A Suggested Civil Action When Falsely Accused

Ralph Underwager, Eliot Clauss, and Hollida Wakefield*

When falsely accused, some persons want to get it behind them, close it off, forget it, and build a new life.  Others are so damaged and depressed they choose to withdraw and may cease to function.  For others there is a strong desire for vindication and justification.  They want to find a way, somehow, to clear their name of the label child molester.  In some instances there is an additional element of anger and seeking vengeance.  Some say they want to find a way to change the system so others will not have to go through the hellish stress they have experienced.  The most frequent sentiment we have heard is the desire to do something that will protect children from the damage and harm done to children by false accusations.

Those who have been falsely accused and have gone through adjudication to hear a not guilty verdict or a finding of fact of no abuse invariably hear someone say, "Well, that doesn't mean he didn't do it.  It just means we couldn't prove it."  Often the person saying that will add "... and I know (believe) he really did it."  Against such arrogance and insistence upon self-serving higher knowledge there is little or no recourse.  Therefore falsely accused individuals often find themselves frustrated, blocked, and forced into a continued defensive posture about their life and character.  Most persons falsely accused at one time or another consider a civil action as a recourse, a remedy, or an attempt to clear their name.  They soon discover, however, that it may be difficult to find an attorney willing to take their case.  Civil actions are costly, hard to establish and prove, and encounter the immunity, either absolute or qualified, courts have granted to reporters and professionals within the system.  Malice, particularly, is difficult to prove.

There are two distinct groups that are active in developing and pursuing allegations that are false.  They are, first, the lay persons who become involved at the beginning and bring an accusation to the attention of authorities.  The second group is those who are in the system mental health professionals, social workers, law enforcement, victim advocates, guardians ad litem and prosecutors.  In the course of investigating or pursuing an accusation, some people in both groups come to a belief the accusation is true and a particular identified individual is the perpetrator.  This conclusion then appears in documents, reports, testimony, etc.  Expression of the opinion a person is a child abuser or child molester may be publication of a defamatory statement and may offer a basis for a defamation action.

In describing the liability and vulnerability of professionals dealing with child abuse, Besharov (1985) describes the issue of defamation in this fashion.

Until recently it would have been said with great certainty that a successful challenge to established agency and professional practices would be unlikely.  But this has changed.  Heightened public and professional concern over child abuse especially sexual abuse has led to the adoption of a number of questionable practices.  Some agencies, for example, now authorize (or require) intervention based on the most tenuous of circumstantial evidence.  Circumstantial evidence is often the only way to establish that a child has been abused. ... In a misguided attempt to protect children, however, there has been a recent tendency to use these "behavioral indicators" as the sole (italics author's) basis for intervention.  This is a mistake.  Behavioral indicators are notoriously overinclusive; their use as the sole basis of decision falsely labels many innocent parents.  Ignoring this reality will expose workers and agencies to recurrent law suits (D. J. Besharov, 1985.  The Vulnerable Social Worker. Silver Spring, MD. National Association of Social Workers, p.90).

 Elliot Clauss, attorney, in responding for a client to a false allegation of child sexual abuse, has pursued a civil action involving defamation and added a new consideration, that labeling someone a child abuser or child molester is defamatory and malicious per se and does not require any demonstration of malice or damages.  Traditionally, to claim that a woman is unchaste is defamatory per se.  However, to say that a man is unchaste is not also considered defamatory.  In this claim, Mr. Clauss is attempting to extend the principle of defamation per se to the situation where a man is labeled a child molester.

In pursuit of this claim, he asked us to provide a scholarly examination of the similarity between labeling a woman a prostitute, whore, or slut and labeling a man a child molester.  In this article we reproduce Mr. Clauss's Memorandum of Law, our Affidavit, and a partial transcript of a hearing to illustrate the judge's response to the presentation of the issue.  The judge did not rule on the issue of per se defamation yet.  He reserved that ruling to follow the full presentation of the claims in trial.  We reproduce this material because of its intrinsic interest and as an example for possible avenues to deal with the situation and the emotions generated by a false accusation of child sexual abuse.  In the Memorandum of Law and the partial transcript all names and any identifying data have been changed to fictitious names and information.
  

UNITED STATES DISTRICT COURT

JOHN DOE
NO.: XXXX

V.

HAPPY HILLS CAMP, ET AL.
JULY, 1989

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

I. Preliminary Statement

Defendants seek summary judgment claiming in essence that to ask a person "when did you stop beating your wife" does not defame that person because the question does not affirmatively and expressly accuse the person of the crimes of assault and battery.  Like the defendant in Ventresca v. Kissner, 105 Conn. 533 (1927), defendants here might argue that to say "Maria Ventresca is a bad woman.  She runs around with her boarders" does not constitute defamation per se, because jogging with one's tenants is perfectly acceptable behavior.

