A Lawyer Explains How to Take a Sexual Misconduct Case to Court in the Music Industry
We talk to civil rights attorney Lisa Bloom, who has represented accusers of Bill O’Reilly, Bill Cosby, and Donald Trump, about what's needed, what happens, and what's at stake when trying sexual harassment and assault.
Amidst the dark, chaotic cloud that has been this week's news cycle, Taylor Swift reminded us that maybe not everything America stands for has gone to pot after a jury voted overwhelmingly in her favor in a civil sexual assault case against radio DJ David Mueller; Swift had accused Mueller of groping her during a meet-and-greet at a 2013 concert in Denver. Seeking a symbolic $1 in damages, the pop star says the goal was to hold Mueller accountable and leverage the case as an example to women and other victims of sexual misconduct who may resist publicly coming forward.
Swift joins a growing chorus of women in the music industry and beyond are speaking out about sexual assault and harassment, but few of these accusations have led to trials like hers. Two out of every three sexual assault cases in the US go unreported, according to the Rape, Abuse, and Incest National Network, and surveys show that while at least one in four women have experienced workplace sexual harassment, 70 to 90 percent will not make a formal complaint. The reasons behind this vary, ranging from fear of retaliation and career harm to wariness about a complicated legal system with varying limitation statutes and burdens of proof.
Swift's own verdict came around after four years of legal sparring between the two parties. Her case, which included the advantage of photo evidence, is considered relatively straightforward. Other cases, such as Kesha's prolonged, recently dismissed sexual abuse suit against Dr. Luke, Priscilla Rainey's sexual assault suit against The Game, and high profile cases like those against Bill Cosby and Bill O'Reilly, illustrate just how varied and complex these cases can be.
We called up veteran civil rights attorney Lisa Bloom, who has represented accusers in sexual misconduct cases against O'Reilly, Cosby, and Donald Trump, to get a better understanding of what is needed, what happens, and what is at stake when such cases head to trial.
Noisey: Let's start with the basics. When a victim encounters sexual misconduct or harassment in the workplace, what options that are available?
Lisa Bloom: So I've been doing sexual harassment cases for three decades. And when somebody comes to me, we go through all of the facts, and then that drives our analysis of what her options are. If it's verbal sexual harassment, then it's not criminal, unless she's been threatened. But if it's just sort of your garden variety verbal sexual harassment, there's no criminal option. And if she was physically assaulted, then of course, yes, there is the criminal option. She has the option of going to the police, and handling it that way. As well as a civil case.
What almost everybody prefers to do is the civil case alone. Even if there is the criminal option, and that's because they get to control it. If I come in and represent someone and we have a sexual harassment case, we are going to make all of the decisions together—about when to file, who to name, how to handle the case, whether to settle it, whether to take it to trial, whether to talk to the media about it, so it really impacts them. And it really empowers the woman, to make those choices for herself. She also has the option to complain internally at the company, and go to human resources and have them handle it. That's usually a good idea before filing a lawsuit, or before we come out on her behalf, or even send a letter that we represent her. It's usually a good idea to complain internally at the company in writing, and keep a copy so you can show that you made that effort.
Victims might be hesitant to come forward because oftentimes, these situations occur behind closed doors, and there isn't much evidence to bring to a complain beyond one person's word against the others.
The case might start out that way, but we do a great deal of work with my team here at the Bloom Firm, reviewing all of the evidence and the witnesses before we come out and say that we represent her and try to reach a settlement or file a lawsuit. So, while an incident may have happened behind closed doors, and they're the only two people who were there, generally my clients tell somebody immediately, like their mother or their best friend, or their therapist, and there's a record of that. A lot of sexual harassment happens electronically now, whether it's by text or by email or a social media post, so there's that kind of evidence. There may be an ear witness, someone who's in the next room and heard something. We have a case right now that's in trial in San Diego, a domestic violence case, a wife who alleged that she was very brutally physically assaulted by her husband, and there was a housekeeper in the next room who heard one of the incidents. So when you do a little digging, you can often find some corroboration.
What would you advise someone to do following a closed-door incident?
The first thing you need to do is talk to an attorney as soon as possible, and find out what their rights are, because every case is different, facts are different. Then the attorney can advise them on their particular facts, what's the best course of action. So that's a private confidential conversation, no one's going to know what happened in that call. The sooner that they reach out to an attorney the better, because there are time limits. A lot of people contact me after the time limit has already expired. Some places it's one year, some places it's three years. But, you know, people contact me many many years later.
If they don't want to reach out to an attorney, they should follow their company's internal policy—y'know, pull up your company handbook, who are you supposed to report sexual harassment to, write something out, just the facts—who, what, when, where, why, how, what happened. And give that to usually your human resources department, or the head of the company, and keep a copy, and let it get handled that way.
In the music industry, a lot of people work outside of the structure of a traditional company and many relationships are more peer-based, or don't quite fit the traditional employer-employee dynamic. What recourse do these victims have when they find themselves in that kind of situation, and there's no HR or supervisor to report to?
