Marcos Bretón

Is this sex offender really suing his victim because she called him a rapist on Facebook?

Yee Xiong 24 in her home in Davis on Friday, July 22, 2016.
Yee Xiong 24 in her home in Davis on Friday, July 22, 2016. rbenton@sacbee.com

It’s not every day that a registered sex offender sues his victim on his way to jail because she and her family called him a rapist on Facebook. But that’s what Lang Her, 26, did just before he started serving his one-year sentence for the assault of Yee Xiong, who is 24 and lives in Davis.

“I’ve been in the law for a long time and I’ve never heard of anything like this,” said McGregor Scott, the former Sacramento-based U.S. attorney who is representing Xiong pro bono. Scott will be in a Marysville courtroom on Monday seeking the dismissal of the $4 million defamation suit that Her filed against Xiong and three of her siblings.

Both Her and Xiong are former UC Davis students who were raised in the tightknit Hmong community of Marysville. Their families once were friendly. This was before the rape accusation, the two hung-jury trials, Her’s expulsion from UCD, and the publicity their case has received.

According to court documents, Xiong told police that she went to a party at Her’s off-campus apartment on July 9, 2012, and had fallen asleep in a bed after drinking too much. She awoke in the pre-dawn hours to find her arms pinned at her sides and Her having sex with her.

During the investigation, Her’s story changed more than once. He went from claiming that nothing had happened on the night in question to saying he and Xiong had kissed but had not had sex. However, his semen was found inside Xiong. Her has continued to deny that any penetration took place, and his attorneys have used Xiong’s behavior after the incident – staying at Her’s apartment for the rest of the night and allowing him to give her a ride back to campus in the morning – against her in court.

Her was dismissed from UCD after he had violated an order not to contact Xiong. After the second hung jury, Xiong was prepared to go to trial yet again. Instead, a deal was reached where Her pleaded no contest to assault by means of force likely to produce great bodily injury, a felony.

On July 19, the day Her was sentenced, Xiong delivered an emotional testimonial to the pain she, her parents and 11 siblings had endured. “My name is Yee Xiong and I am here to reclaim my worth and my story,” she said.

Xiong’s mother and father spoke in the courtroom in their native language, and though there were no translators on hand, the rage they expressed was powerful.

That day, Yolo Superior Court Judge Paul Richardson concurred with a one-year jail term for Her. Richardson sentenced Her to register as a sex offender and to receive sex offender counseling for the term of his five-year probation. “There needs to be a signal sent,” Richardson said.

When the sentencing was over, Xiong exchanged embraces with her family and Yolo County victims advocates in the lobby of the new courthouse in Woodland. After four years of pressing her case, and after experiencing social isolation, Xiong finally felt that some level of justice had been achieved. Then, suddenly, one of Her’s sisters slipped a piece of paper in her hand. It was his defamation claim.

Xiong had savored less than 30 minutes of satisfaction before learning that the legal fight with Her was not over. “We were shocked, speechless,” Xiong said. “Who in their right mind would do this? I felt re-victimized. I want to move on with my life and this is still holding me back.”

It’s not unheard of for people accused of sex crimes to sue their accusers for defamation. In 2015, Ray McDonald – a former player for the San Francisco 49ers – sued a woman who had accused him of rape (a judge ultimately tossed the case). Comedian Bill Cosby threatened and then backed off on filing a defamation suit against Beverly Johnson, a former model who claimed in a Vanity Fair article that Cosby had drugged and molested her.

Her’s case does not involve celebrities or sizable incomes. On the day of his sentencing, there was great antipathy expressed between his family and Xiong’s. Several times as Xiong’s mother spoke, Her’s lawyer interrupted to say that his client was being verbally threatened in the Hmong language by Xiong’s mother. At one point, Her’s father rose to speak in defense of his son. As he walked back to his seat, he and Xiong’s father exchanged glares and terse words in their own language.

In his complaint, Her claims that a sister of Xiong made “false and defamatory” statements against him in Facebook posts on May 21, 2015, the final day of the first trial, when Xiong and her family had learned that the jury could not reach a unanimous decision.

“Rapists destroy lives,” read a note that Ger Xiong – Yee Xiong’s older sister – posted on Facebook. “Rapists hurt all of us, not just their victims.” This post include several photos of Her that have been identified as having been taken from his Facebook page.

In another Facebook post from the same day, Ger Xiong posted a single photo of Her with the words: “We will not be silenced. We will fight for justice against Lang Her, who is a rapist.” That post was also shared by Yee Xiong and two other siblings.

Through Yolo County sheriff’s deputies, Her declined an interview request. His lawyer, David J. Collins, has not responded to interview requests.

Though Xiong and her siblings called Her a rapist even though he has not been convicted of rape, legal experts say he may face a tough road to prevail in a defamation case. Since the early 1990s, speech protections have been enhanced by the California Legislature because legislators feared that a preponderance of lawsuits were having a chilling effect on free speech. The Legislature created language that allows judges to quickly toss defamation cases if the judges determine that the plaintiff has little chance to win.

On Monday, Scott will try to get the suit dismissed via legal remedies enacted by the Legislature. Scott said that Xiong and her sister were expressing their First Amendment rights on their Facebook pages. He said their posts were in connection to a public trial receiving a great deal of publicity.

“A lot of states achieve summary dispositions of cases that can otherwise take up judicial and legal resources,” said Lisa Pruitt, a professor of law at UC Davis. “It’s really hard to win these cases because of speech protections.”

Pruitt said that Her’s chances are complicated by all the publicity his case received. His name had already appeared on news outlets and Xiong and her sisters were commenting on an issue in the public domain.

Though he wasn’t convicted of rape, Her did agree to be registered as a sex offender and receive sex offender counseling. Free speech laws allows latitude to statements that are substantially true, Scott said.

Her may argue that he just wants to clear his name, but the amount of money attached to the case suggests other motivations. “When I saw he was asking for $4 million, I had to laugh,” Xiong said. “I thought it was a joke.”

Friends convinced Xiong that she needed to find a lawyer to defend her against the suit – and fast. After learning that legal services would cost thousands of dollars that neither she nor her family has, Xiong received a call from Scott.

Fresh off being hired by UC President Janet Napolitano to help investigate embattled UC Davis Chancellor Linda P.B. Katehi, Scott agreed to help her based on a single phone call placed to him by Jonathan Raven, the Yolo County prosecutor who tried the second case against Her.

“I think (Her’s family) wanted to get revenge, to hurt me in some way,” Xiong said. “They just wanted to get back at me.”      

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