Following the #MeToo movement, experts noted an uptick in defamation lawsuits against accusers. These lawsuits are typically brought by the accused and seem aimed at rehabilitating their reputations and, some would say, silencing the victims.

Legislators in California are working to counteract these suits. First, some historical context. In 2017, Pamela Lopez, a California lobbyist, accused state lawmaker Matt Dababneh of assaulting her the year before, claiming that he pushed her into a bathroom, masturbated in front of her and encouraged her to touch him. The ensuing investigation found Lopez's claims to be credible and Dababneh resigned from his position, but he also sued Lopez for defamation related to her complaint and ensuing comments she made to the press. Although Lopez ultimately won her case, with the judge finding that her speech was privileged, it took a number of years--and included the initial denial in part of Lopez's Anti-SLAPP motion and subsequent appeal. This incident was one of a relatively large number of resignations by lawmakers in multiple states following the #MeToo movement.

Enter California's Assembly Bill 933, sponsored by Assemblymembers Cecilia Aguiar-Curry (D-Winters) and Chris Ward (D-San Diego), which seeks to strengthen the legal protection for victims who face retaliatory defamation lawsuits after speaking publicly about sexual assaults. Mechanically, the bill would amend Section 47 of the California Civil Code, which is the legislative section that outlines California's defamation privileges, which function as defenses to a defamation suit. This Section and the protections it offers featured in Lopez’s case.  As noted, Lopez filed an Anti-SLAPP motion that relied on certain of these privileges--specifically that the statements were made as part of a legislative proceeding (Section 47(b)) or as a "fair and true” report of a legislative proceeding (Section 47(d))--but that motion was denied by the trial court as it related to statements Lopez made to the press following the filing of her complaint to the Assembly rather in that complaint itself. On appeal, the appellate court agreed with the trial court that the statements were not protected by the legislative proceeding privilege, as they did nothing to further the legislative process, but did qualify for the fair and true report privilege, and thus reversed and remanded. That decision, however, came in 2021, many years after the suit was filed.

Assembly Bill 933 would expand Section 47 and offer a clearer defense to plaintiffs like Lopez, creating a separate privilege for "[a] communication made by an individual, without malice, regarding an incident of sexual assault, harassment, or discrimination," whether or not it meets the qualifications for the existing privileges.  As the bill is written, the protection applies to a person who has a "reasonable basis" to file a complaint for sexual assault, harassment or discrimination, even if no case has been filed, as long as the statements are not knowingly false or made recklessly. It would also allow for the recovery of attorney’s fees and treble damages by a successful plaintiff, in addition to existing relief. The bill passed the Assembly with bipartisan support yesterday, but must still pass in the Senate and be signed by Governor Gavin Newsom.

Illinois has a similar bill in the works, but it hasn't yet been put up for a vote. New York has also strengthened some of its protections, both in case law and by temporarily reopening the statute of limitations for adult victims of sexual assault, of which E. Jean Carroll's lawsuit against Donald Trump was a beneficiary.