Defendants' effort to claim that the words they spoke and actions they took were innocuous should be rejected by this Court as vacuous posturing.

The complaint in this case alleges that defendant Dennis Crawford as an agent of Happy Hills Camp ("HHC") and the co-defendants publicly said of the plaintiff: "Watch out for John Doe because he's known for liking young boys.  If he ever tries anything, just tell one of us."  Amended Complaint, paragraph 10.  Following that conversation, plaintiff was told to leave the 1988 HHC session because of his "inappropriate behavior, i.e. preoccupation with young boys."  At the time plaintiff was ousted the defendants knew there was no truth to at least one alleged incident of "inappropriate behavior" and none of the other defendants had made any effort to question the only two boys thought to have been the object of Plaintiff's "inappropriate behavior."

Because of an uninvestigated and unfounded fear that John Doe would sexually molest some young boys in attendance at the session, defendants threw him out.  Because of these "events" plaintiff is not considered a candidate to attend future sessions.  Rather, defendants have the gall to claim that the alleged defamatory statements "clearly do not charge the plaintiff ... with commission of a crime, infamous or otherwise."  Defendants claim that "to like, or be preoccupied with young boys is not a base, vile or depraved act constituting a crime of moral turpitude "beyond all question."  Defendants' Memorandum of Law, pp.9-10.

Defendant's motion should be denied in its entirety and plaintiff's motion for summary judgment finding that the words defendants uttered and wrote about the plaintiff were defamatory per se, should be granted and the issue of plaintiff's damages should proceed to trial.
  

II. Factual Background

Plaintiff's Amended Complaint alleges three counts of slander, one count of libel and two counts involving infliction of emotional distress.  All of the claims arise out of plaintiff's attendance of the 1988 session of HHC which was held at the Broadplace School in Anytown, Anystate between January 12 and January 24, 1988.  The fifth and sixth causes of action are not subjects of defendant's or plaintiff's motions.

Plaintiff arrived at the Broadplace School for the 1988 HHC session on or about January 14, 1988.  During that session Dennis Crawford told Daniel Anderson, then a 13-year-old boy, to "watch out for John Doe because he is known for liking young boys.  If he ever tries anything, just tell one of us."  That statement was made in the presence of another adult male.  On the evening of January 16, 1988 a meeting of the faculty of HHC was held at which allegations of John Doe's alleged preoccupation with young boys was discussed and it was determined that John Doe would be asked to leave the remainder of the session.  On the morning of January 17, 1988, John Doe was asked to attend a meeting with Harrison Adams, Sara Jones, and Bob Walters.  At that meeting John Doe's alleged "inappropriate conduct, i.e. preoccupation with young boys" was discussed with John Doe and he was asked to leave the remainder of the HHC session, although he was allowed to return for the anniversary banquet on Saturday, January20, 1988.  The conversations which took place during that meeting were summarized in a memorandum dated Wednesday, January 17, 1988 which was prepared by Harrison Adams.

The principal basis for John Doe being asked to leave the 1988 HHC session involved two instances of physical contact between John Doe and two young boys, which occurred in public environments in plain view of a number of people.  Harrison Adams testified at this deposition that one incident involved John Doe touching muscles of Daniel Anderson while John Doe was demonstrating to Daniel Anderson the use of certain weight lifting equipment.  Defendant Adams claims that he could tell by Daniel Anderson's "body language" that Daniel was uncomfortable with the contact.  None of the defendants inquired of Daniel Anderson prior to plaintiff's ouster from the 1988 HHC session, whether in fact any untoward behavior had occurred between plaintiff and Daniel Anderson or whether Daniel Anderson was made uncomfortable in any of his interactions with John Doe.  Daniel Anderson has specifically denied feeling uncomfortable with the attention given him by John Doe and has denied that any inappropriate sexual contact of any nature took place.

Defendant Bob Walters observed plaintiff throw his arm about a young boy named Jeremy Moore while Jeremy and plaintiff were standing in front of an entrance to the dining hall.  After plaintiff departed, defendant Walters inquired of the boy if he had been made uncomfortable by the contact.  The boy denied it.  Notwithstanding actual knowledge that no "inappropriate behavior" had occurred between John Doe and Jeremy Moore, defendant Walters participated in the discussions leading up to and culminating in Doe's being told to leave the 1988 HHC session.

