If a defamatory statement is published and the defamed person sues the person making the statement or claim for making a false and defamatory statement, who has the burden of proof, the plaintiff or defendant?

For example, a woman tells a newspaper reporter that a businessman, who is not a public figure, raped her and the newspaper publishes this claim. The businessman sues the woman for defamation. Does the woman have to prove that the man raped her, or does the plaintiff, the businessman have to prove that he did not rape her?

3 Answers 3


The burden of proof is always on the plaintiff (except for counterclaims brought by the defendant against the plaintiff).

In your example, the businessman has to prove that he did not rape her.

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    But of course he need not prove it beyond a reasonable doubt.
    – phoog
    Nov 10, 2017 at 18:03
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    @Cicero There is nothing special about defamation. The burden of proof is the same for every plaintiff on every cause of action. For example, you will not have legal liability for running someone over with your car if no one can prove you did it.
    – ohwilleke
    Nov 10, 2017 at 19:13
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    @Cicero Perhaps a better analogy might be breach of fiduciary duty due to failure to account. If you are given $100,000 to hold in trust, and there is only $30,000 left some time later, you are guilty of civil theft for every dollar that you can't affirmative prove was used for a proper purpose, even if the money was actually properly spent for a proper purpose and only your record keeping was at fault.
    – ohwilleke
    Nov 10, 2017 at 20:26
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    The burden of proof is not always on the plaintiff. In libel cases, the burden of proof is on the defendant to show that their statement at issue in the case is actually true and not false. However, when the plaintiff is a public figure or the topic of hte statements is a matter of public concern, then it is on the plaintiff to prove that the statement is false.
    – A.fm.
    Dec 11, 2017 at 0:14
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    @IñakiViggers The way you use the word "proof" is not what it means in a legal context. Testimony under oath is proof. If he says "I did not rape her" under oath, he has met his prima facie burden of production because his sworn testimony is proof. There are many ways that a party's credibility can be increased or decreased, such as testimony regarding whether they were in the same place at the same time where this could have happened and corroboration in the form of what was said to people contemporaneously. Also, the fact that something is hard to prove doesn't mean that it isn't the law.
    – ohwilleke
    Jun 7, 2018 at 15:11

If the defamer/woman pleads the affirmative defense of truth, then she brings the burden of proof upon herself. At some point she will have to clarify whether she accused him or not. If she denies it, she might not withstand the reporter's testimony: that will be detrimental to the woman's credibility. If she insists (in court) on her false accusation, then that is somewhat equivalent as if she pleaded the affirmative defense of truth (with the implications on her burden of proof).

Also, the plaintiff businessman may send discovery requests (mostly in regard to the alleged rape) that the defendant woman will be unable to meet. A deposition -or testimony under oath- of the woman and of non-parties usually unveils inconsistencies by the woman, which brings us back to issues of her credibility.

It is possible that the woman could be coached by her lawyer and come prepared with attorney-crafted answers for deposition/trial (attorney-crafted testimony happens more often than people imagine). Hence the importance of follow-up questions: a lawyer can anticipate only so much what these follow-questions will be, and there's where the defamer is prone to fall in contradictions or inconsistent testimony.

  • I'm confused by this answer (which also seems to contradict ohwilleke's.) Is "truth" really an affirmative defense in a defamation case? If the elements required to prove defamation are: "1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages" [law.cornell.edu/wex/defamation - emphasis mine] then doesn't a defense of "truth" amount to the same thing as arguing that the plaintiff failed to prove the required element that the allegedly defamatory statement was false? Jun 2, 2022 at 21:21
  • @TimGoodman "Is "truth" really an affirmative defense in a defamation case?" Yes. See Thibodeaux v. Starx Investment Holdings, Inc. (TX COA, Oct. 2021) ("In defamation suits brought by private individuals, truth is an affirmative defense", collecting cases).Similarly Page v. Oath Inc, (Delaware SC, Jan 2022). Page cites a SCOTUS decision stating that the exception is where the defendant is a media source. But the OP's premise is that the defendant is the woman, not the newspaper. Jun 2, 2022 at 23:44
  • @TimGoodman "doesn't a defense of "truth" amount to the same thing as arguing that the plaintiff failed to prove" No. That defendant's conclusion is premature at the time of pleading defenses. Instead, the defense only posits that the plaintiff cannot (i.e., will be unable to) prove the requisite element(s). Rasheed v. Chrysler Corp., 455 Mich. 109,132 (1994) mentions "the law of affirmative defenses, which places the burdens of pleading and proof on the party raising them. An affirmative defense presumes liability by definition." Jun 2, 2022 at 23:51

Typically, in these cases, the Businessman would sue the paper, not the woman (if for no other reason than the former has the money, the later does not.).

If the paper says "OP accuses Mr. Businessman of Rape" in it's headline, there is no false statement. The Original Poster did in fact accuse Mr. Businessman of rape. There is no getting around that. As long as the newspaper only refers to the accusation as alleged (the alleged crime, the alleged rapist) there is no false statement, as at this point, Mr. Businessman is accused of a crime.

