PZ accuses Shermer of rape.

[Coito ergo sum]

The full cease and desist letter can be read here:
http://www.scribd.com/doc/159838891/she ... ter-to-pzm

Wow.... after reading that it's crazy that PZ hasn't complied with the demands to remove the post and post a retraction. What a fool.

The problem for Shermer is that he's a public figure, and defamation claims in the US are almost impossible to win. And, the cost would be very high. He would have to file a civil complaint and a motion for an injunction asking that the stuff be taken down. That alone would likely cost him $20,000 minimum to have any chance of success. To get the injunction he would have to prove that he is being irreparably harmed, that money damages will not suffice to cure his injuries, that the public interest is served by an injunction, and that he has a likelihood to ultimately succeed in a defamation trial which would mean that he would have to prove: (A) a false and defamatory statement, (b) intentionally uttered, (c) with malice on the part of PZ, (d) and damages, and typically the proof in defamation cases is held to a higher standard than normal civil cases. This is the NY Times v Sullivan standard in the US.

Almost impossible. Very tough. Very expensive. Great for the lawyers, because they get paid by the hour, and they have to set the client's expectations low. They would say "our chances of winning are slim, and the chances of you paying us a lot of money are 100%."

Larry Flint's legacy has pros and cons, it seems.

Depends whose ox is being gored, as usual. But, the reality is that Larry Flint's case had the added defense of "parody." I the case of Shermer, this is no parody. They are making serious accusations. Larry Flint was sued by Jerry Falwell, but I think Falwell admitted that the piece was humor and that nobody would believe he fucked his mother, etc.

The problem with Shermer's case, though, is that a person making an allegedly defamatory statement doesn't have the burden of proving it is true. The complaining person ,Shermer, has to prove that it is false. If women are making these complaints, then the defendant can say "I really was told this by a woman who said it happened to her." And, then there is "good faith" on the part of the defendant. The intent on the part of the defendant must be to defame the person. Intending to convey truthful information to warn others would be a defense, and to back that up PZ could claim that he believed the women in good faith and reported the info in good faith. If all Shermer can do is come up with a reasonably likely scenario where PZ might really be in this for the blog hits, well, it's possible he would win in a jury trial, but that's $20,000 to $50,000, and 12 to 18 months later, followed by PZ's inevitable appeal which adds another 12 months and $25,000 minimum.

So, nobody really wants to bring these cases, and when they are brought the defendant will always litigate the fuck out of it, and then they will file what is known as a motion for summary judgment raising all the free speech defenses and good faith defenses saying that the plaintiff can't present evidence of a prima facie case. Even if the defendant loses that motion, it still adds $10,000 to the cost of litigation for the Plaintiff.

and, then the Plaintiff has to prove money damages in a non-speculative way. So, if the long and short of it is that nobody really believes that Shermer did this, or that his reputation isn't being measurably injured by this bullshit, then his damages are pretty low. What's he going to get out of this? If people start dropping him from the lecture circuit, or if he has a marked decrease in book sales coinciding with these allegations, that would be decent proof of damages, but he has to make sure that he can make a decent case of "proximate cause" -- that is, that the damages are caused by the defamation, and not loss of interest in his lecturing.

These are tough cases, that almost always amount to rolls of the dice.

[Pappa]

Libel per se has been mentioned a couple of times in this thread. I looked it up and it seems to me Shermer would easily win a case on that basis.

[Coito ergo sum]

The full cease and desist letter can be read here:
http://www.scribd.com/doc/159838891/she ... ter-to-pzm

Wow.... after reading that it's crazy that PZ hasn't complied with the demands to remove the post and post a retraction. What a fool.

The problem for Shermer is that he's a public figure, and defamation claims in the US are almost impossible to win. And, the cost would be very high. He would have to file a civil complaint and a motion for an injunction asking that the stuff be taken down. That alone would likely cost him $20,000 minimum to have any chance of success. To get the injunction he would have to prove that he is being irreparably harmed, that money damages will not suffice to cure his injuries, that the public interest is served by an injunction, and that he has a likelihood to ultimately succeed in a defamation trial which would mean that he would have to prove: (A) a false and defamatory statement, (b) intentionally uttered, (c) with malice on the part of PZ, (d) and damages, and typically the proof in defamation cases is held to a higher standard than normal civil cases. This is the NY Times v Sullivan standard in the US.

Almost impossible. Very tough. Very expensive. Great for the lawyers, because they get paid by the hour, and they have to set the client's expectations low. They would say "our chances of winning are slim, and the chances of you paying us a lot of money are 100%."

