Can I sue for defamation and mental anguish?

by Beatriz
(Chicago, IL)

I am in a relationship with a divorced man. He was divorced in 2009 and I met him in 2010. We moved in together in 2011. Fast forward to 2012 and his ex-wife is still making my life (and his) miserable. She denied him visitation rights to his 2 children and made petty excuses of why he couldn't see them. Eventually he gathered enough money to take her to court. He wanted a set schedule for visitation rights.

During this process this woman accused him of being a drug user, she said there was a domestic violence report against him during the time they were married. Finally she agreed to let him see the kids but claimed that I could not be around them because I was "violent in front of them and I was emotionally abusive to them."

After these statements there was a restraining order put against me and I was not allowed near the children (ages 12 and 10). After investigation by a 3rd party appointed attorney, it was found that her accusations were false and the attorney saw no reason why the restraining order should remain in the visitation agreement. With that said they lifted the restraining order and I was able to be around the children.

On a Tuesday after the first weekend they slept over our place, I ran into this woman at a local Target. She harassed me and engaged me in a verbal altercation which lead to a physical altercation. I made a police report where it clearly says I was the victim and she was the offender.

Can I sue this woman for defamation? She not only said in court that I was violent and verbally abusive to her children, she told everyone that she knows in our neighborhood about what was going on in court and how she had to put a restraining order against me. People in my neighborhood became hostile toward me and my boyfriend because they believed her allegations.

My boyfriend owned a restaurant down the street from our place and business dropped dramatically during this time. His usual customers stopped ordering. She texted all his family members telling them I was a threat to her children.

This has caused my reputation to be seriously tarnished and caused me mental anguish. I am currently going through acupuncture to help with the stress. I also took a couple of semesters off school because it all became too much.

Do I have a case against this woman? Can I/we sue? Thanks.

Visitor Question:
Disclaimer: Information provided in our response is NOT formal legal advice. It is generic legal information based on the very limited information provided. Under no circumstances should the information in our response, or anywhere else on this site be relied upon when deciding the proper course of a legal matter. Our response does NOT create an attorney-client relationship. Always get a formal case review from a licensed attorney in your area.

ANSWER for "Can I sue for defamation and mental anguish?":

Beatriz (Chicago, IL):

The closest you might come to a defamation case is if you can prove you aren’t a drug user. Even then if the woman merely said you were a “drug user” you’ll have a problem. Being accused of taking drugs is not defamation unless the woman said you were an “illegal drug user”.

Being called an illegal drug user is a direct reference to “moral turpitude”. Being accused of actions which question your moral turpitude can be the basis of a defamation case.

Let’s take a look at the other accusations you say were made by the woman...

1. Her application for, and the subsequent issue of a Temporary Restraining Order against you is not grounds for defamation. At most it might be considered an “abuse of process” but that would only be if the woman perjured herself in the application itself.

2. If the basis of the woman’s application for the Temporary Restraining Order was her opinion you were "violent in front of them (the children) and emotionally abusive to them" that may be the basis of a defamation case, but to prove your case you would have to go to trial and prove by a “preponderance of the evidence” the woman’s claims of violence and emotional abuse were patently untrue.

Also, unless you can prove those statements were made to a third party, and not just to you, AND those statements resulted in your direct personal or pecuniary loss, the statements are not legally actionable.

3. The verbal and physical altercation at Target may be the basis of a personal injury case, but to prevail you would have to prove some physical injuries. The “verbal altercation” in and of itself is not sufficient grounds for a defamation case.

4. Finally, you have no standing to sue over the drop in customers at your boyfriend’s restaurant. Any claim against his ex-wife would have to be initiated by him. Also, the statement about your boyfriend being a drug user can not be used by you to prove you were defamed.

---

To prove your losses would require a trial, where you would have to convince a judge or jury the statements were defamatory, AND prove the type of personal or pecuniary losses you suffered as a result.

There are some defamatory oral (slanderous) and written (libelous) statements which are considered “per se” defamation. Per se means the statements were so serious on their face, the victim doesn’t have to prove the statements caused personal or pecuniary loss. Merely making the statements entitles the victim to compensation from the party who uttered or printed the statements.

