Me too on trial?
Depp v. Heard and the limitations of the movement.

It is hard to forget the day that Donald Trump officially became the 45th President of the United States of America. In that moment, all hope for social change towards better racial and gender equality appeared to be lost. No one foresaw that, in fact, 2017 would mark the beginning of a wave of social change to fight against all manner of sexual abuse against women.

This wave was instigated by the explosion of a movement now known to all: the MeToo movement. In 2006, American activist Tarana Burke started the MeToo movement to support “young women of colour” in her community “who were survivors of sexual violence” (Burke, 2018). Over the years, the movement evolved to support all “adults across the gender spectrum who have been holding the trauma of sexual violence” (Ibid).

In 2017, the movement exploded following a tweet by American actress Alyssa Milano where she encouraged survivors of sexual violence to reply "me too" under her post to highlight the magnitude of sexual violence, demonstrating that sexual abuse is neither rare nor an isolated event.

Following her tweet, hundreds of thousands of people worldwide, especially women, have shared their experiences and testified against their abusers. Hollywood stars became the public voice of this movement, notably through the condemnation of cinematographic producer Harvey Weinstein. In 2020, after numerous celebrities denounced the abuse they suffered at the hands of the producer, he was found guilty of rape and sexual abuse, sentencing him to 23 years of prison. This trial has long characterized the movement, but more recently, MeToo has once again come to dominate headlines worldwide through the lens of another high-profile trial: Depp v. Heard.

In recent months, you will most certainly have heard or seen some reference to Depp v Heard. The lawsuit, available for public view on YouTube, saw two Hollywood actors and ex-spouses - Johnny Depp and Amber Heard - levying charges of defamation against each other.

The actors had met on the set of The Rum Diary in 2009, when she was 23 and he was 46. In February 2015, they got married, and in May 2016, Heard filed for divorce, obtaining a temporary restraining order against Depp over allegations of abuse. The divorce was later settled, and the two ex-spouses released a joint statement denying any rumors or accusations of abuse on both sides.

In 2020, Depp filed a defamation lawsuit against News Group Newspaper (NGN) and executive editor Dan Wootton over the British tabloid The Sun for calling him a “wife-beater”. Though the British legal system is usually “more amenable to defamation cases” than that of the US, Depp lost (Osborne-Crowley, 2022).

So in 2022, Depp accused his ex-wife - Heard - of defaming him in an op-ed (a written opinion piece) published in December 2018 by The Washington Post where she alleges to have been a victim of domestic abuse: “Two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture's wrath for women who speak out.” (Heard, 2018). Depp sued her for 50 million in damages. Heard counter-sued for 100 million.

In their opening statements, Depp’s team of nine lawyers accused Heard of making up allegations of domestic abuse against her ex-husband, claiming the accusations against him were a way for the less-known actress to boost her career. They argued that while the op-ed at no point mentions Depp’s name, the time reference - “two years ago” - is a direct reference to the restraining order against Depp during their divorce procedures. They claim that such accusations ruined his career and reputation. Later in the trial, Depp’s legal team will argue that the only victim of domestic abuse in the relationship was him, not his ex-wife.

On the other hand, Heard’s team of three lawyers claim that Depp had repeatedly abused her during their relationship, often as a result of drug and alcohol abuse. They argued that the lawsuit was a way for Depp to call for a worldwide humiliation of the actress, ultimately ruining her career and trivializing the accusations and the trial. They contended that the op-ed written by Heard was in full compliance with the First Amendment right of freedom of expression and ruined neither Depp’s career nor his reputation. They concluded that the sharp decline in Depp’s career came from his drugs and alcohol dependence and abuse which made him too difficult to work with on set.

The case was not to establish culpability of domestic or sexual abuse, but whether either was guilty of unfair character assassination against the other. However, cause and cases aside, Depp v Heard will go down in history for the vitriolic response it sparked in the media and wider public alike. The repercussions of this trial on the understanding and portrayal of domestic abuse will likely be felt for years to come, especially in its relationship to the MeToo movement.

The judge presiding the trial - Judge Azcarate - allowed the infamous decision of filming and live-broadcasting every minute and every second of the trial. She defended her decision on the basis that if the trial was not filmed, she feared that media reporters and/or the public would do anything to get into the courthouse, heavily disturbing the proceedings of the trial.

While Depp and his team of lawyers welcomed the cameras, Heard’s lawyers were highly reluctant. They contended that live-streaming the trial for the whole world to watch should not be allowed on the basis that Heard was a victim of sexual violence. Later on during the trial, Heard confirmed that having to recall and testify all accounts of domestic and sexual violence against her in front of the cameras was humiliating to say the least.