The defendants have conceded that they feared that John Doe would sexually molest young boys in attendance at the 1988 HHC session unless he were required to leave the session.  Defendant Sara Jones testified as follows:

Q: When you used the term "inappropriate" does that have a sexual connotation in the context of your discussion with Harrison Adams?
A: It could, it could.
Q: In your own mind?
A: Yes, probably I'm interpreting that as meaning sexual, yes.
Q: In retrospect, sitting here today looking back...
A: Right.
Q:

... do you interpret the reasons for John Doe being asked to leave the HHC as having sexual connotations?

A: The possibility that they would be sexual, yes.
(Jones Deposition pp.32-33.)

Dennis Crawford testified:

Q: When you say that you were concerned that something might happen, by that do you mean something might happen of a sexual nature between John Doe and a young camper?
A: That's correct.
Q: Did any young camper at the ... young person in attendance at the 1988 HHC session ever come to you and express a concern that something might happen of a sexual nature between them and John Doe?
A: Not specifically to me, no.
Q: That answer, when you use the terms "of this nature" or "some kind of a problem," again you're referring to some kind of sexual misconduct between John Doe and some young boy; is that correct?
A: Yes.
(Crawford Deposition, pp.31 and 33.)

Similarly, Bob Walters, when asked what he understood the phrase "a preoccupation with young boys" to mean, testified:

A: That he (John Doe) preferred their company or was seen with them or was most demonstrative towards them.  He seemed to have a preference of socializing with the young boys rather than adults or any other campers.
Q: Was your understanding of that phrase, "preoccupation with young boys" ... well, did your understanding of that phrase, "preoccupation with young boys" include a sexual connotation or potentially sexual connotation?
A: I don't believe it was a statement of sexual connotation but it possibly ... I suppose anything is possible.
(Walters Deposition, pp.25-26.)

Defendant Jones, the director of HHC, when asked at her deposition if she had her own opinion about whether it would be appropriate or acceptable for John Doe to attend the 1990 HHC session responded "I would say it would not be in his best interest or ours for him to attend that session."  Similarly, when defendant Henrietta Hodges, a founder of HHC, was asked whether HHC had a position as to whether or not John Doe would be allowed to attend HHC's next session, she responded: "We feel we have the privilege ... the privilege of turning ... of just not accepting a registration of anyone that we feel might not be a good influence on our young people or would be an unwise association with our young people.  We have that privllege."

Dr. Ralph Underwager, a licensed consulting psychologist and expert in the field of allegations of child sexual abuse has submitted an affidavit in support of plaintiff's motion for summary judgment and in opposition to defendants' motion for summary judgment.  Dr. Underwager states with respect to what Dennis Crawford stated to Daniel Anderson as alleged in paragraph 13 of the Amended Complaint, that:

It is my professional opinion this is an unambiguous and clear statement classifying (John Doe) as a child molester.  The meaning and the content of the statement is an allegation of concupiscence, licentiousness and propensity for sexually acting out with children.  Children hearing this statement would likely understand its import and believe the man was a likely child molester (Underwager Affidavit).

Plaintiff's counsel sent letters to each of the defendants demanding a retraction of the statements made.  Each of the defendants admits not responding to the retraction requests.

Defendants have not brought forth one witness who can identify any actual instance of misconduct or inappropriate conduct or sexual conduct between the plaintiff and any male who was in attendance at the 1988 HHC session, or elsewhere, to support their affirmative defense of truth.  Indeed, in Defendants' answer to plaintiff's interrogatory which asked: "If you intend to assert the defense of truth in answer to the complaint, (a) identify each person who participated in, witnessed or has information concerning one or more incidents of inappropriate conduct" (which was defined by plaintiff as "conduct of the plaintiff which the defendants claim was a threat or danger to the health, safety, well-being and or morals of any male under the age of 18"), defendants responded: "without waiving their general objections, defendants are presently unaware of any person who participated in, witnessed or has information concerning one or more incidents of inappropriate conduct as defined herein."
  

III. Legal Argument

A. PLAINTIFF HAS CLEARLY ALLEGED STATEMENTS WHICH CONSTITUTE DEFAMATION PER SE.

The words spoken by defendants accuse plaintiff of being known to be a criminal a child molester and thus are clearly defamatory per se.  In Wright, D. & Fitzgerald, J. Connecticut Law of Torts, 147(2nd Ed. 1986), the following categories of slander per se are outlined:

a. Charging the commission of crime involving moral turpitude;
b. Charging a person with an existing loathsome, contagious disease;
c. Charging a woman with being unchaste;
d. Charging incompetence or dishonesty in an office;
e. Statements in derogation of one's existing business; and
f. Charging a professional man or woman with incompetence.

Where an allegation of slander per se is established, injury to reputation is presumed, and need not be proven by special damages or otherwise.  Id.  Urban v. Hartford Gas Co., 139 Conn. 301, 308 (1952).  Where defamation per se is established, plaintiff is entitled to recover general damages for the injury presumed to his reputation and for the humiliation and mental suffering caused him.  See Proto v. Bridgeport Herald Corp., 136 Conn. 557, 571 (1950).

