Thanks for sharing all of this! A few comments about the idea for a litigation fund—I am a lawyer but cannot give anyone legal advice for various reasons. [Edit to add: All this is from a US-based perspective given the focus in Silicon Valley. Other countries, especially the UK, are less protective of speakers.]
My understanding is that litigation financing is possible, but complex.
One challenge with impact litigation for individual (human) clients is that the client always must be in control of the litigation. The client’s objectives may not always be aligned with the broader interests of the impact-litigation fund. For example, the witness/client may not want to settle with an NDA up front, but may change their mind after months to years of gruelling litigation.
The litigation fund seems potentially targeted toward a particular type of case—one in which the abuser has enough money to make litigation financially viable, and the facts and nature of the abusive act would likely result in a sizable-enough judgment for financial viability. That’s not a reason not to do a fund, but it would be important to be upfront about these limitations. Specifically, I am thinking about how to minimize the risk that witnesses might feel a sense of invalidation because their cases were not selected.
Taking appropriately-selected quick settlement cases might not be a bad idea. In theory, one could craft an NDA that would allow for statistical reporting in a way that does not identify the abuser. I am thinking there would be some value to being able to say “An individual in AI settled a claim of sexual abuse against another person in the AI community for a sum between $X and $Y” even if names don’t get named. That might be better than would-be perpetrators having no awareness of the breadth of litigation activity and believing that the risk of adverse consequences to them is extremely low. Moreover, some witnesses don’t want to go through a public court process, and settlement without signing some sort of NDA may be difficult in many cases.
One possible intervention—which would be purely charitable but possibly more cost-effective—would be committing to defensive litigation assistance. You mention that “[m]any victims want to go on the record, but are afraid of defamation lawsuits.” My view is that filing defamation suits is usually to almost always net-negative to a plaintiff who is well off, at least where the defendant has much more limited financial resources (but does have funding for legal defense).
The Stresiand effect can be powerful in increasing awareness of the allegation, and the most likely verdict in the Court of Public Opinion will be “maybe the rich plaintiff did it, maybe they didn’t.” Plus one would think many of the abusers have stuff to hide, and both publicity and civil discovery have a way of bringing the skeletons in one’s closet to life (in the latter case, a prior NDA may not offer much protection to the abusers). Having a lawyer write a scary-sounding letter threatening to sue the victim for defamation, on the other hand, is a cheap and non-public way to bully people who can’t afford a legal defense.
Thus, I predict that offering defamation legal-expense insurance to selected victims who want to speak out could be a cost effective way to empower them. I think relatively few abusers would actually go through with filing a defamation suit against someone whose legal bills they knew were covered. Therefore, making a binding commitment to cover selected victims’ legal defense in a defamation suit should have a fairly low expected cost per case (although you’d have to find someone to underwrite the risk).
Thanks for sharing all of this! A few comments about the idea for a litigation fund—I am a lawyer but cannot give anyone legal advice for various reasons. [Edit to add: All this is from a US-based perspective given the focus in Silicon Valley. Other countries, especially the UK, are less protective of speakers.]
My understanding is that litigation financing is possible, but complex.
One challenge with impact litigation for individual (human) clients is that the client always must be in control of the litigation. The client’s objectives may not always be aligned with the broader interests of the impact-litigation fund. For example, the witness/client may not want to settle with an NDA up front, but may change their mind after months to years of gruelling litigation.
The litigation fund seems potentially targeted toward a particular type of case—one in which the abuser has enough money to make litigation financially viable, and the facts and nature of the abusive act would likely result in a sizable-enough judgment for financial viability. That’s not a reason not to do a fund, but it would be important to be upfront about these limitations. Specifically, I am thinking about how to minimize the risk that witnesses might feel a sense of invalidation because their cases were not selected.
Taking appropriately-selected quick settlement cases might not be a bad idea. In theory, one could craft an NDA that would allow for statistical reporting in a way that does not identify the abuser. I am thinking there would be some value to being able to say “An individual in AI settled a claim of sexual abuse against another person in the AI community for a sum between $X and $Y” even if names don’t get named. That might be better than would-be perpetrators having no awareness of the breadth of litigation activity and believing that the risk of adverse consequences to them is extremely low. Moreover, some witnesses don’t want to go through a public court process, and settlement without signing some sort of NDA may be difficult in many cases.
One possible intervention—which would be purely charitable but possibly more cost-effective—would be committing to defensive litigation assistance. You mention that “[m]any victims want to go on the record, but are afraid of defamation lawsuits.” My view is that filing defamation suits is usually to almost always net-negative to a plaintiff who is well off, at least where the defendant has much more limited financial resources (but does have funding for legal defense).
The Stresiand effect can be powerful in increasing awareness of the allegation, and the most likely verdict in the Court of Public Opinion will be “maybe the rich plaintiff did it, maybe they didn’t.” Plus one would think many of the abusers have stuff to hide, and both publicity and civil discovery have a way of bringing the skeletons in one’s closet to life (in the latter case, a prior NDA may not offer much protection to the abusers). Having a lawyer write a scary-sounding letter threatening to sue the victim for defamation, on the other hand, is a cheap and non-public way to bully people who can’t afford a legal defense.
Thus, I predict that offering defamation legal-expense insurance to selected victims who want to speak out could be a cost effective way to empower them. I think relatively few abusers would actually go through with filing a defamation suit against someone whose legal bills they knew were covered. Therefore, making a binding commitment to cover selected victims’ legal defense in a defamation suit should have a fairly low expected cost per case (although you’d have to find someone to underwrite the risk).