Although, I agree that Shermer faces a difficult case if he persues a defamation suit. One hurdle he will not have to face is to prove malice on PZ's part. A false public accusation of a crime is "libel per se" and as such malice need not be proved in order to sue for general damages and not just specific losses.
http://legal-dictionary.thefreedictiona ... bel+per+se

Defamation per se would limit the amount of proof of damages needed, as allegations of commission of a crime or serious sexual misconduct are considered so innately harmful that damages are presumed. But, that doesn't get you to serious money. Serious money has to be proved. If the statement cannot be proven false, however, then the defendant would still win. The defendant raises truth as a defense, saying Shermer is a criminal and did rape or engage in serious misconduct, or that what was reported is actually what the women reported, then they have a defense.

Like if a newspaper prints women's reports that a mayor of San Diego sexually harassed them. He denies the allegations. It's an accusation of serious sexual misconduct, and would be defamation per se if it is false. Has he been defamed? The women may be defaming him if they are lying. But, is the paper lying for accurately reporting their allegations?

[Pappa]

How would a person prove they didn't rape someone in such a way that it would constitute proof in a defamation case? It's the classic "can't prove a negative".

[Coito ergo sum]

How would a person prove they didn't rape someone in such a way that it would constitute proof in a defamation case? It's the classic "can't prove a negative".

That's what is so difficult in defamation cases, especially for public figures.

However, the burden of proof enters into it. The proof needed is not conclusive proof. It's a "preponderance of the evidence." That means the plaintiff has to prove to the jury that "probably" the accusation is false.

How would that be done?

Well, they would question the persons involved:

PZ -- you said here that Michael Shermer raped a woman, yes?

Yes.

Who was that woman?

Jane Doe.

How do you know Jane Doe was raped?

I don't. I only know what Mary Roe told me.

What did Mary Roe tell you?

She said that Shermer filled her glass up with wine too much and flirted with her inappropriately.

Did she tell you that she had sex with Shermer?

No.

Did she tell you that Shermer had sex with her without her consent?

No.

Did she tell you she was raped?

No, she told me she was coerced into a place where she could not give consent.

Does that mean she was raped?

It sounds like it to me.

Etc. Etc. Etc.


Then they can interview the woman involved.

Did Mr. Shermer rape you?

Not exactly.

What do you mean, not exactly?

We had sex, but I couldn't give consent?

How? Were you tied up?

No. He gave me several glasses of wine.

Were you passed out?

No.

Were you drunk?

Yes.

Etc. Etc.

Then any other witnesses could be interviewed, and if the jury found that the allegation of rape was probably false, then the plaintiff wins the element of falsehood. being called a rapist is definitely defamatory. The blog constitutes publishing the statement. Then the rest of the proof will be evidence of how much Shermer was hurt by this, and he'll testify as to people questioning his honor and reputation, nasty communications he received, loss of gigs here and there, etc.

So, he can win, but depending on how the testimony shakes out, he can also lose because the jury can find that it's six of one, half dozen of the other on who is telling the truth. If they can't tell if the statement is false or true, based on the testimony, then they may have to find that the Plaintiff, Shermer, did not prove his case by a preponderance of the evidence. That kind of thing.

That's the difficulty with the case. Or, a difficulty. It's all testimony. You have to bring the case before you have all or even most of the information you need to win. You can't depose the witnesses first, you have to file a civil complaint and then subpoena people. Then you go out there and try to get your case built on testimony.

[gebobs]

In the case of a person getting too drunk to take care of herself, and another person taking advantage of her while she's in that state, I don't think responsibility is an either/or thing. Both are responsible for their part. When it comes to culpability though, it's the person who violates the rights of another individual by acting without consent who has committed a crime.

Ah, but what if they're both drinking? Shermer's not a teetotaler is he? Who's to say Shermer doesn't feel the same way? Was he raped?

It sounds to me like the woman had a case of too much drink followed by bitter regret. Sorry you had to do the walk of shame after leaving his room and all but you bear some responsibility here too. You may want to consider treatment or AA if you can't control your drinking and your consuming so much that you can't "consent". For crap sake, you're supposedly an adult not some high school girl drinking her first bottle of Boone's Farm.

[tattuchu]

Ah, but what if they're both drinking? Shermer's not a teetotaler is he? Who's to say Shermer doesn't feel the same way? Was he raped?

It sounds to me like the woman had a case of too much drink followed by bitter regret. Sorry you had to do the walk of shame after leaving his room and all but you bear some responsibility here too. You may want to consider treatment or AA if you can't control your drinking and your consuming so much that you can't "consent". For crap sake, you're supposedly an adult not some high school girl drinking her first bottle of Boone's Farm.