This decision allowed for the development of a twin trial: that on social media. As the trial unfolded, millions of people started to take sides with either Depp or Heard. The trial polarized the realm of social media: on one side, team Depp and on the other side team Heard.

In May 2022, a month after the beginning of the trial, #JusticeforJohnnyDepp had already received around 7 billion views on Tik Tok, while #JusticeforAmberHeard in comparison only received 25 million views (Dogson, Cheong, 2022). A very similar imbalance can also be found on other social media platforms such as Instagram or Twitter.

The Hollywood stars were facing two trials, two juries and two sentences. For Amber Heard, one of them was distinctly more cruel than the other. In the court of the media, she became the target of countless videos, memes, edits, tweets, and posts determined to take her on, scrutinize and mock every single little aspect of her person, statements, accusations, physical appearance and facial expressions.

In the trial, Depp was the first to take the stand and to give his side of the story. His witnesses were also called to testify before Heard and her witnesses. As the trial was live streamed online, Depp’s narrative was the first one to come out in the public sphere, granting him an enormous advantage to rally support amongst his fan base, but also among the general public. As a result, in the sphere of social media, Heard was sentenced long before she even had the opportunity to share her side of the story and exercise her right of defense.

Indeed, in the court of social media, Heard’s defense and proof of her ex-husband’s abuse were often dismissed as unimportant details. Some of Depp’s fans went as far as fantasizing on Heard’s account of sexual abuse from her then husband, while other were justifying the actor’s abusive behaviour. The unconditional support for Depp can be compared to a cult of personality. Through a very meticulous public relations campaign, Depp’s figure was idolized and praised no matter what. This is further reinforced by the large number of references to his fictional and heroic character Captain Jack Sparrow. Consequently, long before the deliberation and verdict of the jury, Heard’s fate, as much of the public saw it, was set. She had already been judged and sentenced. She was immediately portrayed as a social climber using domestic and sexual abuse accusations and the MeToo movement against her ex-husband Depp to further her career.

On June 1st, 2022, the jury announced their verdict: Amber Heard had defamed Johnny Depp in the op-ed and was sentenced to pay 10 million dollars in compensatory damages and 5 million in punitive damages, which were later lowered following a limit imposed by Virginia state law.

The jury, however, also awarded 2 million dollars to Amber Heard arguing that Adam Waldman’s - Depp’s Lawyer - statements to the Daily Mail accusing Heard an “Abuse Hoax” were false and defamatory.

However, the message that this trial and verdict sent to anyone who has been a victim of domestic abuse, or is thinking of speaking up against their abuser, is chilling and highlights the shortcomings and limitations of the MeToo movement.

Firstly, the movement does not consider the inadequacies of the American legal system to oversee these kinds of lawsuits properly. While the movement has successfully encouraged women to speak out against their abusers, it has not considered the legal repercussions they could face. For instance, the anti-slapp law, intended to protect individuals who publicly express a critical opinion from getting sued, is not passed at the national level in the United States. Indeed, it is not a coincidence that Depp's lawyers filed the lawsuit in Virginia and not California, where the actors live. Depp’s lawyers filed the lawsuit in Virginia, arguing that it is where the Washington Post - the newspaper that published the op-ed - had its printing facilities. This would make sense if they had sued the newspaper but did not; they sued Heard, who resides in California. Filing the defamation lawsuit in Virginia instead of California was part of Depp's lawyers' strategy to win the trial as Virginia never passed the anti-slapp law, contrary to California. It is safe to say that if the case had been heard in California, it would have been easier to dismiss it under this precautionary law.

The state of California passed this law following “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances” (The State of California, “Code of Civil Procedure – Section 425.16.). This highlights another shortcoming of the MeToo movement at the legal level. It is very common for men who have been publicly accused of domestic or sexual abuse to sue the victim for defamation. Sharyn Tajani, head of Time’s Up Legal Defense Fund, an organisation founded after the MeToo movement to assist anyone who has suffered any kind of sexual abuse, states how defamation lawsuits are very common “to try to silence people from coming forward”. She recalls how surprised she was to see “much of [their] time and money” it would take (Pauli, 2020).

In the United States, difficulties in prosecuting cases dealing with sexual and/or domestic abuse are further reinforced by the fact that a state jury has the final word on the verdict of the trial. In the case of Depp v. Heard, this is a central element. In July 2020, the judge presiding over the Depp v News Group Newspaper (NGN) trial in London, found Depp guilty of abusing his ex-wife Heard on 12 of 14 accounts presented by the NGN’s defense. Therefore, the allegations made by the British tabloid were found to be “substantially true”.

The ruling also affirmed Heard’s claims that her career had severely suffered from publicly disclosing the abuse. While Depp appealed the verdict, the Court of Appeal rejected it.

