Colorado recognizes the tort of defamation per se. When someone is falsely accused of (1) committing a crime, (2) engaging in professional misconduct, (3) having a loathsome disease, or (4) engaging in sexual misconduct, the person who made the false accusation could be liable to the victim for defamation per se. The key difference between defamation per se and defamation (or defamation per quod) is that damages are presumed when defamation per se has been proven. The presumption that the plaintiff has incurred damages means the plaintiff will not have to prove that he or she incurred special damages.
A false allegation that someone has had an extramarital affair can be defamation per se because an extramarital affair can be considered sexual misconduct. In Gordon v. Boyles, the Colorado Court of Appeals held that “a statement that any person is engaging in an extramarital affair is an allegation of serious sexual misconduct for this purpose, and, therefore, the publication here alleging that Gordon engaged in an extramarital affair also is defamatory per se.” See 99 P.3d 75, 79 (Colo. App. 2004).
Long ago, when U.S. courts first began to recognize false allegations of sexual misconduct as defamation per se, the purpose was to help protect the reputations of women. There was a time when public statements calling a woman's chastity into question could seriously damage her reputation, causing her substantial economic harm and emotional distress.
Nowadays, Colorado courts recognize that false allegations of sexual misconduct, including false allegations of extramarital affairs, can cause both men and women substantial economic harm and emotional distress. When married people have been accused of having extramarital affairs, the accusations alone can harm their relationships with their spouses and children. Their friends, depending on their moral beliefs, might act differently towards them. Accusations of extramarital affairs, in the workplace especially, can cause their colleagues, business partners, or clients to look upon them with disfavor or begin to doubt their integrity and trustworthiness. Their careers could be jeopardized. Their business prospects could be limited. Their credibility could be shot.
The types of damages defamation per se victims suffer can be both economic (e.g. lost profits, loss of earning capacity, medical bills for psychological treatment) and noneconomic (e.g. emotional distress, loss of enjoyment of life). When defamation victims suffer from false allegations of extramarital affairs, their damages could include loss of consortium if their spouses learn of and react predictably to the allegations. Loss of consortium occurs when someone losses the benefits of a family relationship, usually the relationship with a spouse.