A Threat or a Promise? McBerry's Libel Claims
Recently the word "libel" has been thrown around a lot in the Georgia blogosophere in connection with one fringe gubernatorial candidate who allegedly had a past predilection for the young ladies. Very young ladies.
Ray McBerry was a teacher in the late 1990's when he got to know a student at his school fairly well. She moved on to a different high school, and to hear her and her parents tell it, she began a romantic relationship with McBerry that led to him leaving teaching and having a judge order him to stay away from the girl. To hear him tell it, he was just counseling the girl after her parents made her end an interracial relationship, and her parents got the wrong idea and now they are all defaming* him all over Georgia.
Meanwhile, a few weeks before the girl and her parents' story hit the pages of "respectable" media, the SWGA Politics blog threw its skirt over its head and called McBerry a child molester. When informed that the law in Georgia does not apply to victims over the age of 16, and that this girl was 16 when the alleged sexual contact began, the blogger in question basically said he didn't care because McBerry was a teacher and teacher-student sex is still some form of crime, even if not meeting the legal elements of child molestation. (Side note: it's unclear whether this is even accurate, since the girl claimed the sexual contact only occurred once McBerry was no longer her teacher, as she had moved to a different school.)
McBerry threw a hissy fit of his own the other day, and started making threats of litigation against online outlets and individuals. Some wondered if one target for a libel suit might be SWGA Politics itself. But despite all his bluster, I would bet a cool Benjamin that McBerry never files any sort of defamation lawsuit against anyone. Why?
1) Defamation suits are expensive, time-consuming, and generally not taken on contingency by the attorneys who file them. This means McBerry would probably have to pay a lawyer by the hour to file the lawsuit, unless he intended to proceed pro se (in which case he might as well not even bother). McBerry hasn't exactly been lighting up the fundraising in his gubernatorial race, and I don't think he's rolling in the dough personally either. Even litigating on the cheap is likely to cost upwards of $25K to take such a case to trial, which brings us to the next problem...
2) The targets of such a suit, for the most part, are judgment-proof or close to it. What assets do either the girl and her family, or the proprietors of SWGA Politics, really have to satisfy any judgment rendered against them? Lawyers are especially wary of taking such cases on contingency when they strongly suspect at most their clients will obtain a moral victory, but no real cash. Why spend $25K to win an apology and a judgment that allows you to garnish someone's wages until the end of time? Now, any media outlets that report the allegedly defamatory statements could also be sued, and would not be judgment proof by any means, but the standards for a libel suit against a newspaper are higher and they have more defenses. They also have more and better lawyers who have defended cases like this before. Does McBerry want to take on the AJC and the big firms that represent it? I doubt it.
3) Truth is a defense in defamation cases. I make no allegations about McBerry's veracity or the propriety of his past behavior. (See, I know how to stay on the good side of the defamation line!) But if the girl and her family have evidence to support their allegations, which it sounds like they might based upon the apology letter they have already produced, then they could defeat any defamation action simply by showing that McBerry really did the things they claimed he did. Even if they don't have evidence, if a jury were to determine that the girl and her parents were telling the truth, McBerry would lose. And on the way to presenting evidence of truth or falsity to a jury, the parties would have to engage in embarassing discovery in the form of depositions of those McBerry or the girl talked to about their relationship, people who may have found them in compromising positions, etc. Not exactly the sort of character evidence an aspiring politician wants to see put down on the public record, even if he did eventually prevail at trial.
4) Potentially, McBerry would have to show "actual malice"--knowledge the story is false, or reckless disregard for its truth or falsity--in order to prevail. There is little law out there on the question of whether blogs enjoy the same first amendment protections as "traditional press" like newspapers in defamation cases, so this one is sort of a guess. The Supreme Court famously ruled in New York Times v. Sullivan that in order for a newspaper to have libeled a public figure, it must have shown actual malice--meaning either the newspaper knew a published statement was untrue or showed a reckless disregard for its truth or falsity. McBerry is arguably a public figure by virtue of qualifying as a candidate for Governor. The question is whether the blogs that published this story showed reckless disregard for the truth of the story or knew it was false. Now, as discussed briefly above, if the story is true then McBerry has no case. And if the bloggers who published the allegedly defamatory statements are protected by Sullivan to the same extent the AJC and other traditional media outlets are protected, then McBerry would need to prove that they showed a willful disregard for the truth of this story, which is a high burden and highly subjective because it relies upon the knowledge and intentions of the publisher of the libel.
I could write an entire series of posts on whether Sullivan applies to bloggers, and whether it should, but that is a post for another day when I have more free time. For now, if we assume it applies, then it makes a tough case to prove nearly impossible.
And that, my 3 readers, is why Ray McBerry's threats to sue will never be more than threats.
