Sydney Gazette, 6 May 1826, 3.

^[17] See J Lake, ‘Whores aboard and laws abroad: Reputation in colonial New South Wales and the global slander of women movement’, Gender & History (18 July 2022)

<https://doi.org/10.1111/1468-0424.12632>.

^[18] See ‘Wishart v Perryman’, South Australian Advertiser, 5 June 1863, 3; An Act to Amend the Law of Slander 1865 (SA).

^[19] Albrecht v Patterson (1886) 12 VLR 597; The Slander Act 1887 (Vic).

^[20] ‘This is a statutory exception first introduced by the Slander of Women Act 1891 (U.K.) which was followed in s.8 Wrongs Act 1958 (Vic); s.5 of the Wrongs Act, 1936-75 (S.A)...’ Australian Law Reform Commission, Unfair Publication: Defamation and Privacy (Report 11, 7 June 1979) 42, fn 4.

^[21] Costello v Random House Australia [1999] ACTSC 13; (1999) 149 FLR 367.

^[22] Ibid, 378.

^[23] Ibid, 381.

^[24] Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981.

^[25] [2019] UKSC 27; [2020] AC 612.

^[26] D Rolph, ‘Dirty Pictures: Defamation, Reputation and Nudity,’ Law Text Culture, Vol 10, 2006, 101.