Gendered SLAPPs: Addressing criminal prosecutions against exposers of sexual and gender-based violence under international human rights law

If the emergence of the #MeToo movement led on the one hand to the exposure of perpetrators of sexual violence across a vast range of industries and national contexts and to a raised awareness of public interest implication of sexual and gender-based violence, on the other it also marked the surge of a trend of alleged perpetrators increasingly weaponising the legal system to silence victims and advocates.

Within the broader SLAPP phenomenon, in fact, the authors note a heightened prominence of a specific manifestation of gendered SLAPP as a form of retaliation against the exposure of cases of sexual and gender-based violence, often through criminal defamation proceedings.  Their distinctive implications, compared to civil proceedings, tend to go unaddressed, resulting in a subsequent lack of both an «evidence base» and «suitable policy responses». Nevertheless, the authors of the paper recognise the presence of international frameworks as well as their potential to ensure access to justice.

Starting from the assumption of a systemic failure of the criminal justice system to properly respond to sexual and gender-based violence – underreporting due to, on the one hand, fear of retaliation, victim-blaming, shame, distrust of the police in terms of effectiveness, disposition, as well as treatment, and, on the other hand, to the reiterated trauma of extenuating adversarial proceedings  –, the authors pinpoint the crucial role of a «continued prevalence of patriarchal cultural norms» that permeates law enforcement as well.

The rise of the #MeToo movement is briefly explored, with a short mention of the backlashes it faced, to then move on to the specific three-part approach synthetised as Deny, Attack, Reverse Victim and Offender in the acronym DARVO. Those distortive, confrontational strategies exploit the self-blame of the victim while reversing the roles through the framing of the allegations as fabricated, which results in gendered SLAPPs that suppress survivor voices. In relation to this, is it worth reporting frequent police doubt towards survivors, leading to under-investigation, coerced retraction, as well as false reporting charges, despite a significantly low incidence of false sexual and gender-based violence (SGBV) claims – 2% to 10%.

The authors then focus on the more specific issue of private criminal prosecutions, recalling common features of criminal SLAPPs, particularly in presence of tightened legislation on libel, defamation, or insults, with criminal defamation laws still in force in at least 80% of countries worldwide.

Although criminal SLAPPs are barely observed «through a gendered lens», the resulting weaponisation of legal mechanisms in the cases in analysis is not only harmful to survivors as it exacerbates their trauma while hindering any perspective of accountability from perpetrators, yet also to «a wider circle of activists, organizations, or journalists advocating for gender equality, women’s rights, and the prevention of SGBV», in front of a prioritised maintenance of the status quo.

The authors then analyse the growing resort to private criminal prosecutions as a SLAPP tactic, employing global case studies involving allegations of criminal defamation, insult, as well as privacy legislation.In this context, it is highlighted how defamation laws count among the most common grounds to raise SLAPPs, not only in civil complaints, yet also as criminal charges, which allows plaintiffs to further retaliate against accusers, although the 2021 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression clarified criminal law is meant for «exceptional [...] circumstances of incitement to violence, hatred or discrimination», while criminal libel laws should be repealed as extraneous to democratic societies.

In relation to private criminal defamation, the authors recalled the case of Indian journalist Priya Ramani, who endured two years of a criminal defamation trial for denouncing an incident of inappropriate behaviour from senior journalist and Minister of State for External Affairs of India MJ Akbar under #MeToo before the court acquitted her, recognising her claims as true, affirming the right to dignity over reputation. A second case is that of Lesbia Pacheco and Gladys Lanza Ochoa in Honduras, stemming from the failed trial of Pacheco against her supervisor and public official Juan Carlos Reyes for «repeated sexual harassment and retaliation in the workplace for rebuffing [his sexual advances]», which resulted in a retaliatory criminal complaint against both Pacheco and human rights defender Lanza – who advocated on her behalf – concluded in the conviction of both the honduran feminist activist, who ultimately passed away in prison while in appeal, and Pacheco.

