She called the man who sexually assaulted her a rapist. Now he is suing for defamation

By Lindsey Bever at Washington Post

Yee Xiong, 24, sits for a photo at her attorney's office in Sacramento, California. She is being sued by the man who sexually assaulted her. Photo / AP
Yee Xiong, 24, sits for a photo at her attorney's office in Sacramento, California. She is being sued by the man who sexually assaulted her. Photo / AP

For four years, 24-year-old Yee Xiong fought to put it all behind her.

The sexual assault. The questions about what role she may have played in it. Two hung juries and, finally, a plea deal that sent her attacker to jail.

Just when Xiong thought it was all over, it seems to be starting again.

Xiong is now being sued for defamation by her attacker, 26-year-old Lang Her, who claims that she and her siblings tarnished his reputation when they called him a rapist online in reference to the assault. Xiong's attorney, McGregor Scott, is set to appear this week in a Northern California courtroom to try to get it thrown out by citing their First Amendment rights, according to Sacramento Bee.

Her was not convicted of rape; instead, he pleaded no contest to felony assault and was sentenced in July to one year in jail, according to news reports.

"We were shocked, speechless," Xiong told the Bee about the lawsuit. "Who in their right mind would do this? I felt re-victimised. I want to move on with my life and this is still holding me back."

Her and Xiong's lawyers could not immediately be reached for comment.

In July 2012, Her and Xiong, who both grew up in the same Hmong community in Marysville, California, not far from Sacramento, were students at the University of California at Davis.

Xiong told authorities that after a night of drinking at an off-campus apartment, she fell asleep and later woke up "feeling intense pressure on her lower body and intense pain," according to court documents cited by the Sacramento Bee at the time. She said her arms were pinned at her sides, and she could not speak - but she did not say why. She said Her was having sex with her without her consent.

Although Her has continued to deny that he had sex with Xiong, DNA from his semen was found in Xiong during a medical examination, according to the court documents.

Explaining her actions

As The Washington Post's Peter Holley reported at the time, Xiong said her struggle has not only been about moving past the night she was assaulted but also trying to explain her own actions: Why did she go to his apartment in the first place? Why did she stay after she claimed she was assaulted? And why did she let him drive her home the next morning?

Xiong responded in a powerful statement that she read at Her's July 19 sentencing, saying, "I do not exist for anyone's entertainment purposes or to fill in anyone's curiosity."

"I am also not here to explain to you why I was at Lang Her's apartment in the first place, why I didn't do anything else other than what I did, and why I didn't call the police sooner. Even if I did take what people think of as 'the right steps,' we'd still be here. The truth is, I shouldn't owe anyone an explanation! But I'm here."

Xiong added that the burden of proof is almost always on the victim, which "further perpetuates our rape culture that continues to excuse rapists for their heinous actions."

"Going over to a friend's house never justifies someone getting raped. Drinking with friends until drunk never justifies someone getting raped. Sleeping next to a friend in the same room never justifies someone getting raped. And believe me when I say that those who believe that someone's actions made them deserve rape are cowards and fools - just like Lang, including those who have continued to protect him.

"That woman who was raped in 2012 could have been your daughter, sister, niece, aunt, and cousin."

On July 19, Her was sentenced to one year in jail and five years of probation and ordered to register as a sex offender and receive sex offender counseling, according to reports.

Defamation claim

That same day, while Xiong and her family were celebrating closure in the case, one of Her's relatives handed Xiong a defamation claim, stating she and her siblings made "false and defamatory" statements against him on Facebook during his trial, according to the Sacramento Bee.

Xiong told the Associated Press that she saw the civil lawsuit as a "slap to the face" and a way for Her to "continue to harass my family and me."

Although Xiong's attorneys declined to discuss the Facebook posts with the AP, the Sacramento Bee reported that on May 21, 2015 - the day Her's first trial resulted in a hung jury - Xiong's older sister, Ger Xiong, posted several photos of Her on Facebook along with a note saying that "Rapists destroy lives. Rapists hurt all of us, not just their victims."

Ger Xiong also posted a photo of Her with a message, "We will not be silenced. We will fight for justice against Lang Her, who is a rapist," which was shared by Xiong and two of her other siblings, according to the Bee.

Xiong told the AP that she and her siblings were not trying to tarnish Her's reputation.

No bigger stain

However, Eric Rosenberg, an Ohio-based attorney who has represented clients in similar civil lawsuits, told the AP that defamation in these cases is real.

"There is no bigger stain on a person in this culture than being labeled as a sexual assailant, and that's what they're labeled as," he told the news agency, adding: "They can't get into school, they can't get into the military - a lawsuit's their only way out."

For that reason, Laura Dunn, executive director of SurvJustice, a nonprofit that advocates for victims of sexual violence, told the AP that victims should avoid naming their attackers outside of the courtroom.

But Emily Austin, from the California Coalition Against Sexual Assault, added that the issue is when the threat of defamation lawsuits keeps victims quiet.

"The impact could be, if these become more common, that survivors are going to double-think reporting, afraid anything they're saying could be grounds for a lawsuit against them personally," she told the AP.

In Her's case, legal experts said that despite the fact that Her did not receive a rape conviction, it may be difficult for him to claim defamation since Xiong and her siblings could argue that they were only commenting on a case that had already been widely publicised by the news media.

According to the Sacramento Bee:

"Since the early 1990s, speech protections have been enhanced by the California Legislature because legislators feared that a preponderance of lawsuits were having a chilling effect on free speech. The Legislature created language that allows judges to quickly toss defamation cases if the judges determine that the plaintiff has little chance to win."

"A lot of states achieve summary dispositions of cases that can otherwise take up judicial and legal resources," Lisa Pruitt, a law professor at UC-Davis, told the newspaper. "It's really hard to win these cases because of speech protections."

In any case, Xiong said she questions Her's motivations.

"When I saw he was asking for $4 million, I had to laugh," she told the Bee. "I thought it was a joke."

- Washington Post

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