* I prefer to use the term "defamation" to cover both libel and slander, because people often erroneously use the two terms interchangeably and having one term that covers both is less confusing. Generally speaking, libel is written while slander is spoken, though the expanding definition of publication has led to libel also governing internet postings and TV/radio broadcasts. In the instant situation, the news stories containing the statements of the girl and parents about McBerry would be governed by libel laws, while the girl and her parents' actual spoken statements about McBerry would be governed by slander laws. However, because this gets confusing in a situation where slander is published in a potentially libelous news story, I'll just use defamation for both. The only real differences are that libel requires "publication" of the defamatory statement, slander requires actual damage to reputation through the spoken defamation, and there are some libel protections for press reports involving public figures as described above.
20 comments:
I kind of want him to sue so we can hear his "I'm technically not a child molestor she was 16" defense.
What's the only thing funnier than McBerry as a gubernatorial candidate? McBerry representing himself in a defamation suit.
Please let this happen. I need this.
(Also, yeah, please write the Sullivan/bloggers post sometime. That would be interesting.)
Now which would have been more awesome--McBerry's pro se defamation trial, or Andre Walker running for Ag Commissioner?
Tossup, for me.
You're like CBS news, asking the tough questions. I'd say McBerry, because the awesome would be more compressed into a shorter time period, whereas with Andre, it would just be less consistent, but longer, hilarity.
Yeah.
First, it's not child molestation. It's not even statutory rape.
Second, sex between a teacher and student is legal, as long as it is consensual. See recent SCOGA decision; however, the Georgia Legislature might have closed the "loophole" this session.
At the time of the infraction, ANY sexual contact between a student and a teacher was illegal, PERIOD. Consent was NOT allowed as a defense, as the law was then understood - it would be 6 yrs later before SCOGA said that it is, in fact, a valid defense.
Furthermore, while the age of consent for sex is 16, the age of adulthood for most other things is still 18, and therefore Rachel was legally a child at the time. Thus, while the the exact legal term may not be a perfect fit, the more colloquial understanding of the term most certainly does.
But like you say, this is a moot point anyway.
1) You can't get around the fact that the victim was over the age limit for child molestation by saying she was legally a child in other senses. And technically you are wrong anyhow--she was a minor by virtue of being under 18, but not a child. So at most you could say he committed "minor molestation," and even then "molestation" necessarily implies an inability to consent or stop the sexual contact...which is not applicable when the victim is over the age of legal consent.
2) Here is the Georgia Supreme Court case that Jen referenced: http://www.gasupreme.us/sc-op/pdf/s09g0139.pdf
The ruling is that a teacher accused of the crime of having sex with his student must be allowed to present evidence of consent as a defense. If the sex was consensual, which McBerry's alleged victim says quite clearly that it was, then it was not a crime even under the GA law prohibiting sex between teachers and students. Any subsequent closing of the consent loophole would not apply retroactively to behavior like McBerry's before the closing of the loophole.
And just because I think this might be misunderstood...the Chase decision linked to above does apply retroactively, so regardless of what the statute said at the time about evidence of consent, this is the rule.
Is the Chase decision on page 10 with the example of the law school professor and student saying that 'school' in 16-6-5.1(b) also includes adult education? Has that been adjudicated?
I no comprende your question. Sorry.
I believe his/her question is how school is defined by the statute, meaning does it also prohibit professors from sleeping with students or just high school teachers?
OCGA 16-6-5.1 says this in (c)(1): "A person commits sexual assault when such person has supervisory or disciplinary authority over another person and such person engages in sexual contact with that other person who is: (A) In the custody of law; or (B) Detained in or is a patient in a hospital or other institution."
I'm not sure whether this code section has been litigated as to whether that includes colleges. There's certainly an argument that professors don't have supervisory or real disciplinary authority over their students.
rusty- i think it would be even better if he made that his campaign slogan:
vote mcberry-technically he's not a child molester
Yeah, sorry. Using your site for procrastinating doesn't help with the clarity. But, Jen has the right of it: I'm wondering if 'school' in that portion of the code section meant to criminalize teacher-student relationships in primary and secondary education 16-6-5.1(b) also applies to adult education:
(b) A probation or parole officer or other custodian or supervisor of another person referred to in this Code section commits sexual assault when he or she engages in sexual contact with another person who is a probationer or parolee under the supervision of said probation or parole officer or who is in the custody of law or who is enrolled in a school or who is detained in or is a patient in a hospital or other institution and such actor has supervisory or disciplinary authority over such other person"
In the Chase ruling linked to earlier, the majority argues not allowing consent as a defense to "the charge of sexual assault of a person enrolled in school" means age has no effect "on whether a crime has been committed." The majority then argues, if consent is not a defense, that a "fully consensual sexual encounter" between a "30-year-old law school professor" and a "50-year-old law school student" is a criminal act, and the professor "would be guilty of a felony."
If this is "precisely what the statute would mean were we to accept the reading adopted by the trial court and the Court of Appeals," according to the majority ruling, then this argument, even as a reductio, requires the accepted premise "A law school is included in the definition of 'school' in 16-6-5.1(b)." It needs this premise in order to motivate the argument that the readings of the law by the lower courts is what leads to the absurdity, but it also needs that premise to not itself be absurd or incorrect; otherwise, the inconsistency of all the legal claims won't attach specifically to the argued incorrect claim of the lower courts that consent is not a defense.
