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This guy I was seeing, we'll call him A, is now accusing me of defamation of character. He and I ended our sexual relationship approximately 3 months ago. He was someone who had a girlfriend, and slept with multiple women on the side without his girlfriend knowing (I was one of these women). He and I were very close friends and I knew of his pattern with women.

Before I started my relationship with him, I was involved with another man (call him B) and after being raped by B, I engaged in activity I probably shouldn't have but did (i.e.: getting him fired from his job). Prior to A and I consummating our sexual relationship, he found out about the things I did to B. He still had no problem getting involved with me. After we were sexually involved, I spoke with A and confessed to all of the bad things I did to B, because I thought A was my friend and he would understand why I did all of these things. I told him about everything I did but we didn't talk about the rape, it was mostly just detailing the things that I did. I told him that doing those things to B made me feel better and I'm glad I did it because B deserved it (at the very least) in my opinion.

Later on, A admitted that because he was scared that I might do the same thing to him as I did to B (i.e.: get him fired from his job), he decided to voice record all the conversations we had, without my knowledge. We stopped seeing each other after a few weeks of that and it was mutual.

Recently I found out that someone sent his job a letter describing sexual assaults perpetrated by A. As a result he was fired from his $150k job. He told a friend who told me that he is suing me because he thinks I did this and he has evidence because of the voice recordings. I have no idea what kind of damages he is going for and I am very poor. I can't afford a lawyer and what's worse is that I haven't committed any of the acts he's accused me of, I haven't spoken to him in months.

I should mention that we are in NY so the law of one-party consent applies to him recording me. Does it seem like he has a substantial case against me? Is it possible that these voice recordings will substantiate his claims that I somehow got him fired?

  • We are from NY, however, A moved to the Netherlands for a job. He is currently living there but he is not a citizen. I think he might be on a work visa but I'm not sure. The only reason he moved to the Netherlands is because his job required him to move there only for a limited time and he will be moving back to the US in approx. 2 years (to work with the same company).. – user477465 Jan 14 '18 at 1:54
  • The crux of this is that he can persuasively show that you accused B of rape, which would be his evidence that it was you who accused A of rape. Then the question would be, would such recordings be admissible in a defamation trial (and would they be persuasive to a jury). Is that right? – user6726 Jan 14 '18 at 2:12
  • @user6726 Yes, you got it. But also, I'm not entirely sure how court proceedings work, if he sues me, would a jury necessarily be present? I don't know exactly which court cases or what type of court cases require a jury and which don't. When I asked the question I just meant in terms of how the judge would view the recordings and whether they're admissible and if they are admissible, what the judge would think about it. – user477465 Jan 14 '18 at 2:16
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    Your recorded confession that B was fired because of your actions in no way proves (on its own) that you were involved into getting A fired. He would need to show some evidence that you were somehow involved in sending the letter to his employer. Without that evidence, only a very biased judge/jury would be satisfied that it was you. – Greendrake Jan 14 '18 at 3:38
  • @Greendrake thank you! But I read somewhere that all he needs to show is that it is likely that I did what he says rather than definitely proving this. am I wrong? – user477465 Jan 14 '18 at 14:29
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It's a civil suit. There is a lower degree of evidence needed, but there is still evidence needed. If you were guilty, then it would be very, very simple to prove your guilt: Ask the company that fired him whether they fired him because you told them. If you went to court and asked for that, the court would surely ask the company for this evidence. And they have to either provide that evidence or say clearly that it wasn't you. Since you are not guilty (obviously assuming that is the case), you didn't tell the company, so they are not going to tell the court that you did, so this man will lose his case.

This voice recording, even if proven genuine, makes you look suspicious, but it is absolutely no evidence. There is no reason why his ex-girlfriend, or one of the multiple women he slept with, couldn't be the person who accused him. In addition, in your recording you admitted that you got a person fired by telling the truth about him. Assuming that this man didn't assault you, you would have done something different: Getting him fired by lying about him. There is no reason that you would get someone fired by lying about them after getting someone else fired by telling the truth about him. So there is no evidence really against you.

After reading comments: If the employer says that it wasn't you who got him fired (and in court, they have to say the truth, and they have no reason to lie to protect you), that would be a huge, huge blow to his case. He would have to convince the court not only that you got him fired, but that the company lied about it.

The rest of his evidence: He has no evidence that you ever told lies about a boyfriend to get him fired. He has evidence that you told the truth to get someone fired, which is entirely different. Plus there are lots of other women who had reason to dislike him. He's supposed to show that it's more than 50% likely that you did it. From the facts, I'd say 10% before the company's statement, and very little after their statement supporting you.

