Depp v Heard: A new era for the #MeToo movement

We don't have to see the jury's decision in the Depp v Heard case as the end of #MeToo

As I do on rare occasions, I am starting this week with a little author’s note. You can feel free to scroll past this part to where the actual essay begins below the picture.

I’m honestly surprised to find myself writing about this week's topic. Six weeks ago, I had never heard the name “Amber Heard.” I had no idea who she was or that she had been married, however briefly, to Johnny Depp. But I have a Twitter account, so there has been no escaping it. As with so many things, and for reasons I feel I will never fully understand, the defamation trial between the former actor-spouses has gone viral, and has become highly polarized in the public sphere.

I am not here to advocate #JusticeforJohnnyDepp or to #StandWithAmberHeard. I have no intention of evaluating the veracity of the case either party presented to the court. That is for the jury, who yesterday released a verdict finding that Depp had established each count of defamation alleged against Heard, while Heard had established only one count raised against Depp’s lawyer. It remains to be seen whether Heard will appeal the decision. On Twitter, this decision is being hailed as both a victory and a tragedy. My only words of wisdom in that regard are that one of the first things we learned in my family law course is that in these types of cases, it is seldom that one person is absolutely correct and the other is absolutely wrong. The truth is, and will be, somewhere in the middle.

As I do here at Horse of a Different Colour, I will be exploring themes from the trial that I feel are missing from our conversation, and providing some very limited clarification to what appears to be confusion about what exactly is going on from a legal perspective. Because there is a lot to discuss here, so this piece will be broken up into sections to ease reading. For a more detailed explanation of the legal aspects of the trial, watch this video from Legal Eagle.

On April 11, a judge and jury in Fairfax County, Virginia, heard the opening arguments of a defamation trial between Johnny Depp and Amber Heard. This trail is arguably a counter-part to Depp’s 2018 libel suit against the UK media conglomerate News Group for an article published in The Sun referring to him as a “wife-beater.” The article in The Sun referred to Depp’s relationship with Heard, and News Group was ultimately successful at showing that labelling Depp as a wife-beater was not libellous on a balance of probabilities. While this trial was ongoing, Heard published an article in The Washington Post referring to herself as a public figure representing domestic abuse. In response to the article, Depp brought the action which has just concluded against Heard for defamation. Heard counter-claimed, also for defamation. After a six-week trial, the jury returned a verdict on June 1, finding Heard liable on all counts alleged against her and awarding damages in favour of Depp totalling $15 million. Depp’s lawyer was found liable on one count alleged against him, and $2 million in damages were awarded to Heard. 

There is a lot to unpack about what is going on here, and a lot of he-said-she-said that has gone on at the trial, and much of it goes beyond the scope of this piece. However, I feel a few things are important to clarify. 

Was Depp morally wrong to sue Heard for defamation? 

Not really. Except for a 2016 application for a restraining order withdrawn before a hearing ever took place, Heard has never made formal allegations of domestic abuse against Depp. Their divorce proceedings cited the reason for separation as “irreconcilable differences.” There has never, to date, been a criminal proceeding against Depp regarding domestic violence or a police report prompting an investigation or charges, as far as can be determined. This doesn’t mean that he wasn’t a bad or even abusive partner, only that he has never been charged for his actions toward Heard. The jury’s verdict does not preclude the entirely probable toxic and abusive behaviour throughout Depp and Heard’s relationship. 

Without taking sides, it cannot be ignored that all of Heard’s allegations against Depp were made in a public arena - a major newspaper -  where Depp did not have the opportunity of due process or defence, and while one can say they did little to impact the actor that is not in fact true as he was dropped from the Pirates of the Caribbean franchise. Furthermore, Heard traded on these allegations to her benefit. She was given her position as an ambassador on women’s rights with the American Civil Liberties Union following her very public statements about Depp.

Even if the jury had found that Depp abused Heard on a balance of probabilities, he would not have been wrong to bring the action against her because until a verdict had been rendered, the statements were potentially defamatory. He had no other recourse for testing them. 

Why was Heard not given the protections usually afforded to a sexual assault complainant?

Last week, this was one of the most common topics I saw those who support Heard tweeting about. They are referring to that in criminal sexual assault trials; complainants are often permitted to testify behind screens, so they do not have to see their assault/abuser or have emotional support persons with them. While uncomfortable and perhaps indicative of something that needs to change in our trial process, the answer is relatively straightforward. This was not a sexual assault trial. This is a defamation trial. No one was found guilty, and no one is going to jail. Heard is not a sexual assault complainant, even though much of the trial was spent interrogating her sexual experiences with Depp. 

Regarding whether or not it is unfair to Heard to make her testify and undergo cross-examination on her alleged experiences with Depp, it is again important to consider how she made her allegations. Heard, of her own volition, spoke about her experiences publicly, and assertions of her discomfort discussing these experiences at trial can realistically only be heeded so far, as she was comfortable doing so in the media. 

Could Johnny Depp be criminally charged?

Presumably, yes. Regardless of the findings in the civil action, if prosecutors feel there is sufficient evidence to press charges, they likely would not be estopped from pursuing criminal action against him. 

What can we take away from the trial?

I do not believe, by any stretch, that this trial is the end of #MeToo, as has been asserted by many. 

As a woman who has worked in and is entering an industry (ballet and law, respectively) where inappropriate sexual behaviour has a long history of running rampant, I support the social upheaval that has rocked many workplaces since 2017. I believe that the refusal by women to continue tolerating the inappropriate behaviour we have all been subject to is making our offices safer. But this does not mean that every experience is the same or that claims are to be accepted at face value for their inherent truth. 

While this trial and its verdict likely feel like a setback for many women’s rights activists, I think this finding may actually be a positive, even in that sphere. While the #MeToo movement has brought to the surface some truly deplorable actions by public figures and shone a light on behaviour that women in many industries have for too long been forced to tolerate in silence, it has also had its downside. Allegations of sexually inappropriate behaviour have, since 2017, been career-ending. And while for some, this was probably for best, for others - think Al Franken - it was a product of allegations that were accepted as accurate without ever being tested by the long-established legal standards for sexual harassment or assault. 

This is because the public demand for justice often moves at a far swifter pace than the legal system. As soon as allegations are made, action is demanded. This means that the veracity of claims or the seriousness of the conduct complained of can have little relation to the ultimate damage done to the accused's life and career. There is a reason why our justice system does not automatically accept all allegations as accurate on their face. It would be really scary to live in a world without the due process afforded to defendants and respondents, wherein they have the opportunity to state their side of events and make a case for themselves. 

Depp’s defamation suit is perhaps an opportunity to search for a balance between taking sexual assault complaints seriously and making rash decisions based on Twitter vitriol. Heard truly believes that she was subject to sexual violence at the hands of her ex-husband, and as part of combatting the many barriers that often stand in the way of these claims being taken seriously, she made the brave choice to come forward. But the genuineness of her belief does not remove Depp’s right to a fair trial on the merits and an opportunity to defend himself, nor does it mean that his actions will necessarily be found to rise to the level of what has been long regarded as the standard for domestic violence. 

That Heard was unsuccessful in making out her case against Depp does not mean that #MeToo is dead. Perhaps instead, it will allow us to enter a new era of the movement wherein accusations are taken seriously in the way they are investigated and handled, but where the public does not render a judgment before it has been affected by the courts.