False allegation of homosexuality is defamatory, judge rules

While the New York Legislature appeared poised to pass a law legalizing same-sex marriage, a Broome County judge has allowed a man to proceed with a libel suit against a woman who alleged he was gay, finding that under appellate case law, the imputation of homosexuality was defamation per se.

Mark Yonaty brought the defamation action against Jean Mincolla, who claimed she was "advised" that Mr. Yonaty was gay or bisexual. She in turn sued Ruthanne Koffman, who repeated the allegation to the mother of Mr. Yonaty's girlfriend. Mr. Yonaty claims that once his girlfriend heard the story about his purported sexual orientation, she broke off the relationship. Mr. Yonaty denies he is gay.

In Yonaty v. Mincolla, 1003-2009, Broome County Supreme Court Justice Phillip R. Rumsey (See Profile) rejected the defendants' summary judgment motion, and held that the assertion of homosexuality constituted defamation.

"While the law may, at some point, change in response to evolving social attitudes regarding homosexuality, the existing law in New York, as expressed by the Appellate Divisions, which this court is bound to follow, is that imputation of homosexuality constitutes defamation per se," Justice Rumsey wrote, citing 2007 Appellate Division, Second Department, decision Klepetko v. Reisman, 41 AD3d 551, which cites a 1984 case, Matherson v. Marchello, 100 AD2d 233. The judge also noted the 1986 case, Dally v. Orange County Publications, 117 AD2d 577, which refers to a 1964 decision, Nowark v. Maguire, 22 AD2d 901.

http://www.dailybusinessreview.com/PubArticleDBR.jsp?id=1202497706181&hbxlogin=1

I always hear "truth is a defense" against defamation but I remember business law classes from eons ago and I thought there was a "malicious intent" fact - even for true statements.

The example I remember was maliciously spreading the "truth" someone has a "loathsome communicable disease" can still get you a slander suit IF malice is present.

Does the old school laws view "gay" the same way?

As a gay man, I obviously don't see "gay" as derogatory. But I do know people who have been fired for being "outed" so a "stigma" still does exist.

This is why I love DU - looking forward to other's ideas on this.

to others?

was blind.

However, I suppose if you were working as a gay escort, being accused of being straight could effect your ability to do business and therefore be actionable.

Or, as in the situation above, you were going to get gay married and your partner left you because someone told them you were straight.

But why would he believe them, when (as far as I know) there are no gay people leading secret lives as being closet straights.

Although I have my suspicions about GOProud.

'But why would he believe them, when (as far as I know) there are no gay people leading secret lives as being closet straights.'

They just learn to suppress their true self. hiding within a marriage, having children, living the life everyone expects them to live. Not many parents sit and dream of their children being gay. They sit and dream of their children growing up to be good people, finding someone to love, someone of the opposite sex.

Until ALL people are allowed to be the people they are meant to be, this country and world will not progress.

Just wondering if you misread what I was talking about.

Me bad:spank:

:shrug:

Not sure what that has to do with this subject?

actionable? I believe the question posed to you was supposed to prompt some reflection.

The other poster asked how I would FEEL. That has no bearing in law so I was confused.

Now YOU mentioned "actionable".

To YOUR point: Because people are discriminated against LEGALLY in half the states in the union for being gay - and discriminated against ILLEGALLY in the rest.

I get a little myopic sometimes. ;)

in the post I replied to.

I'm just wondering if it would ever be an issue.

If someone told everyone around town I was gay, I don't think it would matter to me, because I know it isn't true, and what I do with whom is my own bidness.

I was just curious if you would react the same way if someone were painting you as straight.

My initial post isn't about how I "feel" about that specific allegation. My original post was about how I "feel" about the ruling and/or applying the law in that manner.

Would I care if someone labeled me as straight? I just have to tell you what a bizarre question that is to someone who grew up pretending to be straight - including the first twenty years of my career life.

The answer is no. I've never known anyone fired, kicked out of their home, or kicked out of their apartment for being straight.

What makes something "defamation" or not is, aside from the truth of a claim (I could say "allegation", but a claim is only an "allegation" when you accept the premise of the negativity of the claim), the subjective opinions of others if they believe the claim. If that subjective opinion derives from irrational and bigoted sentiments, does that negate the existence of defamation?

