Colorado’s second-highest court agreed earlier this month that a woman who spoke out against domestic violence online after the high-profile death of her sister cannot be held liable for defamation.

Moira Sharkey was the sister of Kathleen “Kate” Petrocco, who died in her Brighton home in July 2019. Authorities ruled the cause of death a suicide, but Sharkey and her family questioned that finding. Even if Petrocco’s husband, David Petrocco Jr., was not directly involved, they believed the domestic violence Kate Petrocco experienced led to her death.

David Petrocco sued Sharkey in 2020 for multiple posts she made on Facebook, in which Sharkey lamented the justice system’s handling of her sister’s abuse. Petrocco interpreted her public statements as falsely implying he killed his wife.

Although a trial judge allowed David Petrocco’s defamation claims to proceed, a three-judge panel for the Court of Appeals found Sharkey’s statements were shielded under a Colorado law designed to protect free speech.

“Sharkey’s statements are about what are, in her view, potential abuses of power by the judiciary and law enforcement and their failure to adequately protect victims of domestic violence,” wrote Judge Ted C. Tow III in the June 1 opinion. “Domestic violence, and the justice system’s handling of it, are undeniably issues of public concern.”

Case: Petrocco v. Sharkey

Decided: June 1, 2023

Jurisdiction: Adams County

Ruling: 3-0

Judges: Ted C. Tow III (author)

David Furman

Sueanna P. Johnson

Background: Three years after Kate Petrocco’s death, public officials say they would support a new investigation

The case implicated Colorado’s relatively new “anti-SLAPP” law, which stands for “strategic lawsuits against public participation.” The legislature enacted the law in 2019 to provide a mechanism to quickly dispose of litigation that implicates a person’s First Amendment rights – specifically, the rights to free speech and to petition the government.

Kate Petrocco’s death received substantial publicity through a combination of the Petrocco agricultural family’s prominence in Adams County, her romantic involvement with the married district attorney, and her own family’s subsequent concerns about the integrity of the investigation.

A detailed Westword article two months after Kate Petrocco’s death described multiple incidents in which law enforcement responded to address David Petrocco’s belligerent, allegedly abusive behavior. On one occasion, police decided to transport him to a hotel to “cool down” instead of taking him into custody, despite a mandatory-arrest law for domestic violence.

In 2018, David Petrocco pleaded guilty to two misdemeanor offenses and received a deferred judgment, meaning the case would be dismissed if he satisfied certain conditions. Kate Petrocco filed for divorce, but she died in her home days before the divorce was finalized.

Her family raised concerns about the government’s handling of the investigation and sought to bar then-District Attorney Dave Young from the case. Kate Petrocco had disclosed she was having an affair with Young prior to her death.

In 2020, Sharkey made three lengthy Facebook posts describing the role domestic violence played in her sister’s death.

“(I)f only our criminal and civil justice systems were designed to protect us from violent, aggravated offenders, she might still be here,” Sharkey wrote in one post. She also referred to the “corrupt” coroner and law enforcement and alleged David Petrocco “irreparably damaged” his wife.

Petrocco then filed a defamation lawsuit against Sharkey, arguing her public statements amounted to accusations that he killed Kate Petrocco or otherwise caused her death. He claimed he would need to spend at least $100,000 for a “reputation repair program,” among other costs.

Sharkey moved to dismiss the lawsuit under the anti-SLAPP law. Retired District Court Judge Sheila A. Rappaport agreed Sharkey’s comments were protected First Amendment activity because they spoke to an issue of public concern: domestic violence deaths.

The law “protects Sharkey’s right to comment on the judicial proceedings relating to her sister’s domestic violence case and the law enforcement and legal system that allegedly failed to adequately support Kathleen and investigate her death,” wrote Rappaport.

However, she declined to dismiss the case, believing it was “for a jury, not the Court” to decide if David Petrocco had proven his defamation case.

Sharkey appealed, arguing it was clear that none of her posts accused Petrocco of murder. She pointed out the Colorado Domestic Violence Fatality Review Board listed Kate Petrocco’s death as being linked to domestic violence, so her assertions were grounded in fact.

Sharkey received support from multiple organizations that assist domestic violence victims, including the Rocky Mountain Victim Law Center, the Colorado Coalition Against Sexual Assault and the National Family Violence Law Center.

“SLAPP lawsuits are a weapon for abusers to control domestic violence survivors, isolate them from their support structures, and silence those who would speak out on their behalf,” the groups argued in one brief, urging the Court of Appeals to find Sharkey’s statements were shielded from legal liability.

David Petrocco’s lawyers acknowledged public statements about domestic violence generally are not defamatory, but Sharkey had gone a step further by implicating him in Kate Petrocco’s killing.

Sharkey’s comments were “in furtherance of a private and personal conspiracy that are not protected speech. Such conspiratorial statements offer no benefit to the public discourse,” wrote his lawyers.

The appellate panel agreed with Sharkey. Even if she implied David Petrocco was responsible for his wife’s death, he could not show Sharkey acted with malice, recklessly disregarding the truth.

“(R)egardless of the coroner’s determination, she believes Kathleen’s death was not a suicide and has reasons for her doubts,” Tow explained.

The judges did agree that Petrocco’s claims unrelated to the Facebook posts – specifically, that Sharkey and her mother trespassed on his property and assaulted his mother – could continue. Petrocco also sued Sharkey’s mother, Eileen Rafferty, for her own Facebook posts suggesting Petrocco was a murderer. Those claims were not part of Sharkey’s appeal.

Sharkey told Colorado Politics she hoped domestic violence victims would be able to seek accountability “with greater protection as a result of this decision.” An attorney for Petrocco did not respond to an email seeking comment.

The case is Petrocco v. Sharkey.