1 week Ago By Michael Karlik [email protected]
Members of the Colorado Supreme Court considered on Wednesday whether alleged victims of campus sexual misconduct can be sued for statements they make during a school's investigation, especially if the inquiry lacks safeguards protecting an accused student's rights. Generally, what someone says during the course of judicial proceedings has " absolute privilege ," meaning their statements cannot form the basis of a lawsuit — even if they are knowing falsehoods. The same principle extends to statements in quasi-judicial proceedings, which can include investigations and adjudications that take place outside a courtroom.
Previously, the state's Court of Appeals concluded a campus sexual misconduct investigation that lacks key features of fairness and reliability is not a quasi-judicial proceeding. Therefore, it is possible to sue witnesses or victims for the untrue and damaging statements they may make. During oral arguments, multiple justices recognized there are legitimate reasons for and against holding participants legally liable for their defamatory statements.
"Why do we want to subject someone to a lawsuit challenging whether they're lying or were accurate or the like?" said Justice Richard L. Gabriel. "That would certainly chill somebody's willingness to participate in an investigation or to come forward with allegations that, for them, were very serious.
" Colorado Supreme Court Justices, from left, Carlos Samour Jr., Richard Gabriel and Brian Boatright listen Thursday to arguments from Jake Davis, representing the Nonhuman Rights Project in a case vs. Cheyenne Mountain Zoological Society at the Wolf Law building at the University of Colorado Boulder.
"On the other hand," added Justice William W. Hood III, the Court of Appeals felt "we also want to create a legal regime in which there is sufficient due process. That someone who’s falsely accused doesn't suffer consequences that they shouldn’t.
" In the underlying case, Benjamin Gonzales was a student at Evergreen High School when two female classmates accused him of sexually harassing or touching them in 2018. The school performed an investigation pursuant to Title IX, a federal civil rights law, and Gonzales was expelled from school. Prosecutors in Jefferson County brought criminal charges against him for unlawful sexual contact, but a judge found him not guilty.
After the trial, Julie Hushen and Nicole Weary, the mothers of Gonzales' accusers, allegedly sent emails to school personnel arguing against readmitting "this predator," referring to their daughters as "victims" and claiming Gonzales had a "history of sexual assault." Subsequently, the school district reopened its Title IX investigation into Gonzales. Gonzales sued his accusers and their mothers for defamation.
Although all parties proceeded under their full names in the civil lawsuit, the defendants' attorneys waited until the beginning of oral arguments to ask the Supreme Court not to refer to the defendants by name going forward. Chief Justice Monica M. Márquez was taken aback by the request and said she could not immediately commit the court to redacting the names from its opinion.
Nonetheless, Colorado Politics will not name the former students due to their status as alleged victims of sexual misconduct. In 2023, a three-judge panel of the Court of Appeals agreed Gonzales' claims should proceed . Among other things, the panel concluded the defendants' statements were not shielded by absolute privilege, like a witness in a courtroom, because the Title IX process in Jeffco did not have the key procedural safeguards characteristic of quasi-judicial proceedings.
"Although these procedures may seem adequate at first glance, we conclude that they are insufficient to ensure reliability and fundamental fairness, nor do they allow for adversarial testing of the facts," wrote Judge Katharine E. Lum. "We question whether any tribunal could adequately assess credibility or perform a truth-seeking function under such circumstances.
" Courtesy photo Judge Katharine Lum smiles in April 2023 at her ceremonial swearing-in to the Court of Appeals. On appeal to the Supreme Court, the Colorado Department of Regulatory Agencies and Colorado Department of Early Childhood weighed in to caution the court about how its decision could broadly affect state quasi-judicial proceedings in which licenses are suspended or revoked. "If complainants face the possibility of a defamation lawsuit following an administrative proceeding, they could hesitate to come forward, hampering investigations into conduct that violates professional standards and chilling the Departments’ missions to protect Colorado consumers, children, and families," wrote the Colorado Attorney General's Office.
The defendants argued against the Court of Appeals' definition of quasi-judicial as too narrow and overlooking the purpose of a Title IX investigation. "Today’s proceeding is not under oath. There’s no cross-examination," said Steven Zansberg, an attorney who also represents media organizations.
Due process can be denied in a judicial proceeding, but "it doesn’t change the nature of the underlying proceeding." Some members of the court were open to the idea that Jeffco Public Schools may have violated Gonzales' due process rights — and heard that Gonzales reached a settlement with the district in response to a separate federal lawsuit. But that question was separate from the protections afforded to his accusers' testimony.
"The school district asked these women to supplement their allegations and then your client has sued them," said Gabriel. "That seems like the exact kind of thing where we would want immunity to apply because we want to encourage people to come forward and participate in investigations." (From left) Colorado Supreme Court Justice Brian D.
Boatright, Chief Justice Monica M. M á rquez and Justice William W. Hood III listen to arguments from Assistant Attorney General Caitlin E.
Grant during the People v. Rodriguez-Morelos case as part of Courts in the Community at the Wolf Law building at University of Colorado Boulder on Thursday, Oct. 24, 2024.
The semi-annual event entails the Colorado Supreme Court hearing arguments before an audience of students throughout the state. (Stephen Swofford, Denver Gazette) "If those statements are truthful and reliable, that’s exactly what should be protected," responded attorney Carolyn Pelloux for Gonzales." "When you say, 'If they're reliable, they should be protected,' then you’re saying they shouldn't have privilege," interjected Justice Melissa Hart.
"I think that's the concern." Hood also added that in investigations, victims do not have total control, if any, over the process. Therefore, they could be sued "for the sins of the government.
" "What you’re saying is they need to lose privilege, these young women, in order to maybe serve as a catalyst for system reform to make the due process more robust," he said. "They have to lose privilege, maybe be subject to damages, in order to invite reforms systematically. Is that essentially where you're coming from?" The defendants are trying to "have absolutely no legal exposure whatsoever for saying something that is untrue," Pelloux responded.
"And truthfulness, I would suggest, should be at the heart of this analysis." The case is Hushen et al. v.
Gonzales..