Connecticut courts have long recognized slander to be actionable per se where the utterance falsely charges a crime involving moral turpitude or to which an infamous penalty is attached.  Moriarty v. Lippe, 162 Conn. 371,383(1972); Yakavicze v. Valentukevicious, 84 Conn 351, 353 (1911).  The court in Moriarty recognized that "moral turpitude ... is a vague and imprecise term to which no hard and fast definition can be given."  Id. [citations omitted].  Nonetheless the court defined moral turpitude in that case as "an act of inherent baseness, vileness or depravity in the private and social duties which man does to his fellow man or to society in general, contrary to the accepted rule or right and duty between man and law."  Id. [citations omitted].  Webster's Deluxe Unabridged Dictionary, 2d. Ed., (1979) defines "morals" as "principles and practices in regard to right, wrong, and duty; ethics; general conduct or behavior, especially in sexual matters."  The same dictionary defines "turpitude" as "baseness and shameful wickedness."

"Defamatory language may be connected with other language in a way which explains that its use is not defamatory.  It may be so attached to a subject or an event, as that it does not have the meaning which the words ordinarily import."  Yakavicze v. Valentukevicious, supra at 353:

Words claimed to be slanderous are to be given their natural and ordinary meaning and to be understood in the sense which hearers of common and reasonable understanding would ascribe to them; and where their meaning is not apparent upon their face it is for the jury to determine what it was ... Whether or not an utterance is slanderous per se depends, not upon the necessity of an innuendo to make clear its purport, but upon the nature of the charge embodied in it, taking it in the sense in which common and reasonable minds would understand it.  Terry v. Hubbel, 22 Conn. Sup 248,255-256 (1960) [citations omitted].

This court, in determining, as a matter of law, whether the statements alleged are defamatory per se as a matter of law, must examine the statements in their entirety, not in incomplete parcels as defendants would have the court view them.  We are not talking in this case simply about whether or not the plaintiff "likes young boys" in the sense that any adult or parent may be thought to like boys.  Rather, the words alleged in the complaint, "Watch out for John Doe because he's known for liking young boys.  If he ever tries anything just tell one of us," spoken by Dennis Crawford to Daniel Anderson, must be given their natural and ordinary meaning so as to be understood in the sense which hearers of common and reasonable understanding will ascribe to them.  In this instance, the words of Dennis Crawford clearly tell Daniel Anderson that John Doe is known to sexually molest children and that should John attempt to molest Daniel, Daniel should inform one of the adults.  As outlined in this memorandum, it is clear that not only do the words alleged convey the notion that plaintiff is a child molester, that is what defendants intended those words to convey, because that was their fear.

In Yakavicze v. Valentukevicious, supra, the court said: "to say of one, 'you murdered my brother, he never intended to shoot you when he drew his pistol on you,' is not a charge of murder, since the meaning of the charge is controlled by the occurrences which proceeded and occasioned the killing."  Similarly here, using the same rationale, the language spoken by Dennis Crawford cannot be construed innocuously.  The language on its face charges the plaintiff with being a child molester and certainly when "controlled by the occurrences which proceeded" and succeeded the making of the statements, it is clear that the plaintiff is being charged with being known for having committed a criminal act child sexual abuse.

It would seem not to require any argument that to be a child molester, to commit the crime of child sexual abuse, is a crime of moral turpitude.  Plaintiff believes this court can take judicial notice that our society has been intently concerned with issues of child abuse at least since the promulgation of the Child Abuse Prevention and Treatment Act, Public Law 93-247, 42 U.S.C 5101 et seq. in January 1974.  As stated by Dr. Underwager:

Child abuse and child sexual abuse are thought to be epidemic in our society.  Much is made of the rapid increase in reports of abuse.  It is sometimes claimed that not only have reports increased, but the actual frequency of abuse has dramatically increased to produce such startling numbers as 1,500,000 American children abused every year.  This is fifteen to twenty times the estimates of the frequency in other societies.  The conclusion then drawn is that our society is sick (Underwager Affidavit).

That the crime of child abuse is infamous also seems to go without saying.  Conn. General Statute 53a-71 indicates that a person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is under 16 years of age.  Sexual assault in the second degree is a Class C Felony for which nine months of the sentence imposed may not be suspended or reduced by the court.  Where a crime, such as that of sexual assault in the second degree, is punishable by imprisonment, it is considered an infamous crime.  Battista v. United Illuminating Co., 10 Conn. App. 486, 493 (1987) (citations omitted).

Words, though actionable in themselves, may concern a transaction which constitutes no crime, the circumstances be stated or known to the hearers which show that no crime was committed or intended to be charged.

