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Slander is a part of sex crime

This action was commenced as the result of an incident which occurred between the plaintiff and the criminal defendant culminating in the plaintiff being arrested and accused of sodomy and rape but six months after, the charges were dropped. The complaint alleges six causes of action against the defendant including libel per se, slander per se, slander, intentional infliction of emotional distress, malicious prosecution/abuse of process and prima facie tort.

Defendant moves to dismiss the complaint, alleging that there are no issues of fact regarding her liability in this action. In support of her motion, the defendant submits, inter alia, the pleadings, written statements given to the Suffolk County Police Department by the parties and a nonparty witness, and the depositions of the parties and a nonparty witness.

The defendant now files for a motion for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint.

Defamation has long been recognized to arise from the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society. The elements are a false statement, published without a privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and, it must either cause special harm or constitute defamation per se. In cases involving defamation per se, the law presumes that damages will result, and special damages need not be alleged or proven.

The per se categories consist of the following statements: (1) the plaintiff committed a sex crime; (2) the statement tends to injure the plaintiff in his or her trade, business or profession; and (3) the plaintiff has contacted a loathsome disease among others. When the defamatory statement falls into one of these categories, “the law presumes damage to the slandered individual’s reputation so that the cause is actionable without proof of special damages.

The plaintiff alleges that the defendant intentionally and maliciously made 1) a written complaint to the police that she was raped by the plaintiff, and 2) oral statements to her friend, A, that B had sex with C, and C kept telling B no, but B did not listen,” thus meeting the requirements of CPLR 3016[a]. Domestic violence was not charged.

Defamation traditionally consists of two related causes of action, libel and slander. The demarcation between libel and slander rests upon whether the allegedly defamatory words are written or spoken as held in the case of Matherson v Marchelleo, 2d Dept. 1984. Slander is the uttering of defamatory words which tend to injure another in his reputation, office, trade, etc. Courts have court defined the term in the cases of Shapiro v Glens Falls Ins. Co., 1976, and Liffman v Brooke, 1st Dept 1977. Libel is always considered as written.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact. The burden then shifts to the party opposing the motion which must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact. However, mere conclusions and unsubstantiated allegations are insufficient to raise any triable issues of fact.

The defendant, in the first cause of action for libel per se, contends that she is entitled to summary judgment because her statements about the alleged rape were protected by a qualified privilege.

There is qualified privilege when a person makes a good faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest. The purpose of this common interest privilege is that, so long as the privilege is not abused, the flow of information between persons sharing a common interest should not be impeded and this interest must be expressed in a reasonable manner and for a proper purpose.

Qualified privilege will be lost where the statement was not made for its stated purpose or if it was made with malice that is to say with ill will, spite, or culpable recklessness.

In this case, the plaintiff has not submitted any evidence that the defendant’s written or oral statements to the police and district attorney were made with malice, ill will, or culpable recklessness.

As to whether the defendant’s oral statement to A is defamatory it is necessary to determine if it constitutes a statement of fact or opinion, that is, whether the reasonable person would have believed that the statements were conveying facts about the plaintiff. Initially, the court notes that the evidence reveals that the sworn statement of A states that the defendant said to her “I think I just got raped,” and that “B had sex with her and she kept telling him no, but he didn’t listen.”

As to the second cause of action for Slander Per Se, whether particular words are defamatory presents a legal question to be resolved by the court in the first instance. It has been held that the essence of defamation is the publication of a statement about an individual that is both false and defamatory. Because only assertions of fact are capable of being proven false, a defamation action cannot be maintained unless it is premised on published assertions of fact. Non-actionable “pure opinion” is a statement of opinion accompanied by recitation of facts upon which it is based, or, if not accompanied by such factual recitation, the statement must not imply that it is based upon undisclosed facts. It is a settled rule that expressions of an opinion, “false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions”

In Steinhilber v Alphonse, 1986, the Court sets a four factor analysis based on the semantic nature of the assertion in favor of a determination on “totality of the circumstances.” In distinguishing between fact and opinion, the four factors are: (1) an assessment of whether the specific language in issue has a precise meaning which is readily understood or whether it is indefinite and ambiguous; (2) a determination of whether the statement is capable of being objectively characterized as true or false; (3) an examination of the full context of the communication in which the statement appears; and (4) a consideration of the broader social context or setting surrounding the communication including the existence of any applicable customs or conventions which might “signal to readers or listeners that what is being read or heard is likely to be opinion, not fact. An analysis of the four factors follows:

(1) An assessment of whether the specific language in issue has a precise meaning which is readily understood or whether it is indefinite and ambiguous. It is clear that the specific language used by the defendant was indefinite and ambiguous. The defendant’s specific language, in its entirety, is expressed as an inquiry into what the defendant believes happened, or might have happened, to her in this incident.

