First Amendment Case: Sexual Assault Victim’s Counterclaim

There have been further developments in Wade v. Foster, an important First Amendment case in which I represent Erin Foster, a woman who reported being sexually assaulted.  As I  mentioned in a previous post, the case is unusual in that although Erin, my client, reported the sexual assault, she is being sued by Bret Wade, the person identified as her assailant.  Erin believes that the lawsuit, in federal court in Maryland, is meant to intimidate her into remaining silent.

Wade, the alleged sexual assaulter who is suing Erin, claims that Erin’s report about what he did to her is not true and, therefore, that she owes him at least $500,000 for  telling others about the assault.  Ironically, by Wade’s own account, Foster told others that she had been sexually assaulted, but did not publicly name the person responsible.  The fact that it was Wade who is accused of assaulting Erin only became public (and the subject of media reporting) because Wade decided to sue Erin.  Erin is a burlesque performer and both Erin and Wade, who describes himself as an expert in “Kinbaku,” “the Japanese art of rope bondage,”  have been active in the close-knit D.C.-Baltimore “kink” alternative lifestyle community.

In addition to taking Erin to court,  Wade had his attorney send letters to at least three other individuals threatening to sue them if they mentioned the sexual assault allegations and posted a similar threat on the internet, apparently directed to the entire kink community.  As Wade surely realizes, the reality of our legal system is that defending against even the most baseless of lawsuits can cost tens of thousands of dollars.

If Wade’s objective was to silence Erin he failed.  She has now countersued for assault, battery, intentional infliction of  emotional distress, defamation and abuse of process.   In response, Wade recently filed a motion to have the intentional infliction of emotional distress, defamation and abuse of process claims dismissed.  (He does not dispute that the assault and battery counterclaims should proceed.)  The reasoning his attorneys advance for dismissal of these claims is interesting.

According to Wade, Foster’s intentional infliction of emotional distress claim must be dismissed because, he says, even if Erin’s assertion that she was tied up and then sexually assaulted by Wade is true (and Erin’s Answer to the lawsuit contains disturbing detail about the exact nature of the sexual assault in this case), that’s not enough to establish that Erin suffered “extreme” emotional distress.  Wade, through his attorneys, says that Erin—or anyone else victimized by a sexual assault—can only recover on this type of claim if they were so permanently traumatized by the assault that they were “precluded from performing daily activities such as working or doing household chores as a result” of the assault.  Wade complains that “Foster has functioned remarkably well for someone claiming to be severely emotionally distressed, i.e. performing daily duties, continuing to work as a burlesque performer, and … traveling … for both work and pleasure, etc. ”

The  argument  Wade’s attorneys make is disconcerting.  In their view, a sexual assault victim cannot  sue the person who assaulted her for causing her  emotional distress unless she is so shamed and traumatized by what was done to her that she cannot continue working. travelling or enjoying life.  But what I find more shocking is that, although I think that this argument is wrong, and I am confident that the trial court will find it to be wrong, Wade’s argument is not frivolous given what some of the older court decisions say.  Hopefully at least one positive thing will come from this case—clear precedent that, whatever may have been the law in decades past, sexual assault victims are now entitled to seek infliction of emotional distress damages from those who assaulted them without having to also prove, in addition to the fact that they were sexually assaulted, that the assault left them unable to function in society.

Wade’s argument as to why the defamation counterclaim should be dismissed is also noteworthy.  Erin says that Wade is guilty of defamation because he falsely stated that Foster had lied when she said that Wade had sexually assaulted her.  According to Wade, however,  because these statements were made by Wade’s attorney, not by Wade himself, and were made after Wade filed his lawsuit against Erin, his public statements that Erin is a a liar are “privileged” and, consequently, “even if the allegations are totally false and made with malice to spite Foster” they cannot be the basis of a counterclaim.  In other words, under Wade’s Kafkaesque interpretation of the law, although Wade is free to assert that any statement by Erin that he assaulted her is false and allows him to bring a defamation claim against Erin, Erin cannot file a claim for defamation against Wade for falsely saying that she lied because he has filed this lawsuit (and is speaking through his attorneys).  This is so, he says, even if Erin is able to prove beyond any doubt that Wade’s statements about her were totally false and made with malice to spite her.  Wade makes similar arguments as to why Foster’s abuse of process claim should be dismissed.

By deciding to fight back and to defend her First Amendment rights Foster, whose  personal financial resources are limited, has chosen a path of considerable financial hardship.  Of course, inflicting financial pain may have been Plaintiff Wade’s objective in filing this lawsuit.  Wade—who has now hired at least three attorneys to litigate this case—reportedly is independently wealthy. In any event, Erin’s friends have set up a a gofundme page to help defray her considerable legal expenses and I know that Erin greatly appreciates the donations that have been made on her behalf.