Could a self-professed vegan falsely "accused" of eating meat claim defamation?

Defamation laws don't protect my feelings - the laws are in place to protect one's reputation in the community.

I suppose if the person lived in a vegan community (commune?) they may have a case. Absent such circumstances, no defamation exists(in a primarily met eating society).

...in your own personal social and/or business circles. You might not have to go quite so far as living in a vegan community to measure up to such a standard.

At any rate, I don't know the exact specifics of the law (which may well vary some from state to state), so I'm just musing aloud about the general concepts surrounding defamation.

... telling the truth, is this not a defense?

If she can show that someone did indeed "advise" her that the plaintiff is gay, is this not a defense?

And then in THAT case, shouldn't the dude be suing the person who "advised" Jean Mincolla that he is gay?

Not that this would make her any less of a bad person.

Edit to add: and I appreciate your point. Thanks!

but there's a grain of truth in it as well (like one of the other posters said). If you are perceived as gay, then you will be discriminated against because of it. Hence why we, the LGBT*.* community, have been shouting about equality and its importance.

I am stepping back and I support the LGBT community however they feel about it. I am having trouble wrapping my head around what to make of it.

Because, in a perfect world, the response should be "Who CARES if he's gay?"

The judge's ruling itself isn't insulting because he's just following the law. The law is what is essentially insulting to the LGBT*.* community.

... slanderous allegations of prostitution and carrying loathsome communicable diseases.

I "get" how being accused as gay can be damaging. I just don't feel like being grouped in with unchastity, prostitution, disease and other nasty categories.

Ironically, if I'm not mistaken, the change will probably have to come when some homophobe accused of slandering a victim by calling him "gay" appeals to a higher court that "my insult wasn't THAT injurious because gay is acceptable". If the higher court agrees and offers protection to the homophobe the case law will change.

Or can the legislature change this?

Its the same as when people have played the dirty trick of accusing a white politician of having illegitimate black children and spread the rumor among people who might have a problem with it. There is nothing inherently wrong with a white man having a child with a black woman. There is nothing wrong with being gay. But if either of those things don't pertain to you and someone is spreading such rumors as an attempt to stir a social controversy, then thats definately defamation. Intention is what matters.

The fact that some, or even most people would not take such accusations as a bad thing is not the point. If the goal was to create a negative view even within a small group, that's all that matters.

So for instance ... you are straight and work for a Catholic church. If people deliberately spread the rumor that you are gay, and you get fired for that, or you lose promotions because of it ... the fact that being gay should be a non-issue is not the point. Those who spread the rumor did so to hurt the individual within a specific context.

Calling a woman a slut would be similar I think. On one hand, why can't a woman have sex with who ever she wants? But in many work environments, that would be seen as in appropriate, and so spreading such rumors could hurt ones career.

Its the misrepresentation with the intent to do damage that is the issue.

win same sex marriage cases and other equal rights cases for the LGBT community? For as long as they do not have equality under the law it could be considered defamatory because if believed you could loose rights.

But I guess that isn't how the ruling was framed.

Let's face it: false allegations are bad.

Gay, Straight, Hetero, Homo whats the difference really? I happen to think everyone is bisexual and I rationalize that by stating that 100 percent of the population masturbates, masturbation by its definition is having sex with the same sex so the next time a fundie nut says anything is wrong with homosexual sex then I will remind him of what he is holding in his hand when he masturbates....

Your ill-informed personal mythology is not reality.

Gays and lesbians are attracted to the same gender, bisexuals are attracted to genders similar to ours and ones different from ours, and hets are attracted to the opposite gender. Really, this is not rocket science. Gay, lesbian, and bisexual identities are about more than who we fuck, thanks.

And for fuck's sake no, "everyone" isn't bisexual. This is as damaging and obnoxious a myth as "bisexuality doesn't exist", because the net effect is the same: bisexuality is trivialized and bisexuals are made invisible. Same-gender attraction is not uncommon for many people to experience in their lives, and sexuality does exist on a spectrum (and is indeed fluid in many people), but fleeting attractions do not a bisexual make. And no, jerking off doesn't make you a goddamn thing but someone who jerks off.

Also, asexual people exist, some of whom do not masturbate at all. There are even sexual people who don't do it.

