Experts: Past accusations against Ailes may not admissible

Experts: Past accusations against Ailes may not admissible
© Getty Images

Two women have now gone on the record alleging that Fox CEO and Chairman Roger Ailes made unwanted sexual advances towards them.

Their accounts appear in a recent interview in New York Magazine, along with four other accounts by other women choosing to remain anonymous. 

ADVERTISEMENT

Kellie Boyle, a former Republican National Committee field advisor, claims Ailes once said to her in 1989, “You know, if you want to play with the big boys, you have to lay with the big boys.”

And former model Marsha Callahan alleges that Ailes during an audition for “The Mike Douglas Show” asked her to lift her skirt and pose for him. Ailes was an executive producer for the Douglas show a the time.

The latter claim supposedly happened when Gretchen Carlson, who filed a much-publicized sexual harassment suit against Ailes last week, wasn't even three or four years old. (Callahan, 74, can't recall exactly what year the alleged encounter took place). 

One other rather interesting development on Callahan: While New York Magazine's Gabriel Sherman, the author of the piece, included her by name in the article, NBC News could not corroborate her story. In fact, none of the other five stories presented by Sherman could be confirmed by NBC News, according to a package on NBC's Today Show today. 

And therein lies one of several interesting legal questions regarding this case surrounding the former Fox host and its powerful president: If the women willing to come forward are making allegations they say occurred anywhere from 27 to 50 years ago, and there's no recorded evidence of such an occurrence happening, will it have any real impact if this case goes to trial? 

“It is unlikely that a court in a civil case would allow testimony on these alleged episodes to be used due to their age and absent more recent claims,” explains Jim Ryan, a partner at Cullen and Dykman in New York. “It doesn’t appear that that alleged conduct continued into subsequent decades.” 

But if more women go on the record with claims of misconduct that happened more recently, Ryan argues that would change matters in the eyes of a jury. 

“If additional women come forward who bridge the time gap, there would be an argument under the rules of evidence that this is part of a longstanding pattern and practice and therefore the court should permit the testimony,” he says. 

Shan Wu, a former Department of Justice sex crimes prosecutor and current criminal defense attorney, has a different perspective. 

He argues the claims could help Carlson’s case by undermining Ailes’s image.

“The comments may show a pattern of behavior that will hurt Ailes’ credibility as well as bolster the credibility of the complainants,” Wu said.

As for the argument around the lack of physical evidence, such as a recording, Wu states: “People often forget that verbal testimony can be just as strong as other forms of evidence and can even be more compelling than written documents or video footage.” 

But will the alleged events be so dated that they won't even be admissible? Jay Holland, a principal in Joseph, Greenwald & Laake’s Civil Litigation Group, says the time passed could be problematic for Carlson's case. 

“Courts tend to be very reluctant to admit dated prior statements to show that the harasser acted similarly in this case,” Holland explains. “The more time that has passed, the less likely the statements will be admitted.  But it will be up to the judge – or arbitrator – to weigh the value and reliability of the evidence.” 

Jon Robertson, a partner at California-based, Robertson & Olsen and a litigator of 27 years, agrees that the Carlson legal team has its work cut out for it as things stand now. 

"There is a factual distinction between Gretchen Carlson’s claims, which she will testify occurred at Fox News – and the claims of these six women – which allegedly occurred while Mr. Ailes was employed elsewhere,” says Robertson.

"Given this lack of a factual nexus, indicating a hostile work environment at Fox News, and the fact that these claims took place decades ago, it is unlikely any of the testimony of sexual harassment by Mr. Ailes against these six women will be included in the trial of this dispute," Robertson said.