On Apr 15, 7:50 am, nadin...@mailinator.com wrote:
> There seems to be a lot confusion about what is it I was saying, and
> what advise I was looking for, so I'm going to (completely) restate
> it.
OK, I read and replied to your 4/15/07 discussion with Stan Brown before reading this here post. It changes a few things, but not much, in what I said a few minutes ago.
> Assume the following are the facts:
> 1. A father committed several acts (chronic/continous for several
> years) of child abuse on the author many years ago. (Not sexual.)
If you, the author, are writing a true first person autobiographical account, and are strictly compliant with the facts, then it's not libelous. But that doesn't prevent your Dad from suing you if you publish it. Have you really considered whether this is the best way to work out your demons?
Did you know that filing a civil lawsuit and/or bringing criminal charges would also get your message "published" (in the sense that your complaint, especially if you the victim want it not to be sealed, becomes a public record that others can read and cite regarding the facts you allege) and that such court filings are by definition in USA _not_ libelous because they are privileged as communications made in court?
Or is it that you don't want to sue or criminally charge your Dad, just humiliate him publicly _without_ suing him but also without letting anyone other than your circle of friends know that it is you who are writing the story or he who is its subject? Or what is it, really? In addition to working with a local lawyer, has your therapist cleared this approach as something that would really be in your best interest therapeutically?
Or, if your goal is simply to publish a semi-autobiographical novel based on "what you know" as the gurus all suggest fiction writers should do, in order to raise public consciousness about a general problem, you could go with a truly fictionalized account in which it would _not_ be possible to identify your Dad as the model for the story's villain, as suggested in my earlier post. But then we have the problem of you being identifiable as the author.
> 2. Neither the father nor the author could prove it today either way,
> as there are no witnesses
Yes there is. YOU, the victim are a witness and so is your Dad. But maybe you just mean it would be _hard_ to prove because there are no _independent_ witnesses to what happened. That would not prevent you from bringing suit if you believe the facts as you intend to testify to them to be true. And he _could_not_ successfully sue you for libel for testifying in court, and/or writing in your legal complaint, about the facts of the abuse as you recall them. He _could_ sue you if you write a book about it.
> 3. A few of the authors friends know he wants to write the book, and
> they already know the details. These friends clearly would not side
> with the father, and his image would not be further lowered in their
> minds by the publication of a book.(Just assume that's the fact here,
> that the jury wouldn't find it was further lowered.)
So, who is it exactly that you want to inform about this incident that doesn't already know? We get back to the fish-or-cut-bait conundrum I discussed in my earlier post as to what your real intentions are.
> 4. No other person would be able to figure out who the book is about,
> as the author uses a pseudonym and all the names are changed.
That alone, as others have pointed out, is not enough to insulate you from liability.
> There is
> no matching physical description, occupation, or anything else that
> would identify him.
If that's really true, then you may be safe, but please hire a lawyer to "vet" your manuscript for possibly defamatory content _before_ you publish it. Seems to me the only way you could avoid letting anyone figure out it's him is to be absolutely sure there is no identifying information, and the only way to do that is to change enough of the facts (locations, dialogue, etc.) that no one could possibly link it to him OR you. In which case you would have a completely fictionalized account but then you would need to worry that, if somehow Dad _did_ find out you wrote this book, the changed facts could ironically expose you to liability. IMHO the biggest danger in doing this as a true first-person story is that if anyone ever DOES find out that _you_ wrote the book then they would be able to tell that it is about you and your father just from that fact of authorship alone. Which makes me understand why you wanted to use a pseudonym, but that is a pretty flimsy protection.
> 5. The intent of writing the book is not to defame, but to point out
> problems with a particular state's laws, procedures at school
> (reporting suspicion, etc), the stigma against questioning a parent -
> the idea being that writing a book about a common, serious problem
> might get some laws changed.
Then you want to write a type (1) roman a clef as discussed in my previous post, NOT a Philippic "outing" your father as an abuser. Keep that in mind as you write the book.
> The question is, can the author/publisher prevail in a suit against
> them if the father was to discover the book had been published?
Yes, they "could". I decline to speculate whether they "would". That's what trials are for. What is indisputably clear is that your proposed enterprise is fraught with risk and that you ought to take each step very carefully and with the aid of specific, focused, paid legal advice.
> Also, regarding #2 above, there is a disagreement in the posts as to
> both the standard, preponderance vs. proof w/o reasonable doubt, and
> who has the burden of satisfying the standard,
If you sue your Dad in a civiil suit for perpetrating the abuse, then you the Plaintiff have to prove by a preponderance of the evidence that it happened, that your Dad is the one who did it, and that you were hurt by it.
If your Dad sues you for libel, AND if he is not a public figure, then he the Plaintiff has to prove by a preponderance of the evidence that you defamed him, but he makes out a "prima facie case" (i.e. he meets that burden) just by putting on evidence showing that you publicly accused him of an infamous crime. The burden then shifts to you the defendant to prove by a preponderance of the evidence as an affirmative defense that what you wrote about him was true.
If your Dad _was_ a public figure, he would have to prove by "clear and convincing" evidence that you acted "with malice" in writing about him, i.e. that you acted with "reckless disregard for the truth." If you were careful in checking your sources and only published what you were told, without making stuff up, you the author would be safe in a public figure libel case even if your facts turn out to be objectively false. Malice may also be a relevant issue in a non-public-figure case if the Plaintiff is claiming punitive damages (to punish the malicious defamer) in addition to compensatory damages (for repayment of the tangible AND intangible losses you caused him by reason of the defamation). Publishing without provable malice will _not_ protect you from a libel suit in a non-public-figure case, but may limit your punitive damages.exposure.
If you bring criminal charges against your Dad, then the State, as the prosecuting entity, has to prove that your Dad was guilty of all required elements of whatever crime they charge him with, "beyond a reasonable doubt."
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
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