NY Judge Refuses to Dismiss Defamation Action Concerning Teacher-Student Gay Sex on Campus

New York State Supreme Court Justice Charles J. Markey has refused to dismiss a defamation lawsuit brought by a male professor at City University of New York's Queens College campus against an undergraduate who, alleges the plaintiff, has been telling people that plaintiff is having sex with another male student, age 17.  In the course of his ruling on the motion to dismiss in Rosen v. Robinson, No. 6896/2010 (N.Y.Sup.Ct., Queens Co., August 13, 2010), published in the New York Law Journal on August 19, Justice Markey repeats the outmoded assertion that "statements ascribing homosexuality, in the State of New York, are still considered defamatory."

The New York Daily News published an article on March 20, 2010, reporting on the filing of this lawsuit, which helps to flesh out the factual allegations of Professor Timothy Rosen, a practicing lawyer who teaches an undergraduate course on law and ethics at CUNY, as the article quotes from the complaint to a greater degree of specificity than the court's opinion.  The defendant, James Robinson, a "second career" student in his thirties who was a sophomore when the complaint was filed last spring, is alleged to have spread the story that Rosen was "having sex with a 17-year-old Queens College student" on the school's campus.  In response to the lawsuit, Robinson told the News that he hadn't made any public statements, but "I called him out privately on some bad behavior."  The complaint cites a December 14, 2009, e-mail from Robinson to Rosen, stating "it is not okay for you to be chasing a 17-year-old boy. It is unethical and quite frankly a little creepy."  (The News article does not specify Rosen's age, but a photograph accompanying the article on-line shows a youthful looking man.)   Rosen's complaint states, "Plaintiff is not nor has he ever been a pedophile," which seems a bit besides the point since the alleged object of his affections is over the age of consent and thus considered an adult in New York.

Justice Markey found that most of the specifications of Robinson's alleged statements in the complaint were not actionable, either because they were made directly from Robinson to Rosen in private or because they were not clearly attributable directly to Robinson.  (For the law of defamation to apply, a defamatory statement must be made to a third person.)  However, Rosen also alleged that Robinson had stated to another person, one Basil Gavalas, that Rosen was "having sex with a seventeen year old Queens College Student" on the campus, and Markey found that this statement could be actionable.  Interestingly, this statement does not specify whether the student is male or female, so one could not draw from it an imputation of homosexuality without referring to other statements that are not actionable.

Here's the interesting part of the case.  Justice Markey authorizes Rosen to replead his case making more concrete the homosexual aspect of the alleged defamatory statement, if he wants to rely on the New York doctrine that a false imputation of homosexuality is presumed to be defamatory without any need to show special damages.  But Markey also suggests that the statement could be defamatory on other grounds. "Certainly," he wrote, "false statements of a teacher having sex with a student can be ruinous to a member of the college faculty member's career [sic] or his ability later to secure tenure," citing cases from other jurisdictions where college faculty suffered adverse career effects due to their sexual dalliances with students.  Since 17 is the age of consent for sex in New York, the statement is not imputing criminality to Professor Rosen, so that would not be a basis for finding it defamatory.

However, I really doubt the continued viability of the old New York common law doctrine under which a false imputation of homosexuality is considered defamatory without any showing of special damages (actual harm to career or financial standing).   The doctrine was developed at a time when gay sex was illegal in New York, anti-gay discrimination was not prohibited by law, and gay people could be denied professional licenses on the basis that homosexual acts were crimes of moral turpitude representing a lack of good character.  But the Court of Appeals found the sodomy law unconstitutional three decades ago, and since then the state has legislated to ban anti-gay discrimination.  The Court of Appeals ruled more than three decades ago that being gay was not a disqualification for admission to practice law, and more recently the New York courts have recognized same-sex marriages contracted in other states, even though the Court of Appeals rejected a claim for same-sex marriage under New York constitutional and statutory law a few years ago, and most public employers in the state now offer domestic partnership benefits to same-sex partners of their employees.  In addition, of course, the US Supreme Court has ruled in favor of gay equal protection and due process claims in Romer v. Evans (1996) and Lawrence v. Texas (2003).  And we now have openly gay people in every profession -- including the judiciary and elective office.  It can hardly be said now that incorrectly calling somebody gay automatically damages their reputation in society.  So one wonders why New York courts continue to cite old cases to justify continuing this anachronistic doctrine.

Certainly it is true that under some circumstances a false imputation of homosexuality can be harmful to an individual's reputation, but the old doctrine presumes this to be so regardless of the circumstances and makes the charge actionable even if the plaintiff can't show that he has suffered any concrete harm as a result of the statement being made.  (That is what per se defamation is about.)  It seems to me that we've come to the point where courts should find that doctrine to be superseded by events, and should require plaintiffs to show that they have actually suffered some concrete harm before they can maintain a cause of action for defamation.

In this actual case, however, I think Prof. Rosen's allegation should survive the motion to dismiss solely on the basis that falsely stating that a professor is having a sexual relationship with a currently enrolled student (regardless of whether it is a same-sex or a different-sex relationship) is an imputation of professional unfitness, another category of per se defamation, and the notion that the homosexual element has any special role to play in the case should be rejected.  There is close to uniform agreement as a matter of professional ethics that teachers should not have sexual relationships with currently enrolled students, and on most campuses it is a potential disciplinary offense, and would be certainly be considered a sign of poor professional judgment.  It is unclear to me from reading the court's opinion and the Daily News article whether the complaint sought to rely on the New York common law doctrine on homosexual defamation in any event, or whether the judge raised this possibility sua sponte.  I'm suggesting that the homosexual angle should have nothing to do with this case.