In Chrismy Sagaille v. Christina Carrega et al, 2021 NY Slip Op 01369 (NY App. Div. 1st Dept. March 9, 2021), the Court reversed the lower court’s order denying defendant’s motion to dismiss plaintiff’s claims for libel per se and defamation against defendant defendant, based on statements she made to the NYPD.
Ultimately, the court’s decision (discussed below) underscores and embraces the common-sense need to protect sexual assault victims against further trauma in the form of retaliatory defamation lawsuits:
Amici cite data showing the disquieting prevalence of sexual assaults. The CDC estimates that in the U.S., 1 in 5 women and 1 in 14 men are raped during their lifetime; in addition, more than two in five women and one in four men suffer other forms of sexual assault during their lifetime.
And yet, sexual assaults remain vastly underreported, primarily due to victims’ fear of retaliation.[] It does not escape us that defamation suits like the instant one may constitute a form of retaliation against those with the courage to speak out; most victims cannot afford years of litigation, nor do they wish to have their personal information disclosed through invasive discovery or to relive their personal trauma through litigation, including depositions, filings, and testimony in court. They do not wish to endure continued unwanted interaction with the person alleged to have assaulted them through the litigation process.
The lower court’s holding has the effect of dissuading a victim from seeking an order of protection since the sexual assault victim must file a police report in order to obtain an order of protection. It has the effect of emboldening sexual assaulters who seek to weaponize the legal system in order to silence their victims.
In sum, and in pertinent part, the plaintiff (Chrismy Sagaille) sued (first-named) defendant Christina Carrega (a Daily News reporter who accused plaintiff for sexual assault). Here is the court’s summary of the facts and procedural posture:
Defendant met plaintiff, a former ADA in the sex crimes unit of the Brooklyn District Attorney’s Office on April 30, 2017, at the baby shower of a mutual friend. On May 1, 2017, defendant reported that plaintiff had sexually assaulted her while she was driving home. The initial criminal complaint, dated May 3, 2017, charged plaintiff with [*2]two counts of sexual abuse and one count of forcible touching. Defendant alleged that plaintiff “grabbed [her] face and placed [his] tongue into [her] mouth on two occasions, without [her] consent and grabbed [her] breast over [her] clothing without [her] consent.” Trial on the matter occurred on June 4 through June 13, 2008. A mistrial was declared on the fifth day of deliberations when the jurors announced that they were unable to reach a unanimous verdict. Thereafter, plaintiff agreed to an adjournment in contemplation of dismissal.
On May 1, 2018, shortly before the criminal trial was to commence, plaintiff filed this action against defendant and her employer, the Daily News, asserting claims for libel per se, defamation, injurious falsehood, and prima facie tort, alleging that she had lied to the police about the sexual assault. Plaintiff alleged that in making certain statements in the complaint, defendant had acted with actual malice. Plaintiff alleged, inter alia, that defendant, at the time a reporter for the Daily News, had reported the putative assault for the purpose of “further[ing] her career by creating a false sex crimes story against an assistant district attorney whose job it was to prosecute sex crimes.”
The lower court dismissed the complaint as against the Daily News and dismissed the injurious falsehood and prima facie tort claims against defendant. The court denied defendant’s motion to the extent it sought dismissal of plaintiff’s claims for libel per se and defamation of a public official. The lower court found that statements to the police were protected by a qualified privilege. The court nonetheless determined that plaintiff’s allegations were sufficient to overcome the privilege because actual malice could be inferred from the accusations of “reprehensible criminal conduct.”
The First Department now reverses, and dismisses plaintiff’s complaint.
The court’s opinion is instructive as to the application of the doctrine of “qualified immunity” in the context of a defamation claim.
It explained:
The doctrine of qualified immunity shields individuals who, like defendant, act “in the discharge of some public or private duty, legal or moral, or in the conduct of [her] own affairs, in a matter where h[er] interest is concerned” (Rosenberg v MetLife, Inc., 8 NY3d 359, 365 [2007] [internal quotation marks omitted]). To overcome the qualified privilege protecting defendant’s statements to the police, plaintiff was required to sufficiently allege that she published the statements with actual malice, i.e., that defendant “acted out of personal spite or ill will, with reckless disregard for the statement’s truth or falsity, or with a high degree belief that [her] statements were probably false”[.]
Here, the court held that the lower court erroneously “presumed actual malice from the ‘reprehensible’ nature of the allegedly false accusations of sexual assault against plaintiff”, noting that “[t]here is no authority … for the court’s sweeping proposition that it might infer actual malice based solely upon the nature of defendant’s complaint.”
The court continued:
Indeed, such a holding [*3]would effectively extinguish any burden on a defamation plaintiff asserting claims predicated on reports of sexual assault to law enforcement and enable the plaintiff to subvert the shield of qualified privilege that protects victims reporting sexual assault, an unacceptable result.
Plaintiff’s allegations fall short of alleging actual malice sufficient to overcome the qualified privilege attaching to defendant’s statements to the police. Even as alleged in the complaint, the statements are a straightforward rendition of the incident that defendant claims occurred during a car ride with plaintiff. There was nothing excessive or “vituperative” in the character of the reported statements that would support an inference of actual malice (Sborgi, 281 AD2d at 230 [internal quotation marks omitted]; see Hanlin v Sternlicht, 6 AD3d 334 [1st Dept 2004]). Indeed, it is difficult to see how defendant could have been more succinct or restrained in her description of the events while accomplishing her purpose: to report to the police that she had been the victim of sexual assault.
Plaintiff’s allegation that defendant lied “because she saw an opportunity to further her career by creating a false sex crimes story” is entirely lacking in factual basis, speculative, and similarly insufficient to overcome the qualified privilege (see e.g. Matter of Abbitt v Carrube, 159 AD3d 408 [1st Dept 2018]; Weitz v Bruderman, 14 AD3d 354 [1st Dept 2005] [the plaintiff’s conjecture that alleged statements were made because the defendant wanted the plaintiff’s job insufficient to show that the defendant bore him spite or ill will, much less to show that spite or ill will, as opposed to economic interests, were the motivation for the statements]).
Plaintiff’s allegations regarding the subsequent criminal proceedings and the reporting of same in the Daily News are not probative of whether defendant acted with malice at the relevant time, namely, when she went to NYPD[.]
As such, since plaintiff failed to allege facts sufficient to overcome qualified privilege attaching to defendant’s statements to the police, plaintiff’s claims for libel per se and defamation failed.