If somebody is sexually assaulted, it's generally a good idea to go to the police. I advise that they go with a support person, whether it's a family member or friend. It's hard to do it, so get somebody to go with you who's going to give you that support. If somebody at a company has violated your rights, you can complain at that company, whether you are an employee or not. So for example, in one of my cases against Bill O' Reilly at Fox News, I represented Wendy Walsh. She was never an employee at Fox News, she was a guest on the program. She was hoping to become an employee, she was hoping to get the job, but she never did. And she was surprised when I told her, you can still file an internal complaint at Fox News about what happened, and we did. We did that together in April of 2017, which was four years after her incident. And they were forced to do an investigation of her claim, and before we called in her complaint to the hotline, of course I had to [vet] all of her witnesses, and all of her evidence [so] everything was lined up and ready to go. And when they asked us to cooperate, I was ready to do that, and ready to provide them with everything they needed, and ultimately that's what led to Bill O Reilly's termination at Fox News. I think people should worry less about technical requirements, and focus more on standing up for their rights. And again, if they go talk to a good attorney, that attorney can usually give them some ideas of what they can do.
In the past year, many members of the music industry have turned to social media to speak out about experiences with sexual harassment, often because they feel like they might not have any other recourse, or are worried they might that they might be blackballed from the industry if they take a more formal route. How do you view social media as a platform for calling people out on this?
I think that social media is a tool, like anything else. And you can use it well, or you can use it poorly. So I'm not afraid of it, and I have plenty of trolls who come after me and say a lot of nasty things, which I just generally ignore. So anybody who's out there in the public eye is going to get that.
When you have someone like Kesha, for example, who alleges some pretty egregious behavior, and it looks like she's not going to get a remedy through the courts, why shouldn't she use what she got, which is her platform, to stand up for herself, and to stand up for women's rights! A lot of young women and girls look up to people like Kesha or Taylor Swift, and when they stand up for their rights and for women's rights, I think it sends a very powerful message. Mischa Barton for example, who also has a lot of fans who are young women and girls, she and I are standing together against revenge porn, and we got a positive response. A lot of people said, "Gee, I didn't know I could do anything about this!" And part of why we did it, and we used our social media platforms, was to educate women about what's possible.
As long as you're speaking the truth, I think it's good to speak out. The risk in saying something on social media is if it's not true, you can get sued for defamation. But if it is true, then go for it! I think far too often, women are told to sit down and shut up, and even if we're not told that directly, we feel that. We feel that we're not supposed to say certain things—it's not nice, it's not ladylike, we're scared. Well, to hell with all that. Life is short, and it's a very powerful thing when you speak your truth, and I think women should do a lot more of it.
Can you explain a little more about the procedures and outcomes of Kesha's case versus Taylor Swift's case, and what makes those cases different, beyond their basic stories? Why does one seem so complex and drawn out compared to the other?
I'm not really an expert on Kesha's case, I haven't studied it directly, so I'm not sure I have a good answer for that, I'm sorry. It's tied up with contracts and entertainment law issues, I think that has a lot to do with it, but other than that I can't provide commentary on that.
Taylor Swift's case is not complicated at all, and I salute her. I'm very impressed with what she's done. A lot of celebrities would just say, y'know, "I don't want to get involved with this, I'm going to let it go." And then this guy sued her, and she pushed back, and counter sued him for one dollar. She said look, he grabbed me, and that's what happened, I'm not backing down. If I have to go to trial so be it, and she went to trial, and she testified beautifully. They tried to shame her, embarrass her, and question what really happened, and she stood her ground, and I think she was terrific.
Resource wise, what does it take to get that far—to bring it to court? A lot of people are saying, she herself admitted, that's she's fortunate to have the money, and resources, and audience, and backing to get that far. If you're, let's say, just a low-level assistant at a label, and you want to do this, and you're maybe not making much money, what's needed?
So it's definitely a huge advantage in our legal system to have money. No question about it. In Taylor Swift's case, she can get the best lawyers, and she can fully prosecute her case to the bitter end, without having to worry about money. But really, what shines through in her case, is her! And her testimony on the stand. All the best lawyers in the world aren't necessarily going to help you, when you're up there on the witness stand, and you have to answer questions. A lot of people get rattled, and they get embarrassed, and they have prime statements used against them, and none of that happened with her. So, as to can a regular person go through this process? Yes! That's what I do every day in my law firm, is take regular people through the legal system, and generally we do on a contingency. So, if they can't afford us, we get paid at the end if and when we'll win.
Once a situation like this gets to trial, what is going to be considered as both sides make a case towards a decision?
They have to look at the credibility of the witnesses, and they have to look at the evidence. And who it supports. So in Taylor's case, I thought she testified very well. There is also photo, that was kind of the center of the case, where it certainly appeared that he has his hand on her rear end. But was it under her skirt, was it over her skirt? He's got his arguments to make, and they look at all of that. They look at statements that she's made to others. I think her mother testified, so they take all of that into account, just as they would in any case. They asked her, why didn't your bodyguard do something, why didn't you call the police? These are all the typical questions that sexual assault victims get, and she said, y'know, why didn't your client not put his hand on my ass to begin with? She was very good. I think it certainly helped Taylor that she seems to have been very personable on the stand, very real, and unshakable in her testimony.
Have you witnessed or experienced sexual misconduct in the music industry? We want to hear from you. Contact Andrea Domanick confidentially at andrea (dot) domanick (at) vice (dot) com. PGP: bit.ly/2tZT0WT . Follow Andrea Domanick on Twitter.