Steven Galloway trial appeal pits author’s fight for reputation against accuser’s right to speak

Steven Galloway and the graduate student who accused him of sexual assault – known only as AB – claim to have contemplated suicide in the years since the allegations first surfaced.

The two once thought of themselves as creative people. But Galloway, the best-selling author of novels like The cellist from Sarajevosays he can no longer put pen to paper, “paralyzed by fear of the likely reaction of a reading public”.

AB says she can’t make art without “directing it through a lawyer for fear of being sued”.

These statements come from the volumes of documents filed in the legal battle that appear to have exhausted them both.

It’s a dispute that isn’t likely to end anytime soon as Galloway’s libel suit against AB and his supporters goes to the BC Court of Appeal in a case that promises to test the right to a person to fight for their reputation versus a self-identified survivor’s right to publicly discuss their version of events.

“Compelling” interests on both sides

Galloway, AB and more than a dozen people he accused of calling him a rapist all recently appealed a BC Supreme Court ruling rejecting a bid to dismiss the case to try to use the courts to silence critics.

AB and those accused of repeating his accusations say lower court decision made a mistake. Galloway wants to restore the few claims the judge dismissed.

It’s a case that has already received wide publicity, sparking a Canadian literary war that has drawn writers like Margaret Atwood to the front lines of a debate over how the charges were handled by the University of British Columbia, where Galloway chaired the creative writing program.

Legal experts believe the case will only grow in importance.

“The interests on both sides are pretty compelling,” says Justin Safayeni, a Stockwoods lawyer in Toronto who focuses on media and defamation law.

“Someone who has been accused of sexual assault or physical abuse has a very strong interest in defending the reputational damage that comes from those accusations, and on the other side of the equation, people who are express because they say they have suffered a sexual assault or violence also have a strong interest in making it known. »

Lillianne Cadieux-Shaw is a lawyer with St. Lawrence Barristers, a Toronto law firm that specializes in both defamation law and the representation of victims of sexual assault.

She says the two practice areas have increasingly intermingled in recent years with an increase in the number of men – like Galloway – suing women who accuse them of sexual assault.

She thinks B.C. Supreme Court Justice Elaine Adair made the right decision in allowing the case to go forward, but she would have liked to say more about the difficulties faced by the women to report allegations of sexual assault.

“I wonder if this decision will make women who want to support other women or anyone who wants to support other women more nervous to do so,” Cadieux-Shaw told CBC.

“Unfortunately, where that leaves survivors is that they can speak out about their experiences and be sued for it.”

“The Dynamics of a Crowd”

According to the ruling, Galloway and AB had a “personal relationship” between 2011 and 2013 while she was on the creative writing program. They were both married at the time.

“The true nature of this relationship is hotly disputed,” adair wrote:.

“Mr. Galloway publicly described it as a consensual affair. AB described it as ‘a continuing abusive relationship’ and a ‘traumatic bond’ and not at all consensual.”

A report commissioned by UBC was unable to conclude – on a balance of probabilities – that a sexual assault had occurred.

The report only concluded that Galloway engaged in inappropriate behavior with a student.

In response, Galloway issued a public apology, which Adair said “perhaps predictably … added more fuel to the firestorm.”

He is suing AB and his supporters – including professors, students and UBC social media activists – for implying that he raped, sexually assaulted and physically assaulted her.

The writer does not pursue accusations made through confidential channels set up specifically to investigate complaints of sexual assault.

Galloway told AB’s attorney that ‘none of us would be sitting here today’ if AB and his supporters hadn’t gone beyond this process to tell the world about his accusations .

“Acceptable road mortality”

Adair made clear that she was not judging the merits of Galloway’s claims, but rather conducting a balancing exercise required under rules designed to discourage strategic lawsuits against public participation – known as lawsuits. SLAPP.

The judgment has 242 pages. A handful of paragraphs expose the tension between the two parties.

AB’s lawyers argued that allowing Galloway’s trial to go ahead “will have profound and resounding effects that will extend far beyond British Columbia … making it difficult or impossible for [A.B.] to identify as a ‘survivor’ in any capacity; and to engage in advocacy and activism on issues of sexual violence. »

Galloway’s lawyer, on the other hand, calls this position absurd, saying that “the attitude that a person should be able, with impunity, to bring an accusation that someone is a rapist and has perpetrated sexual assaults must be corrected”.

“He treats Mr. Galloway as an acceptable road accident and his reputation as expendable…he ignores the dynamics of a crowd and the collective effect of many punches.”

“Who can better defend their truth? »

Safayeni and Cadieux-Shaw say the Galloway case highlights the dangers of online activism and echoes someone else’s allegations without taking the time to investigate the details.

One of the women Galloway is suing — a Calgary-based sexual assault survivor and lawyer — has just 300 Twitter followers.

“[The case is] attached to this idea that the crowd as a whole has this impact of collectively destroying a reputation,” says Safayeni.

“It’s the only case I’ve seen that deals with this in depth and it contributes to a general deterrent effect that will come from decisions like this, for better or for worse.”

The case highlights the difference between what an individual claims as their “truth” and the “truth” as decided in civil cases, in terms of sets of facts proven on a balance of probabilities .

“Unfortunately, this often diminishes the truth of women’s lived experiences, because we all know what is provable is very difficult in these situations,” Cadieux-Shaw says.

“In that case, it just becomes who can better stand up for her truth? The courts aren’t really the best place for a woman to share her experiences.”

“It was impossible to find common ground”

Galloway was awarded $167,000 in 2018 after an arbitrator found UBC violated his right to privacy and damaged his reputation.

He claims his notoriety reduced his annual income to $30,000 or less: “My agent told me there was no point throwing out novels given the stain on my name.”

AB says she feels like “vomiting” every time she looks at the mountains of legal documents the case has accumulated.

“I don’t know in good conscience that I would tell women who have been sexually assaulted to come forward,” she swore in an affidavit.

“I feel like I would be doing violence to other victims of sexual assault if I encouraged them to come forward.”

Cadieux-Shaw and Safayeni say the case reflects the cost of a libel suit in terms of money and emotion invested.

“It goes to a bigger point,” says Safayeni.

“Bringing a libel suit is brutal. It’s brutal because in the road to any potential vindication of reputation there is an extremely public, extremely long and extremely expensive road.”

Cadieux-Shaw says the male plaintiffs have something to gain, while the women who accuse them face only the prospect of heartbreaking litigation over their issues.

“When women find out that there’s also the possibility of their abuser bringing retaliatory lawsuits against them…why would a woman report?” she says.

“I would have liked the court to recognize the immense burden that the litigation places on anyone, but certainly on survivors or people who have been through this stuff.”

The conflict will continue to polarize as it progresses through the justice system — a fact that Adair herself acknowledged at some point in her decision.

“It was impossible to find common ground,” the judge said of the public debate.

“The possibility that someone might both feel that Mr. Galloway was not treated fairly by UBC and have deep sympathy for the victims of sexual assault has not been acknowledged.”