Yesterday we reported the allegation brought against Kevin Clash, the voice of Elmo, that he had had sex with a 16-year-old boy. Clash denied the allegation and insisted that the accused, now 23, was 18 when they started having an intimate relationship. (The age of consent in the state is 17). Now, the accuser has withdrawn the complaint and said that indeed it was an “adult consensual” relationship. The question is whether Clash should not sue the individual for defamation and whether, if the accuser gave a statement to the police, whether he should be prosecuted for a false police report.
The alleged victim says that Clash engaged in sexual acts with him when he was 16 and Clash was 45.
The case is interesting in that the accused went to the Sesame Workshop to report that alleged crime. The program stated that “In June of this year, Sesame Workshop received a communication from a young man who alleged that he had a relationship with Kevin Clash beginning when he was 16-years-old. This was a personal relationship, unrelated to the workplace. We took the allegation very seriously and took immediate action.”
Clash issued the following statement:
“I am a gay man. I have never been ashamed of this or tried to hide it, but felt it was a personal and private matter. I had a relationship with the accuser. It was between two consenting adults and I am deeply saddened that he is trying to characterize it as something other than what it was. I am taking a break from Sesame Workshop to deal with this false and defamatory allegation.”
The accuser released his statement through his attorney in Harrisburg, Pa. The attorney stated that his client “wants it to be known that his sexual relationship with Mr. Clash was an adult consensual relationship.” That is a bit late, isn’t it?
Even without a police report, the accuser clearly defamed Clash by stating that he had committed a crime and was guilty of moral turpitude. The allegation of homosexuality is not a good basis for an action not only because of Clash’s public statement but because of changes in society. I have long discussed this issue in my torts class. Common law torts has always treated statements alleging moral turpitude and unchastity as per se categories of defamation. Accusing someone of being gay was long treated as a per se defamatory statement. It was not only viewed as alleging sexual impropriety and immorality but it was a crime in many states. One of the leading cases occurred in 1952 in a New York lawsuit. In Neiman-Marcus v. Lait, 13 FRD 311 (SDNY 1952), employees of that high-end store sued the author of a book titled “U.S.A. Confidential.” The book claimed that some of the models at the story and all of the saleswomen in the Dallas store were “call girls.” It further stated that most of the salesmen in the men’s department were “faggots.” The issue came down to the size of the group. With 382 saleswomen and models, the court found that the group was too large. However, with the 25 salesmen, the court found that an action could be maintained.
However, this is an example of how common law definitions change with society. Not only has the Supreme Court struck down laws criminalizing homosexual relations, but gay and lesbian citizens are now open and accepted in most of our society.
It is the allegation of a crime against a minor that is a per se category of defamation.
Then there is the question of a possible false police report. As noted yesterday, it was a bit odd that he went to Sesame Street rather than the police. However, it is assumed that Sesame Street called the police. If the accuser made a false police report, he should be prosecuted. We have previously covered false rape cases and discussed how police often do not bring charges against the accusers despite their ruining the lives and reputations of the accused (here and here). This includes the infamous Duke Lacrosse case and Crystal Mangum. I remain completely astonished that prosecutors, after finding that she lied about the rape, refused to prosecute her for the false claims. Ironically, the 2006 case was taken from the Durham D.A. Mike Nifong because he violated ethical rules and politicized the prosecution. Yet, North Carolina Attorney General Roy Cooper took the politically expedient move of refusing to indict Mangum. The result was that she was allowed to ruin the lives of players like David Evans, Collin Finnerty and Reade Seligmann and seek their long incarceration on false charges — only to be given a pass by the system.
This latest false accuser appears unlikely to face any repercussions for his actions. He remains anonymous so he will not even face public identification, let alone public prosecution. I am happy for Clash in being cleared of these allegations but a lawsuit might help deter others who seek to ruin former lovers with criminal allegations.