A charge of a crime will be presumed to be intended unless facts and circumstances attending its making indicate that there as not intent to charge a crime. Yakavicze v. Valentukevicious, supra, at p.354 (citation omitted).

The words defendants spoke of plaintiff clearly accuse him of criminal conduct.  Defendants in their depositions admitted plaintiff was asked to leave because they were concerned that criminal conduct of a sexual nature might occur between John Doe and some young boy were plaintiff to stay at HHC.
  

B. THIS COURT SHOULD RULE THAT FALSELY ACCUSING A MAN OF CHILD ABUSE IS DEFAMATORY PER SE:

It has long been recognized that any words imputing to a woman a breach of chastity are actionable per se as slander, without any further averment.  Frisbie v. Fowler, 2 Conn. 707; Kennenberg v. Neff, 74 Conn 62 (1981); Ventresca v. Kissner, supra; Page v. Merwin, 54 Conn. 426 (1887).  Indeed in Page v. Merwin, it was held that to accuse a man of the crime of fornication was defamatory per se.

The court in Page v. Merwin, citing Frisbie v. Fowler, supra, indicates that the rationale for characterizing as defamatory per se an allegation that a woman is unchaste, is that "by the laws of this State the breach of chastity in every form, from adultery to mere lascivious carriage, is punishable by statute," Page v. Merwin, supra at 434.  The designation of acts constituting crimes, being creatures of statute, are by definition, reflective of the will of the people.

As more fully expounded in the affidavit of Dr. Ralph Underwager, there is a long historical tradition undergirding the opprobrious nature of a statement that a woman is unchaste.  According to the Old Testament of the Bible, a woman who showed licentiousness was stoned to death on the ground that she threatened the life of the whole people and made her father's house into a house of whoredom.  A priest's daughter guilty of licentiousness was burned alive because she desecrated the sacred person of her father.  Toleration of intercourse outside of marriage by a daughter of Israel defiled the whole land and brought it under the judgment of God.  See Underwager Affidavit, p.4.  In the New Testament all extramarital and unnatural intercourse is repudiated.  Id.

Dr. Underwager notes that during the 15th through 18th Century western civilization's response to human sexuality included the pursuit and extinction of witchcraft

The heresy of sexual passion became evidence in proof of the heresy in the name of witchcraft ... the allegation at the base of the concept was concupiscent and licentious sexual behavior between women and various demi-gods and demons.  The theory of demon possession has its roots in unfounded dogmatic beliefs about unchaste sexual acts. ... There was little chance that those in pursuit (of witches) would fail to find them.  Guilt was proved by accusation ... Throughout history an accusation of licentious, unchaste behavior against a woman has had the power to establish guilt without determination of the facts.  Id.

Dr. Underwager concludes his summary of the classification of unchastity by saying

The cognitive, emotional and moral contents of the classification of unchaste, promiscuous, concupiscent, and licentious behavior by women has remained constant across cultures and time.  It is pernicious, baneful and baleful.  This fact is the basis for the law's awareness that an accusation is damaging in and of itself and does not require further proof of damage.  Id.

In his affidavit Dr. Underwager also traces the history of societal perceptions of child molestation.  Dr. Underwager notes that in the mid-16th century legislation in England reflected a sense that there was a need for protecting children from sexual exploitation.  Laws were passed in the 16th Century protecting boys from forced sodomy and girls under ten from forcible rape.  Id.

While concerns about children's sexuality went through various phases and fluctuations, Dr. Under-wager notes that a new era of public attitudes toward abuse in general and sexual abuse in particular, began in 1874.  In that year, the Society for the Prevention of Cruelty to Animals intervened in a case where a stepmother was found beating her child with a leather thong and allowing the child to go scantily clothed in bad weather.  The child was removed from her home and the stepmother was sentenced to prison.  In that same year a social welfare agency dealing specifically with sexual abuse and children's "immoral" behavior was established in new York, representing the first time the government accepted the power to remove children from their parents because of sexual abuse or children's immoral conduct.  Id.

A more recent watershed development in the public concern with child sexual abuse occurred in 1974 with the signing by President Nixon of the Child Abuse Prevention and Treatment Act, Public Law 93-247, 42 U.S.C 1501, et. seq.  Underwager notes that since the passage of that statute child abuse and child sexual abuse increasingly are thought to be epidemic in our society.  Underwager notes

It has been asserted that Americans, for all practical purposes, American males, have suddenly and inexplicably begun to abuse children in larger numbers and with more bizarre behaviors than have ever been known in the world before ... Men accused of sexual molestation are declared to be emotionally sick. ... Molesters are said to be unable to change.  Treatment can only help to place checks on the behavior, not change their inner disposition to abuse children.  Id.

