Connecticut Supreme Court to Sex-Assault Complainants: Watch What You Say, But Only if Malicious

Like most other jurisdictions, Connecticut has long immunized from defamation liability statements made in, and germane to, court proceedings. Among the underlying rationales are that these allegations are subject to adversarial testing before a neutral presider and that various legal and ethical constraints deter frivolous factual assertions in court. As Connecticut’s Supreme Court has routinely observed, the judicial process is of such fundamental importance to society as to demand an open channel of communication between the participants and the forum, untrammeled by fears of a defamation lawsuit.

Thus, it was significant this week when, in Khan v. Yale University, answering a set of certified questions from the Second Circuit, the Connecticut Supreme Court declined to extend absolute immunity from defamation liability to statements made during a university’s administrative process for reviewing sexual‑assault complaints. A line of decisions has extended this absolute immunity to “quasi‑judicial” contexts, typically involving governmental functions that resemble court proceedings to a sufficient degree to warrant the same protection. Khan considered what makes a proceeding “quasi‑judicial” in general and whether Yale’s proceeding shared those qualities.

Relying on its prior decisions and carefully considering various policy implications, the Supreme Court determined that the proceeding at issue was not quasi-judicial and, as a result the statements made during the hearing were not entitled to absolute immunity. The court then held, however, that the statements received qualified immunity, which can be overcome by establishing the speaker’s malice—whether in the constitutional sense of “actual malice” (i.e., a knowing or reckless falsehood), or in the form of an improper motive.

To summarize the procedural history: Accused of sexual assault while an undergraduate, the Khan plaintiff was acquitted of all charges after a criminal trial, but later expelled from college after being found by Yale’s Committee on Sexual Misconduct to have violated University policy. He then sued his alleged victim in federal court for defamation (while also lodging a federal Title IX claim against Yale). The accuser—referred to as “Jane Doe”—moved to dismiss the defamation claim based on absolute quasi‑judicial immunity, the district court granted the motion, and the court then entered a partial final judgment to expedite review.

On appeal, the Second Circuit performed a searching analysis of decisional law from Connecticut and elsewhere before concluding that the available authority did not sufficiently signal how the Connecticut Supreme Court would analyze, let alone resolve, whether the administrative hearing constituted a quasi‑judicial proceeding so as to confer absolute defamation immunity on the participants. The circuit therefore certified these questions to Connecticut’s highest court, which accepted review.

Regarding the standards for analysis, the Supreme Court clarified that a proceeding qualifies as quasi‑judicial only when it “is specifically authorized by law, applies law to fact in an adjudicatory manner, contains adequate procedural safeguards, and is supported by a public policy encouraging absolute immunity.” As for the case’s outcome, the court held that Yale’s proceeding satisfied the first and possibly the second requirement but failed to meet the third, based on the following five procedural defects:

One, witnesses in the proceeding did not testify under oath, provide sworn statements, or certify to their statements’ accuracy, nor did the university display any means of holding witnesses accountable for lying.

Two, the proceeding did not permit the accused or the accuser to confront or cross‑examine adverse witnesses—including each other.

Three, the parties lacked a reasonable opportunity to call witnesses, but rather could only recommend that the committee call witnesses in its sole and standardless discretion.

Four, the proceeding relegated counsel “to the status of the proverbial potted plant,” unable to present oral or written argument, lodge evidentiary objections, or attend or participate in witnesses’ questioning.

And five—anathema to appellate lawyers—the lack of any recorded transcript hampered the losing party’s ability to seek review.

Accordingly, the court concluded that Yale’s administrative hearing was not quasi-judicial, and that absolute immunity therefore did not apply. Viewing no procedure in isolation as necessary or dispositive, the court held that “the collective absence of such features militates against a determination that the proceeding had adequate safeguards to ensure reliability and promote fundamental fairness.”