(2) A determination of whether the statement is capable of being objectively characterized as true or false. It is determined that the statement is not capable of being objectively characterized as true or false in that the defendant clearly set forth an opinion based upon her belief that the plaintiff had sex with her despite her saying no. No evidence has been submitted to establish that the statement was false when it was made and no expert testimony has been submitted to dispute the statement.

(3) An examination of the full context of the communication in which the statement appears. It is determined that the examination of the full context of the communication in which the statement appears is that of an opinion made by a young woman who had just experienced a confusing sexual encounter under conditions which were ripe for miscommunication, misunderstanding and misperception by the participants.

(4) A consideration of the broader social context or setting surrounding the communication including the existence of any applicable customs or conventions which might signal to readers or listeners that what is being read or heard is likely to be opinion, not fact. The totality of the circumstances strongly suggests that the important policy of deterring actual sex crimes or abuse, and the heightened sensitivity of society to the rights of individuals to control expressions of their sexuality, supports the determination that such exploratory language should be protected.

With this, therefore, it is determined that the words uttered by the defendant constitute non actionable opinion. In addition, the plaintiff has failed to submit admissible evidence of other or further statements by the defendant that would require a trial of his action for slander per se.

As to the third cause of action, a plaintiff alleging slander, as opposed to slander per se, must plead and prove that he or she has sustained special damages. Here, the plaintiff has not alleged special damages, and thus his slander claim is not sustainable.

As to Plaintiff’s fifth cause of action for intentional infliction of emotional distress, it predicates liability on the basis of extreme and outrageous conduct, which so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society. The plaintiff has failed to submit any evidence that the defendant’s actions were purposeful, extreme or outrageous.

As to the sixth cause of action, the elements for prima facie tort are: (1) the intentional infliction of harm; (2) causing of special damages; (3) without lawful excuse or justification; and (4) by an act or series of acts that would be otherwise unlawful. There can be no recovery under this tort unless malevolence is the sole motive for the defendant’s otherwise lawful act. The complaint does not allege that defendants’ sole motivation was disinterested malevolence; the prima facie tort cause of action must fail. Special damages are an essential element of a prima facie tort and must be pleaded with sufficient particularity.

All that plaintiff has alleged in this case is lost future income, conjectural in identity and speculative in amount. This is an insufficient allegation of damages to support a cause of action for prima facie tort. As the complaint fails to show that the defendant acted with disinterested malevolence and also fails to set forth special damages with particularity, the cause of action sounding in prima facie tort is dismissed.

Lastly, for the seventh cause of action, in order to state a claim for malicious prosecution, the plaintiff must establish the following four elements: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff; (2) the termination of proceedings in favor of the accused; (3) the absence of probable cause for the criminal proceeding; and (4) actual. Here, the defendant provided the police authorities with information and cooperated in their investigation. In this regard the defendant has established her prima facie entitlement to summary judgment on the issue. The plaintiff has failed to provide any evidence of the defendant’s alleged malice in reporting this incident to the police department beyond mere conclusions and unsubstantiated allegations which are insufficient to raise any triable issues of fact. Thus, the Court need not proceed any further to consider the other elements of malicious prosecution. A failure to establish any of the required elements defeats the entire claim.

The complaint is dismissed in its entirety.

Suffolk County Sex Crime Lawyers, Suffolk County Libel Lawyers, Suffolk County Slander Lawyers and Stephen Bilkis and Associates accept cases of the same nature. If you are faced with cases involving slander, libel, torts, and the like, contact us at our toll free number or visit our firm. We are very willing to extend our legal services.

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