Trauma & Testimony

The Fawn Response within the Framework of Defamation & Sexual Misconduct Lawsuits - Part One

I work at a law firm as a content manager. A lot of the cases we get in our office deal with defamation—that’s the core of our firm’s practice. A lot of those defamation cases are retaliation to accusations of sexual misconduct. I have a lot of opinions about these cases, but my opinions have no place on the firm’s official accounts as content.

But, lucky me, I have a blog full of my own opinions that do not reflect the firm I work for in any way. Hope that’s enough to cover everyone’s ass.

I see in the news a lot of high-profile retaliatory defamation suits. A few I can name off the top of my head are Depp V Heard, E Jean Carroll v Trump, Virginia Giuffre v Alan Dershowitz, Mace vs Musgrave, and Justin Baldoni v Blake Lively. I want to unpack this, because it feels like it's built into the legal system itself: if someone accuses you of sexual misconduct and you can afford a lawyer, you can fight back with a defamation claim.

The lawyer’s job, regardless of their personal values or what they believe really happened, is to defend the client. If the client didn’t do it, that means the accusation would be considered defamation per se. The lawyer’s job is to defend that position with whatever evidence they can find that weakens or contradicts the prosecution.¹

In the legal system, the burden of proof is on the accuser. In the United States, we are—at least in theory—innocent until proven guilty. So, if you make an accusation, you’re expected to provide evidence to support it. The defendant isn’t required to prove they didn’t do something if the prosecution never produces substantial evidence.

So, if a person accuses someone of sexual misconduct and wants to take legal action, they will be the ones required to provide evidence of sexual misconduct.

If that person comes forward publicly with an accusation, with or without legal action, and the accused files that retaliatory defamation suit. That means they will have to provide evidence of defamation, to back up their accusation that the other person is lying. So, it would be up to them to prove they didn’t do it.

Since I live in my bubble of queer artists, I’m sure I don’t have to explain that the legal system has problems and is quite inaccessible for many reasons. But there is further inaccessibility, or hurdles, that exist before the legal system can even be considered.

A lot of people socialized as women find themselves enduring quite a bit of sexual misconduct until it gets bad enough that we have to figure out how to gracefully tap out. By the time it reaches the point of requiring legal action, the misconduct has often been going on for a while and it has escalated to an unbearable degree and nothing else has helped. It has to be bad enough to be worth the hurdles.

HURDLES

First of all, there are plenty of personal reasons victims of sexual misconduct do not speak up, and even more barriers to pursuing legal action.

HURDLE ONE: It is so often taken for granted that it is easy to realize what has happened is considered sexual misconduct. Many elements could be contributing to this denial or misunderstanding of the situation. This is its own essay, though, so I’m going to yada-yada through that for now.

I have heard from DV advocates and other trauma informed providers avoid telling someone that they are a victim, unless they self-identify. They don’t want to force that label of “victim” onto someone or be the one to tell them that they suffered a traumatic event, if it doesn’t appear that they understand it in that way. That in itself could be traumatic, and/or cause a reaction of denial or resistance.

The process of understanding what happened and coming to terms with it can take a lot of time. I refer to this as “latency” later. As a note, the US legal system has a statute of limitations for sexual abuse that varies based on location, but for the most part, victims have at least a few years to take action. Even if someone jumps over every hurdle, it could still take a number of years, and that only makes it more challenging as time goes on.

HURDLE TWO: There is a cognitive bias called authority bias, that causes people to be predisposed to obey authority without thinking critically. We also feel pressure to reinforce social hierarchies or easily fall into doing so without realizing it. There is this default setting we have, especially those raised as women, where we feel obligated to perform trust. That is, it can be extraordinarily difficult to demonstrate to another person that we do not trust them, so we play along in order to avoid hurting the other person’s feelings or making them uncomfortable or embarrassed.

This means there can be personal resistance to refusal. It doesn’t even have to be the case that someone else is actively manipulating or pressuring the other person. The call could be coming from inside the house. I witness it within myself.