Underwager goes on to say

The progression in our society's consciousness from physical abuse to sexual abuse means that emotions generated by the former are attached to the latter.  Add the antisexuality evident in the prevention literature, the broad definitions of sexual abuse so as to include almost any touching, and the genitalized view of sexuality found in the literature and rhetoric dealing with child sexual abuse.  The result is the society's emotional investment in the pursuit and punishment of sexual abusers.  Id.

Dr. Underwager concludes

A historical and content analysis of the classifications of unchaste women and child molester have demonstrated extensive similarities between the two concepts.  Both are equally opprobrious, pejorative, baleful and baneful.  If the law accords the presumption of damage to this statement indicating classification of individual as an unchaste promiscuous or licentious woman, then it must do so for a statement alleging a classification as a child molester.  The damage done is equally as devastating, if not more so than an appellation of unchastity.  Id.

The legal and sociological basis for interpreting an allegation of unchastity to a woman as defamatory per se is equally, if not more applicable to an allegation that an individual, particularly a man, is a child molester.  Indeed, the allegation that one merely "may be" a child molester is sufficiently damaging and opprobrious to warrant a finding that it is defamatory per se.
  

C. DEFENDANTS' STATEMENTS ARE DEFAMATORY PER SE BECAUSE THEY TEND TO DAMAGE PLAINTIFF IN HIS PROFESSIONAL AND BUSINESS ENDEAVORS

As noted above, in addition to allegations of crimes involving moral turpitude and unchastity, it is also slanderous per se to make statements in derogation of one's existing business or charging a professional man with general incompetence.  Wright & Fitzgerald, Connecticut Law of Torts, 147 (2nd Ed., 1968).  For the reasons set forth in the point above outlining the history of allegations of unchastity and child molestation, plaintiff contends that the allegation by the defendants that plaintiff was known for liking young boys and thus constituted a risk of injury to young boys in the camp, is language clearly charging him with "general incompetence," and is damaging to plaintiff in his business or profession.  Even this court recognized the devastating potential of repeating such an allegation in the discovery proceedings in this case and restricted defendant's ability to make inquiries of plaintiff's former employers and other associates concerning misconduct.

Defendant had in its Request for Production, Inspection and Examination asked for authorization forms to enable defendants to seek "basic background information such as plaintiff's prior residences, employment history and previously held physical fitness positions."  Defendants claimed this information was necessary to enable them to investigate issues raised by plaintiff's allegations and to properly prepare their defense.  At the argument on the motion, defendants' counsel argued that her inquiries should not be limited in any way, and that she should be entitled to specifically inquire of previous employers if plaintiff was known or had a reputation in any of these locations for having an interest in young boys or some sort of sexual preoccupation with young boys.  Plaintiff argued that such an inquiry would increase the very harm that plaintiff was trying to redress by this lawsuit.  Plaintiff argued that defendants' inquiries should be limited to broad-based questions seeking information generally about plaintiff's reputation, and that if, and only if, a response to such an inquiry suggested the need for a further inquiry on specific items of misconduct, that defendant should then return to the court for further guidance as to how to conduct that investigation while trying to minimize further injury to the plaintiff.  The court by its order granted plaintiff's motion to compel production of authorizations and to permit such background inquiries but limited the extent and manner to which plaintiff could make those inquiries.  The court's ruling on that motion constitutes clear recognition of the fact that even to ask plaintiff's employer if he had a reputation for being preoccupied with young boys, would tend to injure plaintiff in his profession.  Clearly, such a question suggests that plaintiff has engaged in some kind of improper and criminal conduct with young boys.  The question clearly impugns plaintiff's integrity.  With respect to the motion to compel a response to defendants' Interrogatories and Production requests, this court quite correctly acknowledged the harm explicit in making such an inquiry.
  

D.  DEFENDANTS' WRITTEN STATEMENTS ARE CLEARLY LIBELOUS PER SE

Count IV of plaintiff's Amended Complaint alleges a cause of action for libel.  Specifically, plaintiff claims that the words spoken by Dennis Crawford were reduced to writing by the defendants and were published and disseminated by them to other persons involved in physical fitness at Happy Hills Camp and elsewhere.  Amended Complaint, paragraph 13.  Indeed, in response to a discovery request, the defendants produced a memorandum dated January 17, 1988, which purports to be a summary of a discussion held on that day among Harrison Adams, Bob Walters, Sara Jones and plaintiff John Doe.  That document was prepared by Harrison Adams and retained in his files until approximately the spring of 1988 when it was disseminated to Bob Walters and Sara Jones.  While the document scrupulously avoids such words as "child abuse" or "child molester" or "pedophile," whether that document is libelous per se must be determined upon its face.