As argued by court reporter Lucia Osborne-Crowley in conversation with crime analyst Laura Richards, a judge is much more trained and therefore more likely to see through lawyers’ strategies in defamation cases over domestic abuse accusations (Osborne-Crowley, Richards, 2022). A jury does not have the expertise necessary to do that and is more vulnerable to listening to the team’s best storyline.

In addition, what has and can determine the proceeding of such trials, especially with a citizens jury instead of a judge, is how poorly domestic abuse dynamics are understood by the legal system, the public, and society in general. While the MeToo movement has played a crucial role in raising awareness of sexual and domestic abuse as well as male violence against women, as showed by this trial, it has not achieved to educate the public on the dynamics of sexual violence, domestic abuse and the subsequent trauma. Indeed, both in the courtroom and online, domestic abuse was widely misrepresented, misunderstood and wholly trivialized.

The foundations of domestic abuse rely on an unbalance of power between the two parties in the couple. This can manifest not just at the physical level but also at the psychological one.

Proving domestic or sexual abuse is far from being an easy task, especially so if the abuse is psychological. As argued by Osborne-Crowley - expert and survivor of abuse - the trial mostly shifted the focus to the physical dimension of abuse (Osborne-Crowley, 2022). This deflected the attention from the power imbalance in the relationship and the critical aspects of jealousy and coercive control at the foundations of domestic abuse (Ibid). Depp’s defense was also determined to spot the inconsistencies in Heard’s accounts of abuse to undermine her credibility (Ibid). They also stated how this whole trial was based on credibility. They also highlighted the need for an expert on domestic abuse to adequately explain the dynamics of abuse and debunk the myths or the misinterpretations that were put forward in the trial. This comes back to the broader population's lack of knowledge and education, which the MeToo movement did not manage to fill.

To conclude, Depp v Heard highlighted the many limitations of the MeToo movement in achieving all it seemed possible for it to when it came to the fore of public consciousness in 2017. The movement must be praised for putting at the forefront the emergency of male violence against women and sexual and domestic abuse. However, as Depp v Heard showed, there is still a lot of work to be done to allow victims of abuse to speak up publicly against their abusers without suffering repercussions at the cultural, societal, and legal levels. In the words of Osborne-Crowley, the outcome of this trial has “raised the bar” in how much evidence is needed to prove the abuse and how a victim of abuse will be treated, which will have retaliatory consequences on victims of all genders, not just women (Ibid).

Now more than ever, movements such as the MeToo one are needed to shed light on the lack of education on domestic and sexual abuse in the legal and civil justice systems and the consequences it can have on victims of abuse who it has encouraged to speak up. After the live-streaming of this trial, the MeToo movement is necessary to counter the trivialisation of domestic and sexual abuse on social media. In an era in which hostilities against women’s rights seem to have taken a worrying path, the MeToo movement must work to overcome its shortcomings and fight for a new and more powerful wave of social change.

Bibliography

1. Burke T. (2018), “This is the ‘me too.’ Movement”, Me Too Movement, YouTube video. https://www.youtube.com/watch?v=ZF55ItXWjck (04-07-2022)

2. Dodgson L., Cheong C., (2022), ‘Johnny Depp stans declared him the clear winner in his defamation suit against Amber Heard before she even took the stand’, Insider. https://www.insider.com/johnny-depp-fans-take-over-social-media-with-memes-mockery-2022-4 (04-07-2022)

3. Osborne-Crowley L. and Laura Richards (2022), “78: The Crime Analyst, Ep 78, Johnny Depp vs Amber Heard with Lucia Osborne-Crowley, part 1”, The Crime Analyst, Spotify. https://open.spotify.com/episode/5zm54K8coAKAzrZJOX4bVt?si=1dbdc14fec084f7f (04-07-2022)

4. Osborne-Crowley L. and Laura Richards (2022), “79: The Crime Analyst, Ep 79, Johnny Depp vs Amber Heard with Lucia Osborne-Crowley, part 1”, The Crime Analyst, Spotify. https://open.spotify.com/episode/3LmL7d3R0zDu2zwk3dDXYp?si=da52e5c2a9eb4682 (04-07-2022)

5. Pauly M. (2022) “She Said, He Sued: How libel law is being turned against MeToo accusers”, Mother Jones. https://www.motherjones.com/crime-justice/2020/02/metoo-me-too-defamation-libel-accuser-sexual-assault/ (04-07-2022)

6. The State of California cited by California Anti-Slapp Project, “Code of Civil Procedure – Section 425.16 California’s Anti-SLAPP Law” https://www.casp.net/california-anti-slapp-first-amendment-law-resources/statutes/c-c-p-section-425-16/ (04-07-2022)