As for privacy, pertaining laws are also abused to obscure SGBV as well as other misconducts,  revealing a gendered aspect to the balance between the right to privacy and freedom as the privacy of the offender is prioritised against the right of the victim to call out misconduct. The case brought is that of academics Syksy Räsänen and Till Sawala, charged with aggravated defamation as well as with aggravated dissemination of information that violated the privacy of a fellow academic Christian Ott who committed gender-based harassment in his previous position, in response of a campaign the two academics led against their university hiring Ott. The pertaining Finnish court ended up acquitting Räsänen and Sawala, stating their efforts to systematically expose harassment and discrimination were lawful and in the public interest.

The paper moves to then assess the theme of gendered SLAPP through the perspective of international human rights law, particularly in cases regarding sexual and gender-based violence against women, exploring the normative framework set out in International Covenant on Civil and Political Rights, Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights in terms of restrictions of the right to freedom of expression. More specifically, the paper traces an overview of the evolution of international legal standards on SGBV in particular relation with the Convention for the Elimination of all Forms of Discrimination against Women. Its 1992 general recommendation 19 notably deems failure to prosecute SGVB from private actors as State complicity, while 2015 general recommendation 33 provided comprehensive guidance on access to justice, pinpointing the obstructing role of discriminatory laws as well as institutional biases, that accounted for a secondary victimisation of women from the part of the criminal justice system on itself. 

In terms of freedom of expression, the authors recall its lawful restriction as specified in the ICCPR – exclusively permissible when both provided by law and enacted in response to legitimate state interest, whether for national security protection or for the respect of the rights or reputations of others, always bound to be lawful, necessary proportionate. However, the paper also highlights that vague defamation or privacy laws tend to fail to meet those standards, thus enabling disproportionate restrictions on freedom of expression as well as the gendered SLAPPs the paper is centred on, while a lagging decriminalisation of defamation contradicts the principle of proportionality. In this context, gendered SLAPPs represent a means of silencing advocacy work, preventing women from accessing information from public authorities and censoring legitimate speech, in violation with relevant provisions of ICCPR and CEDAW. However, as stated in the 2021 report to the UN General Assembly from Special Rapporteur Khan, States have an obligation to «proactively remove structural and systemic barriers to equality» preventing women from full enjoyment of freedom of opinion and expression, deeming «acts and threats of physical, sexual and psychological violence to silence women and gender nonconforming people [as] the most extreme manifestations of gendered censorship».

In the last section, the authors suggest a potential course of action for reforming the legislative framework regulating mechanisms for SGBV protection in order to avert their improper use as tools for harassment against gender equality advocates – be it activists or survivors – or as an enabling base for abusive criminal prosecutions against victims legitimately exercising their own rights.

The fundamental objective is to pursue through an integrated strategy that puts in place apt legal protections in terms of early dismissal mechanisms for gendered SLAPPs – i.e. labeling a defamation lawsuit from a perpetrator as DARVO, establishing provisions for early case dismissal when proceedings prove to be groundless, vexatious, frivolous, excessive or unreasonable in procedural use –, complementary cost protection measures for defendants – from legal aid to psychological support, to support from organisations or advocacy groups, in alleviation of the multifaceted burden of facing a SLAPP –, as well as of development of proper anti-SLAPP legislation that is not disregarding of gender dynamics exacerbating vulnerability of women and gender minorities, nor of the intersectional nature of criminal SLAPPs.

As the authors critically point out, the existing legal framework is still often lacking, unapt to granting a sufficient level of protection to victims or advocates, a shortcoming in light of which it would be appropriate to categorise SGBV themes as protected topics of public interest in anti-SLAPP legislation, thus protecting related disclosures, testimonies, even when shared i.e. on social platforms. The inadequacy of current legal frameworks is also evident in a still underdeveloped research on criminal SLAPPs, whether in case law, policy responses, or in scholarly literature, yet it is critical to fill the gap through a human rights based, women-centered SLAPP reform to set the motion for countering the weaponisation of the criminal justice system to silence women that speak out. 

A SLAPP reform that is women-centred should therefore provide explicit protection on SGBV as a matter of public interest, ensuring that survivors dispose of swift remedies to rely on, discouraging disproportionate lawsuits, thus upholding the rights of women and gender minorities to speak out without fearing retaliation.