While the court must obviously consider the document in its entirety, the following language is particularly reflective of the topics discussed: to wit, the allegation that plaintiff is a child abuser and that his presence constitutes a threat to the safety and health of young boys in attendance at HHC.  The first paragraph of the memorandum indicates that the meeting was regarding "Mr. Doe's inappropriate behavior, i.e. preoccupation with young boys."  Paragraph 2 says in part, "we voiced our concerns about HHC, Broadplace and John's reputation."  Paragraph 3 indicates that "all agreed to the following: a) watch John while he is here. b) ask him not to return as he had planned."  Paragraph 4 concerns "John's response to allegations."  It includes the statement that he "asked to meet with staff and discuss the entire issue and confront those who had accused him.  We stated this was not possible as it is a very sensitive issue."  Paragraph (f) reads "he stated that he had been tried and convicted.  We stated this was not a court of law."

The language of the document clearly admits that John Doe had been accused of misconduct involving inappropriate behavior with young boys which was of such a sensitive nature that John could not even discuss it with anyone.  In response to John's statement that he had been "tried and convicted," the assembled group of Adams, Walters and Jones responded, in essence, that they had no obligation to permit John to defend himself against the accusations since "this was not a court of law."  Indeed, it was little more than a lynch mob.

To claim as defendants do that "there are no libelous statements in this case ... there is nothing substantially untruthful in this document" is audaciously facetious.  Plaintiff has contested since the meeting on January 17, 1988, the allegation that he had engaged in any "inappropriate behavior" or had any "preoccupation with young boys" as specified in the document and as spoken to Daniel Anderson by Dennis Crawford.  When plaintiff was asked at this deposition if the document was "a general description of the events that took place at the meeting on January 17" he responded that "it appears to be a rather revisionist view of what took place ... There are some omissions which would give you a wrong idea of what this means."  While the document contains the statement "he (John Doe) thanked us for acting quickly and professionally," plaintiff testified that this was a bald statement which failed to reflect the sarcastic tone with which John "thanked" those present at the meeting.  In response to the question from defendants' counsel "is there anything that is untruthful in the summary as it is set forth," Doe responded:

Twice he, twice the statement there talks about thanking them for acting professionally, and what actually happened was that I very bitterly and sarcastically said to them that I would like to thank you for acting so professionally now that the entire faculty is convinced I am a child molester and the damage is done.  I am very glad to see you are taking steps to make sure it doesn't go any further.

In essence, plaintiff testified this document was a truthful recitation of false and defamatory statements made against him.  That is a far cry from an admission by plaintiff, or the establishment by defendants, that the document truthfully proves defendant was in fact a child abuser, so that the document can be found not to be libelous at all.

Where a party seeks to defend a libel action on the basis of truth, his obligation is to prove that the acts alleged in fact occurred, not that some document with truthful accuracy recounted false and defamatory statements made in a conversation.  Defendants have glaringly failed to offer even one scintilla of evidence in support of their defense of truth.  As noted in the factual section of this memorandum, the defendants specifically state that they are "presently unaware of any person who participated in, witnessed, or has information concerning one or more incidents of inappropriate conduct as defined herein."  Conspicuously absent from defendants' Motion for Summary Judgment is an affidavit from any individual who observed plaintiff conducting himself in such a way as to establish truth as a defense to the libelous statements contained in the document, or the slanderous statements alleged in the first three counts of the complaint.  In contrast, plaintiff has established through the affidavit of Daniel Anderson and the testimony of the defendants, that in fact no instances of conduct substantiating the truthfulness of defendants' allegations took place.

In Charles Parker Company v. Silver City Crystal Company, 142 Ct. 605, 611 (1955), the court says:

If one deliberately commits defamatory words to writing or printing and then publishes them by reading them aloud or by circulating copies, as in a newspaper, to others, the offense is much more serious and the result much more permanent than if the words were simply spoken. ... What gives the sting to the writing is its permanence of form.  The spoken work dissolves, but the written one abides and perpetuates the scandal. ... The basis of the distinction between libel and slander is the written or printed word or passage.  Having been reduced to permanent form and published, the written or printed word has greater capabilities of harm.  (citation omitted)

While the very nature of the false accusations made against plaintiff herein and his public discharge from the 1988 HHC session themselves are stinging indictments of plaintiff, those events are made even more harmful through their perpetuation in the files of Happy Hills Camp by this memorandum of meeting dated January 17,1988.