The court then answered the circuit’s next inquiry—whether Connecticut would afford Doe’s statements qualified immunity from defamation liability. That analysis turned on a balancing exercise. On the one hand, the court was “sensitive to the need to encourage alleged victims of sexual assault to report their abuse to the appropriate authority at any institution of higher education, free from fear of intimidation and retribution.” On the other hand, the court highlighted the absence of any societal benefit from “intentionally false and malicious accusations of sexual assault,” which may entail “life altering and stigmatizing consequences,” and if “accepted without adequate procedural safeguards carry too great a risk of unfair or unreliable outcomes.”

Weighing these competing public‑policy concerns, the court held that statements in the University’s proceeding garnered qualified immunity, surmountable by demonstrating the speaker’s malice. And the court concluded that, accepted as true on a motion to dismiss, the complaint’s allegations supported a reasonable inference that the Khan accuser knowingly fabricated the assault claim. Some further observations are in order.

There is merit to the court’s middle ground in this sensitive area, in which assault complaints are frequently, though not always, a credibility test. The often‑brave complainants obviously deserve protection from retaliation. But defensible too is the idea that the complaint process should have some guardrails. To compare, knowingly submitting a false police report or testifying falsely at a criminal trial both are independent crimes.

Moreover, because it found the University’s specific procedures inadequate to justify absolute immunity, the Supreme Court expressly declined to resolve whether only governmental proceedings (and not those of private entities) could shroud participants with absolute immunity from defamation liability. Given the court’s observation that Connecticut law specifically authorizes investigations and disciplinary proceedings for sexual‑assault claims at public and private educational institutions alike, subject to similar minimum requirements, there arguably should be no difference in treatment for immunity’s sake. Nevertheless, the express question remains open—a wise approach. While it’s tempting to reach out and decide questions unnecessary to a case’s resolution, wisdom dictates that stating no more than necessary is the better course—future cases will result in fewer distinctions, explanatory footnotes, retractions and especially regrets. There will almost always be another case.

To be sure, an institution could put in place procedures for reviewing sexual‑assault complaints that avoid the pitfalls identified in Khan, bolstering an argument for absolute defamation immunity. The court certainly provided ample guidance. But the remediation might not be without cost: insofar as federal law mandates adherence to certain procedures to comply with Title IX, straying from them could jeopardize continued receipt of federal funding. Institutions will need to consider all relevant concerns and current legal requirements.

Finally, the malice element offers considerable refuge from a defamation claim in this context, by functionally imposing First Amendment protections that might not otherwise apply. Defamation claims against public figures require a showing of “actual malice,” i.e., knowing or reckless falsity. And actual malice need also be shown to recover presumed damages for defamation on a matter of public concern. These hurdles likely would not extend to a dispute over whether one private figure sexually assaulted another—an assertion that, if false, would constitute defamation per se, for which reputational harm is presumed. By mandating a showing of either actual malice or illegitimate motive to overcome qualified immunity, however, the court’s decision in Khan treats these defamation claims essentially on par with those receiving heightened constitutional protection.

Even so, one of absolute immunity’s key benefits is avoiding the hassle of a lawsuit, and defendants in these cases might not secure quick dismissals. That includes the Khan defendant. The Connecticut Supreme Court concluded that the plaintiff’s allegations, taken as true, supported an inference that Doe fabricated the sexual‑assault claim—given her alleged “romantic advances toward” the accused, her purportedly inconsistent reporting of the episode, and the alleged “larger political movement” on campus against perceived sexual assailants. These same allegations could be made in many cases, they would have to be accepted as true on a motion to dismiss, and courts frequently hesitate—as the Supreme Court did here—to dismiss complaints for failure to plead the required mental state. How courts approach this topic in any future lawsuits will be noteworthy.

Reprinted with permission from the Connecticut Law Tribune. © 2023 ALM Global Properties, LLC. All Rights Reserved. Further duplication without permission is prohibited, contact 877-256-2472 or reprints@alm.com.