Refusal requires a certain vulnerability or self-assuredness that is not always available depending on the situation, or the individual’s predisposition.

In the Hidden Brain 2.0 episode, “How to Say No,” the psychologist Vanessa Patrick describes how our social scripts predispose us to compliance. Even in casual situations that are far from traumatic, the pressure to comply is very strong. It often takes deliberate practice to unlearn this reflex.

Remember the Stanford Prison Experiment. I’ve heard this study, and how it is described, has its flaws, but I use it here to represent the idea that people in power will abuse power when given the opportunity.

On the other side of the same coin, the Milgram Experiment showed that people will compromise their own values if an authority figure tells them to. Participants in the study were asked to shock another person by an authoritative scientist. The participants didn’t know the shocks were fake. The actor in the other room put on a good show. I would have enjoyed that gig.

Very few participants pushed back on the authority or refused to finish the study, even though they were horrified by the idea that they were causing great pain to another person.

If these aren’t enough hurdles already, don’t worry, I have more.

HURDLE THREE: The person hurting them might still have power over them or have a relationship with them they are (yet) unwilling to jeopardize. It may be a strategic choice to carry on in the relationship, because the individual recognizes that greater harm could occur if they retaliate. They weigh their options to make the best choice for them for the moment.

This could be a boss, or a guardian, or it could be a lover. If this kind of codependence has that extra spice of what I call the “but I love him*” disease, or the similar “I can fix him*” disease, then it is even harder to wrap the mind around speaking out or taking action. The victim’s mind is doing the work of justifying staying in the relationship. The reasons people stay in abusive relationships is its own essay.

HURDLE FOUR: The Streisand Effect occurs when someone attempts to hide something online but ends up calling more attention to the problem in the process. Knowing this, it can be a strategic reason to stay silent about an issue, because publicity can make a situation worse for everyone very quickly.

The smartest call if someone is pursuing legal action is to never talk about the case. “Anything you say can and will be used against you.” It’s not only a legal strategy, but a PR strategy, useful for anybody who is visible on the internet.

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So, granted a person has come to terms with what happened, hopped all these hurdles, and now they have to decide how they want to respond. Maybe they just want to move on and find healing without confronting the perpetrator or getting tangled up in the legal system at all. Can’t blame them.

LEGAL HURDLES

If a victim does want punitive justice, then they have to determine,

HURDLE FIVE: if they can afford legal resources, or if the convoluted, confusing, and time-consuming process is even worth pursuing at all. Does this person even have safe access to the US legal system?

HURDLE SIX: Subjecting oneself to the legal process can be retraumatizing.

There is the choice to use the word “survivor” instead of “victim,” and providers prefer to respect the wishes of the individual to self-describe, but usually the legal system requires the use of the word “victim” to access certain services.

The situation also often has to be “bad enough” to access certain protections. This can be incredibly invalidating if your situation, though terrible, still doesn’t meet the specific criteria to access resources.

HURDLE SEVEN (and it’s a big one): They have to have sufficient evidence.

It can be so elusive to gather the kind of evidence that the legal system is going to accept. If someone is making a legal claim for sexual misconduct, the system demands the victim provide evidence, but that often doesn’t exist. That failure is why the #MeToo movement had to happen. It urges people to simply believe women when they say they were sexually abused, without relying on having to produce evidence to prove it.

The first conclusion the mainstream public tends to come to for some-ass reason is that women are hysterical or lying about these experiences. It is incredibly unlikely that this is the case, so we should start from a place of believing women & victims. If you’re reading this, I’m sure you know this, like duh.

Unfortunately, I don’t envision a world in which the legal system will operate without requiring evidence. I think ultimately the paradigm of “innocent until proven guilty” is solid. We should keep that. (We still put innocent people in jail as they wait for trial, and mis-convict people all the time but I’m talking ideally, it’s a good idea.) Evidence leads us to proof. It’s all we have to support serious accusations in what otherwise would be a coin flip, or what a lot of attorneys call a “he said she said” case.