Traditional examples of defamation per se are:

- Falsely claiming you committed a crime of moral turpitude (i.e. prostitution, theft, embezzlement, sexual assault)

- Imputed that you were, or are unchaste

- Claimed you suffer from a loathsome disease

The woman's statements do not seem to fall into the per se category.

The attorney you refer to was likely the “guardian ad litem” appointed by the court to represent the best interests of the children.

Statements made by the woman during the court proceedings are considered “privileged.” This means what she said during her testimony can not be used to prove defamation. Of course, if she wholly falsified her testimony she might have committed perjury.

The police report you filed seems to have been done unilaterally. As a result, any information you entered into the report will be merely your opinion, and therefore not reliable evidence of defamation.

The statements the woman made to neighbors about what went on in court, and of her having secured a restraining order against you are factual. Merely reporting on court proceedings and the existence of a restraining order are not legally actionable. The resulting perceived hostility you suffered is also not legally actionable.

The diminished business in your boyfriend's restaurant is his loss, and not yours, and thereby not legally actionable by you.

Finally, in all claims of defamation, whether by slander or libel, truth is always an absolute defense.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

P.S. Please help us out by sharing this site...

Comments for Can I sue for defamation and mental anguish?

Click here to add your own comments

Defamation per se claiming person is a rapist.
by: Anonymous

Can anyone answer this for me please?

My son got a girl pregnant that he only knew for 2 months. I know, bad decision. He broke up with her not because she was pregnant, but because she was and still is abusive and had been sleeping with other boys, which she admitted to in text.

He is now seeing another girl he has known for years, who lives in another state. The baby's Mother and her friends are sending statements as facts that he tried to rape her, that he has been having sex with her, that he is abusive to her, etc.

These statements are being emailed over the net, as well as similar statements posted to her Facebook page which she has kept public.

Because it is interstate/over state lines (she and her friends have identified themselves as the people doing this in their statements, and they searched the girlfriend out/stalked her), can this now be considered a felony because it is being done over the internet through a computer/cell phone and over state lines?

She is trying to destroy his life in any means she can, not because he has not stepped up to the plate to be a father, which she has so far refused paternity testing for, but because he does not want to be with her. Its killing my family and I and we are at a loss.

Proving the case
by: Law Guy

Beatriz does not have to prove her innocence. Instead, she has three (3)choices. Beatriz can:

1. Ignore the statements; or

2. Call or write to the woman and demand an apology, or more likely, demand financial compensation for the defamation; or

3. Take legal action

The woman's statements weren't criminal in nature, so she can't be arrested. They also weren't defamation per se.

What are the chances the woman will say "You're right. I apologize," or "I will be glad to pay you whatever amount of money you think is fair." In the real world, that would never happen.

So what's Beatriz next step? She will have to sue the woman for defamation. By suing, Beatriz is not having to prove her innocence. Instead, Beatriz will be proving the woman defamed her.

So there it is - the proverbial standoff. The "he said - she said," or in your case, "she said - she said" scenario.

So the case finally gets to trial. The judge will say "Beatriz, you are the plaintiff. The defendant has denied making the statements or says they were true, and therefore not defamatory. I have no idea what happened out there and I can't decide anything until I see some evidence."

Since Beatriz filed the lawsuit, she will have the "burden of proof" to prove to the court by a "preponderance of the evidence" that the woman made the statements and they were defamatory.

At that point, Beatriz would probably have the neighbors testify the woman made the statements.

Well there it is. Beatriz isn't having to prove her innocence, but rather she will be proving the woman defamed her. This is how defamation and almost all other litigated civil cases proceed.

Prove her innocence?
by: Anonymous

Why on number 2 would she have to prove her innocence to the court of the allegations? Does this in fact mean she is guilty until she proves herself innocent?

Click here to add your own comments

Return to Defamation of Character Questions

How Much Is Your Claim Worth?

Find out now with a FREE case review from an attorney...

How Much Are Your
Injuries Worth?

Find out with a
free attorney review:

TYPE OF ACCIDENT
AUTO ACCIDENT
PERSONAL INJURY
WORKERS COMPENSATION
MEDICAL ERROR
YES! I WANT FAIR COMPENSATION