Sexual assault accusers not immune to defamation suit, B.C. court rules

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People accused of sexual assault have a right to sue their accusers for defamation, British Columbia’s top court has ruled, rejecting arguments that such lawsuits will strike a serious and possibly fatal blow to the reporting of sexual offences.

The B.C. Court of Appeal ruled Wednesday in the case of novelist and former UBC professor Steven Galloway, who waged a five-year legal battle for the right to sue a woman who says he raped her – an allegation he says is false and destroyed his life.

Under a B.C. law, modelled on one in Ontario, those accused of defamation can ask a court to dismiss the lawsuit if it is intended to intimidate and silence them. When Mr. Galloway sued his accuser, who was a former student, and several of her supporters who repeated the allegation, they applied to the court to throw out his defamation lawsuit.

In a 3-0 decision, B.C.’s appeal court upheld a lower-court judgment that said people who are accused of rape must be allowed access to the courts to defend their reputations.

Otherwise, “there would be no legal consequences of any kind attached to publicly calling someone a rapist, completely outside of any formal reporting, and no obligation ever to prove the statement was true,” B.C. Supreme Court Justice Elaine Adair said in a 2021 ruling.

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Citing that comment, the appeal court found that Justice Adair understood the importance of encouraging the reporting of sexual offences, but also “recognized that there cannot be an absolute protection surrounding the makers of such statements, regardless of the circumstances or the truth.”

In October, 2018, Mr. Galloway sued a woman identified as A.B. – her name is covered by a publication ban – and several of her supporters over an art show, as well as comments posted on the internet and made in meetings and other communications, accusing him of raping and physically assaulting her.

On Wednesday, Mr. Galloway applauded the appeal court decision that his defamation claims could go ahead.

“All I have asked for is the chance to prove in a court of law that the allegations made against me, and repeated as truth by the defendants in this case, are false,” he said through his lawyer, Daniel Burnett, in an e-mailed statement. He stressed that his lawsuit was about comments made outside of the sexual-assault reporting process at his former employer, the University of British Columbia.

Joanna Birenbaum, a lawyer for A.B., said she will review the ruling with her client and consider asking the Supreme Court to hear an appeal.

“We remain extremely concerned about the serious implications of this judgment for survivors of sexual violence, including and in particular students, staff and faculty of universities and colleges,” Ms. Birenbaum said in an e-mail.

She said the Supreme Court of Canada has described eliminating sexual violence against women as a pressing challenge. She added that a key question in the Galloway case has been how to make it safer to disclose sexual assault and to remove stigma and shame.

Mr. Galloway’s legal battle, depending on one’s perspective, pitted “cancel culture” in the arts and universities against women’s struggle to overcome the silence and stigma that often accompanies sexual assault.

It was also a major test of Canada’s anti-SLAPP laws, which are meant to deter the wealthy and powerful from bringing costly, drawn-out defamation cases against people who are attempting to express themselves on issues of public interest. (SLAPP stands for strategic lawsuits against public participation.)

Anti-SLAPP laws in B.C. and Ontario were designed to allow for quick dismissal of a defamation claim where appropriate. But in practice, those laws have themselves become a bitter and expensive forum for determining whose rights matter more: the speaker’s or the potentially defamed person’s.

And the Galloway case became a “poster child” for the problems in anti-SLAPP cases, says Hilary Young, a law professor at the University of New Brunswick who has published research on anti-SLAPP rulings.

“In media law circles, people refer to a ‘Galloway,’ meaning a case that becomes bogged down in procedures and becomes incredibly time-consuming and expensive: ‘careful, this case could turn out to be a Galloway,’ " she said.

Mr. Galloway is a former chair of UBC’s creative writing program whose best-known work is The Cellist of Sarajevo, published in 2008. In 2016, he was fired over breach of trust and misconduct. He and A.B. had sexual relations between 2011 and 2013 that he says were consensual, and she says were abusive. She complained to the university.

In 2015, UBC asked retired B.C. judge Mary Ellen Boyd to investigate. In 2016, she found that, on a balance of probabilities, it could not be established that he committed sexual assault or assault. He was not charged by police.

Among the expressions Mr. Galloway sued over was an art show featuring a “rape narrative” from A.B., backed by online publicity. She also published statements such as: “It’s terrifying to try to exist in the world again, because not only is the man who raped you determined to punish you, so are many powerful people who support that man.”

Under the anti-SLAPP law, Justice Adair in 2021 had to decide whether the public interest in allowing the lawsuit to go forward outweighs the public interest in protecting the expression of the ones being sued. Mr. Galloway had to show he had a strong chance of winning his lawsuit, and that A.B. and her supporters had no valid defences.

Fair comment is a defence to defamation, but Justice Adair said calling someone a rapist is a statement of fact. She made no judgment on whether any sexual assaults occurred, and neither did the appeal court.

Ms. Birenbaum argued on A.B.’s behalf that greater weight should be given to ensuring justice for sexual-assault victims and less to reputational harm. Letting the lawsuit proceed, she argued, would reverberate beyond B.C. and set back the reporting of sexual assault.

Editor’s note: This article has been updated to clarify the findings of Mary Ellen Boyd, the retired judge brought in by UBC to investigate complaints against Stephen Galloway.