Friday, October 1, 2010

N.J. Appellate Division Finds Party Defamed Despite Lack of Damages

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In W.J.A. v. D.A. (Docket No. A-0762-09T3), the N.J. Superior Court Appellate Division reversed and remanded a trial judge's dismissal of a plaintiff's defamation claim because he failed to prove damages.

As reported by the Web site of the Reporters Committee for Freedom of the Press (, the Appellate Division addressed the issue of: "whether Internet postings that accuse one of engaging in sexual misconduct are the type of defamatory statements for which damages may be presumed and therefore do not require the aggrieved party to prove actual harm to reputation."

The case initially arose in 1998 when D.A.'s nephew, W.J.A., sued him for allegedly sexually molesting him as a child. D.A. countersued for defamation, among other claims. W.J.A.'s suit was tossed because the statute of limitations had expired, but D.A. prevailed and was awarded damages for defamation and for frivolous litigation.

D.A. subsequently discovered that W.J.A. in 2007 posted on a Web site allegations that his uncle had sexually abused him, and again sued for defamation.  The trial judge found that the statements at issue were defamatory per se, but awarded summary judgment to W.J.A. because D.A. failed to prove damages beyond "individual subjective moral reactions."

The appellate division, however, ruled: "If there has been a wrong, there should be a remedy, and the time-honored approach of allowing such a case to be decided by a jury, which may then assess a proper amount of damages based upon their experience and common sense does not offend us."

In 2000, the N.J. Supreme Court found that in defamation cases that involved the actual malice standard (i.e., public figures, public officials or matters of public concern were raised), plaintiffs must prove actual damages, but left unanswered whether damages may be presumed where private individuals are involved and no issues of public concern are raised.

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  1. This case appears to have societal and natural justice issues that trump damages. And where does truth factor in?

    (1) W.J.A.'s suit against D.A. was dismissed because it exceeded the statute of limitations. Whatever that time limit was, it probably reflects the historical undervaluing of childhood sexual abuse and the time frames required for individuals to grow up, come to terms with it and then seek legal justice. Murder doesn't have a statute of limitation, yet sexual abuse, which destroys the spirit and soul of some victims, does. Time obscures memory and degrades evidence, which forms the basis for time limitations, but that holds for murder as well. Murder is held to be the most egregious wrong, understandably, but the law is still deficient in the realm of sexual abuse.

    (2)It's surprising that the time limitation wasn't recognized in 1998 by W.J.A.'s attorney, or by W.J.A. himself if he self-represented, before it got to court.

    (3)If W.J.A. was telling the truth, even though that truth wasn't proven in a court of law, how could the accusation be considered defamation? Doesn't that presume the accusation to be false? And classing W.J.A.'s attempted lawsuit as frivolous litigation seems vicious censure.

    (4)D.A.'s again suing for defamation on the 2007 posting and the subsequent rulings bring to mind something I typed out and saved several years ago because it made such an impression on me. It was from lawyer and author Scott Turow's 2003 book, "Ultimate Punishment" which dealt with Turow's reflections on dealing with the death penalty when he served as part of the Illinois Governor's Commission on capital punishment. Here it is:

    "I revere the enterprise of the law, but it does not function flawlessly. It neither finds the truth nor dispenses justice with the reliability it is obliged to claim. The law's sharp-edged rules never cut through the murk of moral ambiguity, nor do they fully comprehend or address the complexities of human motivation and intention."

  2. Thanks for your thoughtful and provocative comment. Re #2: it's possible that WJA's lawyer, if he had one, was incompetent. More likely, he thought he could "toll" the statute of limitations(SOL)through the discovery argument--the time that WJA was unaware he allegedly had been molested should not count toward the SOL. Re #3: Calling someone a child molester is defamatory per se, and as you note, truth would be a defense. WJA may not have sufficient evidence, which reduces the situation to a "he said, he said" in which WJA asserts and DA denies the alleged abuse occurred. Also, it's possible the accusations against DA are false. RE #4: I like Turow's quote (of higher quality than his writing generally), but again, WJA was on notice based on having lost a defamation counterclaim brought by DA in court, so to repeat the same accusations on the Internet if he can't back it up with sufficient proof is certainly actionable. RE #1: that's a tough one and your point is well taken. Still, murder is so repellent an act that it warrants special treatment and society shouldn't impose an SOL. Memories fade and witnesses and evidence vanish in all crimes (murder included), but kidnapping, battery, mayhem, and sexually assaulting an adult are all terrifying horrible crimes, like child sexual abuse,so I believe we can't dilute the SOL defense too much without undermining our criminal justice system.

  3. Thanks for taking time to so clearly explain possible reasons and other points of view. I now understand aspects I hadn't previously considered. Great teachers do this, and you're obviously one. I greatly appreciate it.