Although defendants don't specifically claim that this document is protected by a qualified privilege, they obliquely refer to that concept at page 14 of their memorandum of law when they say "the document was not published to anyone not in attendance at the meeting, or named as a defendant in this lawsuit."  Plaintiff has not found any case which suggests that a qualified privilege extends among defendants to a lawsuit.  Furthermore, to the extent a qualified privilege may have existed:

A conditional or qualified privilege may be abused or lost if the defendant published or broadcast the defamatory remarks with malice, improper motive, or bad faith. ...  Therefore, a conditional privilege may be recognized only where the statement is made in good faith, without malice, in an honest belief in the truth of the statement, and in discharge of public or private duty.

Miles v. Perry, 11 Conn. App. 584, 594, (1987); Atwater v. Morning News Co., 67 Conn. 504, 513 (1986); and Charles Parker Co. v. Silver City Crystal Co., supra.  Where the plaintiff is a private individual, he only needs to prove actual malice in order to rebut a defense of privilege and recover general damages, merely by a preponderance of the evidence.  Miles v. Perry supra, at 590.

Miles v. Perry is a particularly illustrative case because of a factual similarity between that case and the case now before the court.  In Miles, the defendants appealed from a trial court conclusion that they had defamed the plaintiff, a former financial secretary of a church, by stating orally and through photographic slides and prepared texts supporting their oral statements, that the plaintiff had engaged in "questionable transactions."  At trial various witnesses testified on behalf of the plaintiff that there was no question in their minds that defendants' reference to the "former financial secretary" related to the plaintiff and that all the defendants were accusing the plaintiff of misappropriating church finds, notwithstanding that the misconduct was couched in terms of "questionable transactions."  Id. at pp.586-587.  With respect to the defense of privilege, the Appellate Court said:

The privilege extends to defamatory falsehoods only if made without malice, under an honest belief that they are true and in good faith.  The trial court in this case specifically found that defendants failed to act in good faith, and that finding is supported by the evidence.  The evidence showed the frailty of the defendants' claims and the ease with which they could have ascertained the truth upon a good faith investigation before accusing a devoted and longstanding church member of misappropriating church funds.  Miles v. Perry, supra. at 599.

Here, defendants Hodges, Crawford, Walters, and Jones have testified at their depositions that they made no inquiry whatsoever of the two boys who were believed to have been the objects of inappropriate behavior by John Doe.  Daniel Anderson's affidavit states specifically that "at no time during the session did any person ask me if I had any sexual conduct with Mr. Doe or if Mr. Doe had indicated to me in any way a sexual interest in me."  Further, Daniel Anderson acknowledged the physical contact directed to him by John Doe while Doe was instructing him in the use of weight lifting equipment, which was testified to by defendant Adams.  But Anderson said "at no time whatsoever did Mr. Doe ask me or encourage me to engage in any sexual contact with him.  Mr. Doe never touched me in a sexual way.

Defendant Walters specifically inquired to Jeremy Moore if Jeremy had been made uncomfortable when John Doe put his arm over his shoulder in front of the dining hall and Jeremy told Mr. Walters that he felt there was no problem by that conduct.

Even though defendant Walters had actual knowledge of the fact that one of the young boys with whom John Doe was thought to have engaged in "inappropriate behavior" indeed felt that no inappropriate behavior had taken place and was not troubled in any way whatsoever by John Doe's attentions, Walters, nonetheless, participated in the meeting and decision which culminated in John Doe's ouster from the 1988 HHC session because of "inappropriate behavior, i.e. preoccupation with young boys" amounting to an allegation of sexual abuse of children.

Such conduct cannot seriously be considered good-faith conduct.  As in Miles v. Perry, the frailty of defendants' claims and the ease with which they could have ascertained the truth upon a good faith investigation, which was not done, warrants a finding that the defense of privilege does not save the defendants from their per se defamatory statements.
  

IV. Conclusion

For the reasons set forth herein, and in the papers submitted in support of plaintiff's Cross-Motion for Summary Judgment and in opposition to defendants' Motion for Summary Judgment, it is respectfully requested that the Court deny defendants motion for summary judgment, grant summary judgment finding that plaintiff has sufficiently alleged slander per se in counts I through III of the Amended Complaint, and libel per se in count IV of the Amended Complaint.  The only issue then to be decided by a jury is the amount of general damages to be awarded to plaintiff.

Dated: New York, New York
July, 1989

THE PLAINTIFF

By Eliot R. Clauss, Esq.

Affidavit of Ralph Underwager, Ph.D.

Partial Transcript of Hearing

* Ralph Underwager is a licensed consulting psychologist and Hollida Wakefield is a licensed psychologist at the Institute for Psychological Therapies, 5263 130th Street East, Northfield, MN 55057.  Eliot Clauss is an Attorney at Law practicing with the firm of Peltz, Walker, & Dubinsky at 291 Broadway, 13th Floor, New York, NY 10017.  [Back]

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