Appeal of Steven Galloway lawsuit pits author's fight for reputation against accuser's right to speak out

Both Steven Galloway and the graduate student who accused him of sexual assault — known only as A.B. — claim to have considered suicide in the years since the allegations first surfaced.

Both once considered themselves creative people. But Galloway, the best-selling author of novels like The Cellist of Sarajevo, says he can no longer put pen to paper, "crippled by the fear of how a reading audience is likely to react."

A.B. says she can't make art without "running it by legal counsel for fear of being sued."

Those statements come from the volumes of documents filed in the legal battle that appears to have drained them both.

It's a conflict not likely to end anytime soon as Galloway's defamation lawsuit against A.B. and her supporters moves to the B.C. Court of Appeal in a case that promises to test a person's right to fight for their reputation against a self-identified survivor's right to publicly discuss her version of events.

'Compelling' interests on both sides

Galloway, A.B. and more than a dozen people he has accused of calling him a rapist all recently filed appeals of a B.C. Supreme Court decision rejecting a bid to dismiss the case as an attempt to use the courts to silence critics.

A.B. and those accused of repeating her accusations say the lower court decision was mistaken. Galloway wants to reinstate the few claims the judge did throw out.

It's a case that's already had widespread publicity, sparking a Canadian literary war that drew writers like Margaret Atwood to the front lines of a debate over the way the accusations were handled by the University of B.C., where Galloway chaired the creative writing program.

Legal experts believe the case will only continue to grow in significance.

"The interests on both sides are quite compelling," says Justin Safayeni, a lawyer at Stockwoods in Toronto who focuses on media and defamation law.

"Someone who's been accused of sexual assault or physical violence has a very strong interest in defending the reputational harm that flows from those accusations, and on the other side of the equation, people who are speaking out because they say they have suffered sexual assault or violence also have a strong interest in making that known."

Lillianne Cadieux-Shaw is an associate at St. Lawrence Barristers, a Toronto law firm that specializes in both defamation law and the representation of sexual assault survivors.

She says the two areas of practice have increasingly blended together in recent years with a rise in the number of men — like Galloway — suing women who accuse them of sexual assault.

She believes B.C. Supreme Court Justice Elaine Adair made the right decision in allowing the case to move ahead, but wishes she had said more about the difficulties faced by women in reporting allegations of sexual assault.

"I do have concerns about whether 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 the CBC.

"Unfortunately, where it leaves survivors is that they may speak out about their experiences and get sued for it."

'The dynamic of a mob'

According to the decision, Galloway and A.B. had a "personal relationship" with each other from 2011 to 2013 while she was attending the creative writing program. They were both married at the time.

"The true nature of that relationship is hotly contested," Adair wrote.

"Mr. Galloway has publicly described it as a consensual affair.  A.B. has described it as 'an ongoing abusive relationship' and 'traumatic bonding,' and not consensual at all."

A report commissioned by UBC was unable to find — on a balance of probabilities — that a sexual assault happened.

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

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

He is suing A.B. and her supporters — including UBC professors, students and social media activists — for implying that he raped, sexually assaulted and physically assaulted her.

The writer is not suing over accusations levelled through the confidential channels set up specifically to investigate complaints of sexual assault.

Galloway told A.B.'s lawyer that "none of us would be sitting here today" if A.B. and her supporters hadn't gone beyond that process to notify the larger world of her accusations.

'Acceptable roadkill'

Adair made it clear she was not judging the merits of Galloway's claims, but instead conducting a balancing exercise required under rules designed to discourage strategic lawsuits against public participation — known as SLAPP suits.

The ruling is 242 pages long. A handful of paragraphs set out the tension between the two sides.

A.B.'s lawyers argued that allowing Galloway's lawsuit to proceed "will have far-reaching, reverberating effects that will extend well beyond B.C. ... 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, by contrast, paints that position as absurd, saying that, "the attitude that a person should be able, with impunity, to fling an accusation that someone is a rapist and perpetrated sexual assaults needs to be set straight."

"It treats Mr. Galloway as acceptable roadkill, and his reputation as expendable ... it ignores the dynamic of a mob and the collective effect of many punches."

'Who can make a better case for their truth?'

Both Safayeni and Cadieux-Shaw say the Galloway case highlights the perils of online activism and echoing 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 advocate — only has 300 Twitter followers.

"[The case is] tethered to this idea that the mob as a whole has this impact of collectively destroying a reputation," Safayeni says.

"It's the only case I've seen that deals with this in depth and it contributes to a general chilling effect that will flow 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 court cases, in terms of sets of facts proven on a balance of probabilities.

"Unfortunately, that often diminishes the truth of the experiences that happen to women, because we all know that what's provable is very difficult in these situations," says Cadieux-Shaw.

"In that case, it just becomes who can make a better case for their truth? The courts are not really the best place for a woman to share their experiences."

'Locating a middle ground was impossible'

Galloway was awarded $167,000 in 2018 after an arbitrator found that UBC had breached his privacy rights and damaged his reputation.

He claims his notoriety has cut his annual income to $30,000 or less: "My agent has advised me there is no point in even pitching any novels given the stain on my name."

A.B. says she wants to "vomit" every time she looks at the mountains of legal papers the case has accrued.

"I don't know in good conscience that I would tell women who have been sexually assaulted to come forward," she swore in one affidavit.

"I feel that I would be doing other sexual assault victims actual violence if I encouraged them to come forward."

Cadieux-Shaw and Safayeni say the case is a reflection of the cost of a defamation lawsuit in terms of both money and emotion invested.

"It goes to a broader point," says Safayeni.

"Bringing a defamation lawsuit is brutal. It's brutal because, on the road to any potential vindication of reputation there is an extremely public, extremely lengthy and extremely expensive path."

Cadieux-Shaw says male claimants do have something to gain, whereas women who accuse them face only the prospect of harrowing litigation for their troubles.

"When women find out that there is also the possibility that their perpetrator might bring retaliatory litigation against them ... why would any woman report?" she says.

"I wish the court had recognized the immense burden litigation has on anyone, but certainly on survivors or individuals who have gone through this kind of thing."

The conflict will continue to polarize as it works its way up through the justice system — a fact Adair herself acknowledged at one point in her decision.

"Locating a middle ground was impossible," the judge said of the public debate.

"The possibility that someone could both think Mr. Galloway had not been treated fairly by UBC and have deep sympathy for victims of sexual assault went unrecognized."