If you have gone to the police and accused Mr. Businessman of the crime, then Mr. Businessman's defamation suit is meaningless, as it's implied that going to the police implies you believe it happened (no reasonable person assumes you do not believe these accusations you have levied.).

If you say to the press "I believe Mr. Businessman raped me." but do not press charges, that is also not a lie. You can believe whatever you want.

Any accusation made in good faith is not a lie. Any belief of an event happening without evidence that the event occurred is not a lie, it's what you believe.

However, if you say "Mr. Businessman raped me" even though you know he did not and Mr. Businessman can sue you for defamation which will likely impose some court order barring you from spreading that lie in the damages. If this happens, your ability to say "Mr. Businessman raped me" is not something you have to answer for. The burden of proof is on Mr. Businessman. Part of that proof is saying that the charges are false.

However, what you are doing is charging Mr. Businessman with a crime. At that point, the burden of proof is on you to produce evidence to back up your claim. Until Mr. Businessman is accused in a court of law, he is innocent. In effect the suit is forcing your hand and demanding you produce your evidence while Mr. Businessman is refuting your claim.

If Mr. Businessman was someone who would be known to the larger community OR was a celebrity or a politician or otherwise immediately recognizable, then you might have an out, as Mr. Businessman has to prove you have malice in this accusation (P.S. Comments like "OK, so I am fine defaming people so long as there is no way to verify whether the alleged acts happened or not." in comments elsewhere on this thread would make Mr. Businessman's legal team salivate as it could prove malice if found).

However, if Mr. Businessman was not a public individual (i.e. most people wouldn't know who he was until the news reported your accusation) then malice isn't required to prove (or you could say it has been because you put the public spotlight on him by this accusation, immediately giving him a reputation for something he did not do). Famous people have to meet that burden of proof because there are accusations made against them that are not true all the time and not always for actual crimes (Ted Cruz was accused of being the Zodiac Killer during the election (mostly as humor). Despite the fact that Cruz was born over a year after the first Zodiac Killer murder, 10% of Americans believed this statement to be true when polled. Needless to say it could have hurt his election, but it was intended as good clean fun.).

This assumes that you did not file a police complaint. If you had, and they determine you lied to them, you can get some criminal charges filed against you (waiting police time/resources or filing a false complaint... depending on what the statute is called in your jurisdiction.)

If you are bent on ruining Mr. Businessman's life with a false accusation of rape, DO NOT DO IT. For starters, if you lose the defamation case, you have made the wall that much higher for anyone who in good faith makes the accusation, as they will be seen as liars like you. After all, Mr. Businessman could still be raping someone else. It does her no good if you lie, because now his lawyers will use that against his real victim.

If you don't care about potential real victims of Mr. Businessman, consider your own potential safety. If you make a false accusation to ruin someone's life, and then actually have to accuse someone of rape in good faith (God forbid) you have handed that new defendant's lawyer a great tool against you. The defamation trial will come up, and, even if you won that case, it can still be used to prove a pattern of accusing people you don't like of terrible crimes and offering weak proof. You can only cry wolf so many times before the town believes that there is no wolf.

If the story has not gone to print yet, I urge you to retract it ASAP. Better your journalist friend be mad at you than the potential legal nightmare you are about to craft. If it has (and if Mr. Businessman has had you served) better start looking for a lawyer.

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    I'm NOT the one who voted down @hszmv 's answer, but he states several inaccuracies about the law. Other than that, I applaud his moral. Accusations with the police are absolutely privileged. Courts are clear in that prefixing falsehoods with expressions such as "I believe" do not automatically make them statements of opinion. The publisher is not always exempt of liability under the pretext that he can believe whatever he wants. To get an award of substantial damages (irrespective of special/specific damages), private plaintiffs still have to prove actual malice. Jun 7, 2018 at 12:03
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    @IñakiViggers Accusations made to the police have a qualified privilege, not an absolute one, intentional misstatements made to police out of malice are still actionable. And, actual malice goes to liability not damages.
    – ohwilleke
    Jun 7, 2018 at 15:12
  • @ohwilleke Then privilege depends on the jurisdiction. Unfortunately, Michigan non-sense courts have it that "information given to police officers regarding criminal activity is absolutely privileged", Hall v. Pizza Hut of America, Inc., 153 Mich.App. 609, 619; 396 N.W.2d 809 (1986) (citing Shinglemeyer v. Wright, 124 Mich. 230, 239-240 (1900)). Actual malice can be relevant to liability and damages: actual malice (1) strikes qualified privilege, and (2) needs to be proved for recovery of substantial and/or punitive damages even where the defamatory falsehoods are not privileged at all. Jun 8, 2018 at 11:27
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    @IñakiViggers The case cited, while referring to a 1900 case asserting that there is an absolute privilege, casts doubt on the validity of the cited case and holds only that there is at least a qualified privilege. "In the case at bar, it is clear that Debbie Nichols's communication *620 to the police enjoyed at least a qualified privilege." But, this is enough because there is no evidence of bad faith or actual malice.
    – ohwilleke
    Jun 11, 2018 at 13:15

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