The dissenting argument (see page 6 of the dissent, page 17 of the pdf) does not challenge the hypothetical's premise that law schools are included in the understanding of 'school'. It actually goes further and provides support that this is an acceptable reading:
That result is not made any less disturbing by the majority’s hypothetical application of the statute to a consensual sexual encounter between a 30-year-old law professor and a 50-year-old student. Even that age difference does not eliminate a student’s vulnerability to exploitation by a person having supervisory or disciplinary authority over such student.
In other words, the dissent's argument just accepts that professors, regardless of age for either participant, have "supervisory or disciplinary authority" over "such a student" (meaning, "such as a 50-year-old"). The majority's argument, from the way it is put forward, suggests this is also the case (adult professors have supervisory or disciplinary authority over adult students), but consent should be a defense in such situations in order to avoid the "truly absurd and unjust" result of holding the younger professor guilty of a felony punishable by 10-30 years of prison. So, it's not absurd and unjust that professors are also considered to have supervisory or disciplinary authority over their students, but absurd and unjust we'd ignore consent in such relationships between adults.
I'm not sure if I'm making myself clear, but I hope writing more has helped. I know probably all colleges and universities at this point handle this by making it policy for instructors to not have any sexual or romantic relationships with students (with exceptions for already-married relationships); I was wondering if the ruling in Chase was making it clear that the door had been open for such relationships to be prosecuted as felonies. (If there's no consent, then other laws obviously apply.) The other subsections of 16-6-5.1 appear to criminalize the sex according to the power dynamics, so this is about exploitation, not so much age. And under such power dynamics, consent is problematic due to the exploitation, which is why it's explicitly removed as an option (according to the majority ruling) in the other subsections.
I understand what you are saying now. I think there would be other problems with criminalizing a consensual sexual relationship between adult professor and adult student because of the power dynamics (cruel and unusual punishment issues, for one) and I also don't think the statute would ever be used that way. But I can see why the majority decided consent had to remain a necessary defense to the crime even after the legislature tried to do away with it, because otherwise the justification for criminalizing the behavior is really flimsy. Let's face it--a teacher fucking a consenting student over the age of 16 is icky on a lot of levels, and should certainly get their teaching license revoked, but it's probably not something that should rise to the level of a crime. And if the student is under 16 or did not consent to the contact, then there are other crimes that apply whether it's a teacher-student relationship or not.
Also, I think one distinction is that in other contexts, elementary, middle and high school has been held to have a custodial aspect to it, whereas college does not. When you are a student in high school, you are not supposed to leave campus or even leave your classroom without a teacher's permission. There is a responsibility there for the school and teachers to protect and police their students that just isn't the same once those students are adults.
That might be a distinction that would, as Jen suggests, remove college professor/student relationships from the disciplinary or supervisory role that is necessary for the conduct to be criminal under the statute.
But then why would the majority use that situation in its argument, specifically to show how not accepting consent leads to potentially absurd and unjust prosecutions? It seems to me if the hypothetical was very out-there, the dissent's defeater for that argument is very clear: what the majority suggests is a potential absurd and unjust situation would never happen in the first place at all, since it could not be prosecuted through that code section. But the dissent, instead, accepts all of the premises of the prof-student situation and suggests such relationships in some measure ought to be recognized as criminal due to the exploitative nature. The majority's argument reads, to this non-lawyer, as arguing not that the relationship of prof-student is non-criminal, but instead that the consent of the student is a defense to the charge. As I understand the idea of having an affirmative defense, it's still a criminal act generally, but in the specific situation a judge or jury can consider the consent in determining guilt.
Philosophy is my thing, not law, so I'm open to being completely wrong on this!
I didn't say it was out there, just that I think that situation is an unlikely prosecution because a DA would have to think it's a) a stupid thing to try and criminalize and b) one where the defense will have some strong arguments.
The majority uses the example to demonstrate the absurdity that the statute's "consent is not a defense" position could theoretically lead to. It doesn't meant they think that situation would ever really come to pass. It's a way to show a statute is legally overbroad.
"The majority's argument reads, to this non-lawyer, as arguing not that the relationship of prof-student is non-criminal, but instead that the consent of the student is a defense to the charge. As I understand the idea of having an affirmative defense, it's still a criminal act generally, but in the specific situation a judge or jury can consider the consent in determining guilt."
I think this is exactly right, but I would quibble with the word "consider." Consider implies that the judge or jury has a choice in whether to take consent into account. The law requires a directed verdict or acquittal if the relationship was shown to be consensual. The recent Cobb County case is a great example.
By the way, I checked the annotations to 16-6-5.1 and there weren't any post-secondary education cases.
Ah, I'm not clear on the terminology, but that's the sense I mean: it has to be shown there was consent, and that's the "consideration" occurring during the trial. Thanks for the clarification, both!
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