No Absolute Privilege for Accuser’s Allegations in High School Sex Misconduct Investigation,

If Alice accuses Bob of some misconduct (sexual or otherwise) in a statement to a third party, Bob can sue Alice for defamation. He would have to show that the statement is false, and generally speaking that Alice was at least negligent in making that allegation. But if he does show this, he would generally be able to prevail.

If Alice makes the accusation in some context where she is protecting some legitimate interest of her own or of the third party—for instance, the third party is Alice and Bob’s employer—then she might be protected by a “qualified privilege.” To oversimplify slightly, this basically means that she won’t be liable unless she knows the statement is false (or at least likely to be false).

But if Alice makes the statement about Bob in court, then she as a witness is generally absolutely immune from defamation liability. She might still be prosecuted for perjury, if the prosecutor concludes that she deliberately lied. But she needn’t fear a lawsuit from Bob. And the same is true in other “quasi-judicial” proceedings.

What happens, though, with Title IX proceedings, whether in K-12 schools or in colleges? Should complainants and other witnesses be entitled to the absolute privilege, as they are in court? Or should they be entitled only to qualified privilege? (It’s generally accepted that at least a qualified privilege would apply.)

Gonzales v. Hushen, decided Sept. 28 by the Colorado Court of Appeals, in an opinion by Judge Katharine Lum, joined by Judges Jerry Jones and JoAnn Vogt, holds that this depends on whether the Title IX proceedings offer enough procedural protections of the sort available in trials. In this respect, it follows the Connecticut Supreme Court’s recent decision in Khan v. Yale Univ. (which was followed three weeks ago by the Second Circuit in that case, applying Connecticut law). An excerpt:

Generally, statements made in the course of judicial or quasi-judicial proceedings are absolutely privileged and cannot form the basis for a subsequent civil claim if the statements “bear some relation or reference to the subject of the inquiry.” This is the case even if the statements “are false or defamatory and made with knowledge of their falsity.” …  “Quasi-judicial” decision-making, as its name suggests, bears similarities to the adjudicatory function performed by courts….

“The purpose behind a grant of absolute immunity is to preserve the independent decision-making and truthfulness of critical judicial participants without subjecting them to the fear and apprehension that may result from a threat of personal liability.” “A witness who knows that he might be forced to defend a subsequent lawsuit … might be inclined to shade his testimony in favor of the potential plaintiff, to magnify uncertainties, and thus to deprive the finder of fact of candid, objective, and undistorted evidence.”

At the same time, … the doctrine of absolute immunity is “justified” by features of judicial proceedings that “enhance the reliability of information and the impartiality of the decisionmaking process.”

If shadowed by the threat of liability, a witness might testify in a manner that would prevent a potential lawsuit, but would deprive the court of the benefit of candid, unbiased testimony. However, if the threat of subsequent civil liability is removed, witness reliability is otherwise ensured by oath, cross-examination, and the threat of criminal prosecution for perjury.

… Absolute immunity assures that “‘witnesses can perform their … functions without harassment or intimidation,’ while, at the same time, ‘the safeguards built into the judicial process tend to reduce the need for private damages actions as a means of controlling … conduct.'” …

[W]e are mindful of the need to encourage victims of sexual assault to report the crimes allegedly committed against them, particularly because such victims are often reluctant to speak out due to “shame, guilt, [and] embarrassment,” “concerns about confidentiality,” and “fear of not being believed.” We are also aware of the potential for abusers to use civil liability, or the threat of it, to silence or further victimize survivors.

At the same time, we recognize that the “mere allegation of sexual misconduct can be devastating to the accused. A determination that a person engage

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