Pressing charges against 'slut list’ compilers or suing USC? Experts are skeptical

Utrecht-based criminal law expert Joep Lindeman was surprised to read Dutch media outlets mentioning legal charges against the compilers of the sexist list as a serious option. “It doesn’t seem like it’ll be that easy.”

The victims’ attorney, Ina Brouwer, mentioned in numerous media that the victims could sue for libel or slander. She also said that the doxing law, which prohibits the distribution of personal data to intimidate someone, may have been breached.

According to Lindeman, if it decides to prosecute, the public prosecutor will have to be able to prove, for all the indictments, that there was a certain intent to publicly harm the victims.

To prosecute for libel or slander, the list must have been made with the intention to publicly accuse someone of certain activities. As for doxing, the personal data must have been distributed with the goal of making that data publicly known and intimidating someone. 

Lindeman: “The question remains whether they intended to make the list public. Simply creating these lists – no matter how despicable – is not a criminal offence.”

Even if the judge pinpoints a criminal offence, Lindeman says it’s not always realistic to demand financial compensation for emotional damage. 

“Claiming financial compensation can only be done simultaneously to the criminal suit if it isn’t too complicated. In this case, the judge will want to have an exact image of what that emotional damage would be. It won’t be easy to express that in terms of money. Victims may be told that they’ll have to start a separate civil suit, which means they’ll have to go through two trials.”

Public prosecutor’s investigation
Lindeman does have his caveats. He doesn’t know what happened, exactly. “If the creators of the list shared it with the world themselves, it might be a different story. People say first-year students were ordered to compile the list by senior students. What was their intent?”

He's curious about the findings of the public prosecutor’s investigation. On Tuesday, the public prosecutor stated one of the victims has filed a complaint, but more are expected to come soon. The public prosecutor is currently investigating whether one or multiple people can be charged with criminal offences. Lindeman: “The public prosecutor can ask questions to those involved to get a clearer picture of what happened.”

However, the criminal law expert wonders whether a criminal lawsuit would be the best solution for the victims. “The outcome is uncertain, so you might be giving them false hope. Moreover, they’re probably not going to be happy about the publicity that comes with a case like this, not to mention the risk of the list being distributed even further.”

Lindeman states that going to court might not always be the right route. “In cases like this, outsiders have all sorts of opinions about what should happen, but don't go further than certain legal procedures. There are other options outside of court.”

He doesn’t necessarily have a suggestion at the ready. “First, they’ll have to search for a solution that takes into account what the women involved want. That might very well be something different from what indignant outsiders – myself included – or attorneys from the public prosecutor’s office feel.”

Are legal steps against the association an option? 

USC has been punished by the university. Can the victims hold the association accountable for the suffering caused by the PowerPoint presentation in a civil lawsuit?
Attorney and UU researcher Kirsten Maes says a step like that would fit into a trend in which "third parties" are more and more often held responsible legally. The victims would need to be able to prove that the student association is to blame. This may be the case if the association did not take enough precautions or provide enough supervision, she writes in an elaborate explanation online. 

If so, this would be a case of "secondary liability" which is used in other instances as well. For example, schools are held liable for bullying and sports associations are held liable for incidents on the field. When it comes to sexual harassment and abuse, third parties are being investigated more and more often too.

Society expects more than ever that organisations do everything they can to create safe spaces, Maes writes. “For instance, many have questioned the role of the production company after the incident on TV show The Voice of Holland. The same happened to football team Ajax after the technical director sent dick pics around.”

Does that mean it is realistic to win a lawsuit in this case? It’s too early to say, according to the attorney-researcher. Whether the student association could have acted differently than it did will depend on the "facts and circumstances", and we don’t know those yet.

Moreover, she emphasises that the simple fact that sexual harassment has taken place is not enough to convict them. Victims will need to prove a direct link between the fraternity's behaviour and the suffering caused by the existence and distribution of the list. “Secondary liability is a question of blame, not of risk or strict liability. The accused party needs to be at fault for a concrete accusation.”