Gebobs, you're conveniently forgetting that women are helpless victims by default, and that sex is something filthy and unpleasant and damaging and to be avoided. Oh, and that men are inherently evil and scary. And stuff

[tattuchu]

Shermer: "She kept tipping back that glass and expecting me to refill it! Does she think I'm made of money? Holy smokes. And then she kept flirting with me, would not stop. She was tenacious and simply would not take no for an answer, so we went to my room and I did my duty. But I didn't like it. And afterwards, after the filthy deed was done, she got up and dressed and left, leaving me cold and alone and crying on the bed. I've never felt so vulnerable and alone and taken advantage of. And this happens every time I go to a conference! The women at these things are relentless!"

[laklak]

Moral of the story is don't fuck anyone without a signed consent form.

He: Would you like to have sex with me?
Her: Yes.
He: I'll have my people contact your people, standard contract?
Her: Standard contract, no anal, oral by mutual consent.
He: Done. Meet back here next week?
Her: Great. Ciao!

[Coito ergo sum]

In the case of a person getting too drunk to take care of herself, and another person taking advantage of her while she's in that state, I don't think responsibility is an either/or thing. Both are responsible for their part. When it comes to culpability though, it's the person who violates the rights of another individual by acting without consent who has committed a crime.

Ah, but what if they're both drinking? Shermer's not a teetotaler is he? Who's to say Shermer doesn't feel the same way? Was he raped?

I don't think I wrote what you quoted. But, I think that the facts of a given case would be controlling. If Shermer was too drunk to take care of himself, or passed out, and a woman fucked him, then I guess he would be raped. But, there might be some question of believability -- I mean, passed out drunk guys generally can't do much banging.

The issue that I have with the feminist view of drunk sex is they play a rhetorical game with the verbiage. They use a too-general term "drunk" and the want to call any sex with a "drunk" woman "rape." Then if you inquire as to "how drunk was she? Tipsy? A few drinks? Slobbering? Passed out?" they accuse you of apologizing for raping unconscious women, as if drunk automatically means unable to consent.

I think the response to a woman who says "he kept filling my glass up" is "so what? Were you too drunk to know what you were doing?"

I think sometimes, also that the feminists -- in line with my theory that the rabid feminists are really just recasting 50s paternalistic cultural norms and calling them feminism -- feminists are casting women as less capable and weaker than men in every way. That's the only conclusion we can reach when we see Shermer as flirting and refilling wine glasses, and the women are delicate flowers who are unable to withstand his flirts and long pours.

It sounds to me like the woman had a case of too much drink followed by bitter regret. Sorry you had to do the walk of shame after leaving his room and all but you bear some responsibility here too. You may want to consider treatment or AA if you can't control your drinking and your consuming so much that you can't "consent". For crap sake, you're supposedly an adult not some high school girl drinking her first bottle of Boone's Farm.

Bingo. The point still remains, though-- was evidently and/or apparently unable to consent? You know -- meeting a girl in a bar who is drinking and going home and fucking is not rape because she was drunk. It would be rape if she was evidently unable to consent and you fucked her anyway. However, being subjectively a lightweight with booze and having sex is not rape either.

[Coito ergo sum]

Moral of the story is don't fuck anyone without a signed consent form.

He: Would you like to have sex with me?
Her: Yes.
He: I'll have my people contact your people, standard contract?
Her: Standard contract, no anal, oral by mutual consent.
He: Done. Meet back here next week?
Her: Great. Ciao!

Another moral is to steer well clear of Skepchicks, A+ers and Freethoughtbloggers. If a woman aligns herself in any way with that ilk, repossess the drink you bought her and tell her to buy her own fucking wine.

[Bella Fortuna]

They have their own fucking whine already.

[Pappa]

Shermer: "She kept tipping back that glass and expecting me to refill it! Does she think I'm made of money? Holy smokes. And then she kept flirting with me, would not stop. She was tenacious and simply would not take no for an answer, so we went to my room and I did my duty. But I didn't like it. And afterwards, after the filthy deed was done, she got up and dressed and left, leaving me cold and alone and crying on the bed. I've never felt so vulnerable and alone and taken advantage of. And this happens every time I go to a conference! The women at these things are relentless!"

[rachelbean]

But, there might be some question of believability -- I mean, passed out drunk guys generally can't do much banging.

Passed out, no. But black-out drunk, as in can't remember anything the next day, I definitely have experience to the contrary

[Xamonas Chegwé]

But, there might be some question of believability -- I mean, passed out drunk guys generally can't do much banging.

Pegging?