All genders are made equal, deserve equal rights, and therefore we all equally capable of all sorts of misconduct, including lying.

There’s a very complex power dynamic within this patriarchal society that complicates the issue of sexual misconduct, in that it’s not symmetrical— it’s not just as likely that women and men are perpetrators— but that’s also its own essay.

So, let’s agree that yes, it’s very rare that someone lies about being a victim of sexual misconduct, but we have to acknowledge that it does happen. Since this is a possibility, due process must exist in a lawful society. Evidence is a part of accountability, even if it is flawed or incomplete.

I’ll talk more later about how I don’t think it’s as simple as one person is lying, and one person is telling the truth. But in this fractal of complexity that is sexual misconduct, I, in so many words, I don’t know how else we’re gonna figure this the fuck out. Won’t stop me from trying, though, I guess, so let’s continue.

HURDLE EIGHT: Going to trial is the final boss. The system often requires the victim/survivor/prosecutor to and the defendant/abuser to be in the same room in court. A lawyer, if accessible, will be able to speak on their behalf, or sometimes the defendant may not have to show up for the trial to continue— but the defendant still has a right to show up. The victim would tell their traumatizing story in front of their abuser and strangers in robes, and sometimes a jury, in a windowless room, in a big, formidable building, in an unfamiliar part of town where it’s hard to park your car, if you have one, and you’ll have to take a day off of work. Everyone is speaking legalese, and it’s hard to know if you’re understanding everything correctly, especially when you’re feeling stressed. Sometimes you have to say what feels like the magic words to get the results you need.

This stack of reasons is why so many victims just say, fuck it, and move on with their lives as best they can, and the person who abused them will go on abusing other people, having learned absolutely nothing and experienced no consequences for their bad actions. It sucks to expect a victim to do the work of teaching an abuser some shit.

But even if the perpetrator is told straight up what they did was wrong,

HURDLE NINE: will they even listen? Will they actually understand? Will they change? Will the victim be safer after the process? What is the result of all of this?

BALDONI V LIVELY

I want to use the Justin Baldoni and Blake Lively defamation case to explain how the evidence Baldoni uses to defend himself ignores the fawn response and other pressures women like Lively would face in her situation. I believe her very reasonable behavior is being used against her in legal proceedings. My argument is that the “evidence” Baldoni has provided to defend himself doesn’t disprove Baldoni’s sexual misconduct or delegitimize her claim against him. Her actions are not counterevidence, nor are they necessarily consent.

At the risk of this becoming some opaque and boring jargon, I’m going to allow myself to get pissed off.

A huge part of Baldoni’s evidence was the behind-the-scenes footage of Blake slow dancing with him. She was being cordial and didn’t look bothered by anything he was doing in that moment. There were text messages between them showing them being friendly. He describes moments of her joking around on set, that she wasn’t visibly distressed.

He says that all of this evidence means that her complaint is a “documented and knowingly fabricated lie” and that it “unequivocally counters” her claims.

Ok, what the fuck does this actually prove though? Be serious.

The argument is basically: “Look at all this footage where you see us behaving ourselves while we were on the clock and knew we are being filmed! It looks like she liked him. So, she must be making it up that he ever made her uncomfortable because in these moments that happened to be filmed, she seemed fine!”

(This isn’t legal advice and I’m not a lawyer, but) frankly, and disrespectfully, fuck that.

He tried to prove that she wasn’t really bothered by his actions, because she didn’t show it– or rather, he didn’t notice. He thinks this means she simply wanted to ruin his reputation, undermine his authority, and get money out of him.

Y tho? For fun?

“Yeah, look at how bitchy she was towards that interviewer!”

Don’t even get me started on the dark PR.

He also thinks that she’s using her power and fame to ruin him, but does he not also have his own power and fame? Did he not also do the same thing with the fucking PR astroturfing campaign against her?

Please.