It is just my opinion, I try to rationalize and make sense of things in simplistic form. I have no desire for all the convoluted emotional crap (DRAMA). You can have sex with, relationship with or fall in love with whoever you want its nobody's business but your own..

cases where this is true). I believe your basic premise is false (and therefore your argument is not supported).

(do you fantasize about touching yourself when you masturbate?)

It is simply logic.

To answer you question, sometimes if there is a mirror nearby then yes, most likely.

If I could auto-fellate I would, wouldn't you? But that doesn't define me as gay, straight or Bi...

Thats my point the labels who cares gay, straight we are all the same humans needing both emotional and sexual fufillment, how you come to meet those needs is nobody's business but your own.

Maybe saying we are all bisexual is wrong wording, mayb multi-sexual, there that probably fits better.

and incorrect. It's is interesting that your masturbatory time has as its base a strong dose of narcissism, but no it is not the general case.
Otherwise liquor stores would be selling more mirrors than porn mags.

You are correct that masturbation has nothing to do with sexual preference and as such should not even be a premise for the argument.

That lawsuit is pretty dumb.

One, the case is about whether calling someone gay is libel without a showing of damages. Most of the time libel consists of two prongs, a statement must both be false and damaging. This case basicly said that being called gay is damaging. In New York, I think that is a hard case to make. In North Carolina, on the other hand, I think it is a much easier case to make.

Two, the above has nothing to do with one's opinion of gays. In places where gays can be fired simply for being gay, can have their kids taken away simply for being gay, and a host of other discriminatory problems it is pretty hard to say being thought of as gay isn't a disadvantage.

It's been a long time since college business law classes but, IIRC, per se defamation is such that it only has to be uttered/printed.

If I accuse you of being a "crook", I can be liable for defamation. You have to prove damage to your reputation. If you are a CPA you may have a lower hurdle for damage than, say, a car salesman. This not to be confused with the actual MONETARY damages determined at trial.

If I commit one of of the "per se" categories of defamation the damage is assumed. The controversy in the OP story isn't that being called gay is bad - I think everybody gets that as viewed through a societal/historical lens .

The real heartburn (for me) is over the fact the judge effectively still groups us in with moral turpitude, loathsome disease and unchastity. The lowest of the lowest as it pertains to defamatory remarks - not just "oh he's gay and might lose his job over the allegation"


From wiki:

Obviously, this is common law so NY will be (slightly?) different but the general idea applies.

what this case was saying was that accusations of being gay was itself harmful. Again, I think in New York that might be a hard case to make but in many other states, not so much.

... doesn't matter. The plaintiff isn't required to submit evidence of damage because it is a per se defamation. Since he doesn't have to prove damage, he can now move on to the damages - whatever they may be (mental anguish? loss of companionship? loss of appetite and resultant doctor/counseling bills etc.).

Maybe someone further up the trough in the appeals court (NY Supreme?) will make new case-law and use your logic - logic I agree with, BTW.

But as it stands, we are grouped with the lowest of the low. Ironically, not only do we not have "special rights" like everyone says but straight people have "special protections" from being accused of being one of us.

I'm reading that the label has caused a heterosexual relationship to flounder because it was based on a the partner assuming a couple/relationship that could not continue should it be homosexual. The relationship could not continue if one side of the partnership was not 100% committed to a hetero relationship. I personally think the same defamatory suit could be made if the rumor was that one partner, was a incurable nymphomaniac, or a prostitute with on going clientele, or even a hoarder with a disgusting nose picking habit. The defamations cause the relationship to end.

I'm thinking of students who spread rumors or call other students gay as a bullying tactic.

Could be useful.

BUT ... I suppose the plaintiff MIGHT have to overcome the "reasonable man" hurdle. Meaning a reasonable person would have to believe the person actually intended to accuse a person of being gay. For instance, calling someone gay on the playground during a recess hopscotch game is probably not be enough.

Now a concerted effort by some high-school bully plastering flyers on the school hallway walls alleging so and so is gay? That's a different story.


Kinda on the subject: The people spreading rumors of Andrew Britebarts loathsome communicable disease - (syphilis) - are opening themselves up for a per se libel suit. Probably wouldn't happen but you never know when it comes to some douche bag with deep pockets backing.

But I'm not a lawyer.

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