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    It is evidence. It is evidence that the person would and did make such that very accusation about a former lover, which does to the question of whether the defendant did the act in question. If the defendant didn't do the act, then anything else is irrelevant. But is it admissible as evidence? And supposing it is admissible, would the evidence – along with all of the other evidence pertaining to the who-dunnit question – be strong enough to constitute the required degree of proof ("more likely than not")? – user6726 Jan 14 '18 at 18:42
  • Thank you both. So what I'm understanding is that if I did do this (and there is proof from the employer that it was me who contacted them) then these voice recordings are relevant and would be used. However, if the employer said I did not contact them and there is no link between me and his job then the recordings would be dismissed, am I understanding your explanation? @user6726 – user477465 Jan 14 '18 at 20:38
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    I'm saying that the recordings could have a role in deciding the matter, if it is allowed under US law. There are rules of evidence in the US governing what can be admitted as evidence, so we have to determine whether it is admissible. If it is, the second question is, would a judge or jury be persuaded. I don't do evidence, so I have no opinion. I would like to think that it would not be admissible, but I'd also like to think that there is no such thing as an "adoptive admission" where silence is evidence of guilt. (There is such a thing). – user6726 Jan 14 '18 at 21:11
  • you mentioned that you would like to think that it would not be admissible, may I ask why? From my perspective it doesn't seem fair to take into account a previous relationship of mine with regards to a new relationship I began. However I can understand another POV which would find the recordings permissible since it does detail me doing what A claims I did. @user6726 – user477465 Jan 14 '18 at 21:32
  • @user477465 Normally, all evidence going to the potential truth or falsity of allegations or witness credibility are admissible even if they may be given more or less weigh by a finder of fact (judge or jury). Character evidence can be admitted to show modus operandi which this recording might. The exclusionary rule does not apply absolutely in civil cases and is subject to a balancing test, so could come in even if illegally obtained (and it doesn't sound like it was illegally obtained given the one party consent rule). It might or might not be decisive. – ohwilleke Jun 7 '18 at 15:29
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To prove defamation A must prove that:

  • You said something damaging about A:
    • to someone else
    • that isn’t true
    • and they suffered damage as a result.

The fact that you said something damaging about someone else to A (true or not) is irrelevant.

If they sue you they will have to state the facts they are relying on in their statement of claim. Among these would have to be what you said, to whom and when - if these things are vague or missing they really don’t have a case.

  • Thank you! The reason I was worried about this issue is because I read on another forum that some lawyers said that he doesn't need to prove without a doubt that I sent the letter, just that I could've sent it. Someone else additionally said that if the judge knew I did this in the past then it would help show that I did it to person A. Is this incorrect? – user477465 Jan 14 '18 at 13:43
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    It is correct that the burden of proof in a civil case is much lower, and it could be evidence of prior similar acts. – user6726 Jan 14 '18 at 17:33
  • Thanks. So does that mean there is no defense against this? What could a potential defense against a voice recording be or how would someone be able to disregard the voice recordings – user477465 Jan 14 '18 at 17:44
  • "The fact that you said something damaging about someone else to A (true or not) is irrelevant." It is relevant. You have to show publication of a statement about someone else that is damaging to establish a case. It isn't the only thing that needs to be shown, but it is one of them. Also, untruth is sometimes part of the prima facie case and sometimes an affirmative defense. It would probably be hard to keep the voice recordings out. – ohwilleke Jun 7 '18 at 15:33
  • @user477465 "he doesn't need to prove without a doubt that I sent the letter, just that I could've sent it." Neither is correct. He needs to prove that it is more likely than not that the act was taken. – ohwilleke Jun 7 '18 at 15:35
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The recordings of you talking about non-party B constitute prior act evidence. As such, they are inadmissible for proving that you are the one who authored the accusations that got plaintiff A fired.

However, those same recordings are admissible to prove aspects such as method, system, or intent of doing an act (in this case, the defamatory publications). This is relevant when it comes to awarding substantial damages -irrespective of special or actual damages- if the judge/jury determines somehow that you authored the defamatory communication(s). That is because false accusations of sexual assaults are usually defamatory per se.

(Substantial damages are awarded where a defamer is found to have made the falsehoods with the mental state known in defamation litigation as actual malice.)

If you calumniated A by telling a third party, and that third party is the one who sent the defamatory email(s) to the company, you might be held liable for at least some portion of the damages awarded to A. Thus, the dispositive issue in A's lawsuit is whether or not the defamatory falsehoods are traceable to you at all.

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