I’m seeing that Lively’s attorneys have a statement that says, about that behind-the-scenes footage that Baldoni provided as evidence,

“Every moment of this was improvised by Mr. Baldoni with no discussion or consent in advance, and no intimacy coordinator present. Mr. Baldoni was not only Ms. Lively’s co-star, but the director, the head of the studio and Ms. Lively’s boss. Any woman who has been inappropriately touched in the workplace will recognize Ms. Lively’s discomfort. They will recognize her attempts at levity to try to deflect the unwanted touching.”

And Baldoni will call her difficult, I’m sure.

A woman on set, in a professional environment, with cameras on, is going to be motivated, even pressured, to stay professional, especially when her co-star and boss makes her uncomfortable. She has a lot to lose, so she’s going to play along. His character is in love with her character, and that’s what the scene demands. She’s not going to break the scene or make a fuss. That would make her look like the problem. She’s already being accused of being difficult, and she has to take so many breaks to breastfeed her child, which must mean that she loves showing her tits to Baldoni, right? So, he had a right to act the way he did, right?

She keeps her head down and gets through the scene the best she can. When she feels like she has to interrupt because she’s icked out, she makes a joke. She acts like it’s fine. Maybe it is fine. Maybe she’s just making it all up. What about that nice dinner she shared with him earlier? He’s not such a bad guy after all, right?

And that is what we will call a fawn response—a trauma response where someone acts agreeable and accommodating in order to stay safe in the moment. That response, and how misunderstood it is, is at the center of my entire thought spiral around this kind of issue.

But back to Baldoni—of course his lawyer is going to use those “friendly” texts or video clips as evidence. If you’re an attorney, that’s low-hanging fruit. I feel like it’d be a sign of a bad lawyer if they didn’t use it, because what else do you have to use? All the evidence I’ve seen is pretty weak to me.

He plops some so-called evidence into his complaint and just assumes all over the place that this means he knows how Lively feels— he knows for a fact she wasn’t uncomfortable. How is that even possible? I don’t think that’s possible, Justin! She’s a fucking actor for Christ sake. What if Blake didn’t even know how she felt? What if it took her time to process how she felt?

Once you get into things like allegedly hiring a dark PR firm to discredit the accuser, to turn the public against her so people hate her too much to care about her story about him—if you ask me, that’s not the behavior of a guy with nothing to hide.

Just as a bonus because it really made me want to slingshot my body into the sun, I will include this snippet of Baldoni’s claim that he’s using to deny the allegations of using dark PR:

I swear to God. Are we really going to say with our whole chest that we can truly interpret unequivocal meaning with 100% certainty of someone’s intent because of a god damn upside-down smiley face emoji? I’ll throw myself off of a bridge.

“Just kidding” lookin’ ass. But damn, does Baldoni have a lawyer working his absolute ass off.

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Ok, so let’s also do this: let’s throw out the entire dark PR portion of this whole case. Even if Blake Lively has an organically bad reputation, even if she’s actually a total rotten bitch and everyone hates her— does that mean she couldn’t have been sexually harassed?

What the fuck does being a rotten bitch have to do with whether or not her boss was inappropriate to her?

Regardless of if Baldoni (or his lawyer) actually believes what he says, Lively— and many people raised as women— are trained actors, to an extent.

I assert that the fawn response can apply to a majority of situations besides the one with Blake Lively. I think it explains so much about how victims respond to sexual misconduct, and why offenders tend to shit the bed with their refusal to take accountability.

I don’t think it’s as easy as one person must be lying. I think the most likely scenario is that both people are telling what they believe the truth is based on their own (biased, subjective, egoic) perceptions. Objective reality is unknowable, just as the self is unknowable, just as the bottom of the ocean and the edges of space are unknowable, and all we have is our biased, subjective, egoic, and flawed perceptions.

End of part one, because I popped off and hit the character limit with the entire essay.

1. So, don’t blame a lawyer for doing their job, blame people who lie. My friends are lawyers. They’re good people with difficult clients.