{"id":13226,"date":"2024-03-14T15:53:33","date_gmt":"2024-03-14T19:53:33","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/crcl\/?p=13226"},"modified":"2024-03-14T15:53:33","modified_gmt":"2024-03-14T19:53:33","slug":"how-defamation-is-used-to-silence-survivors","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/how-defamation-is-used-to-silence-survivors\/","title":{"rendered":"How Defamation Is Used to Silence Survivors"},"content":{"rendered":"

By Ali Medina<\/strong><\/p>\n

In 2022, the internet was transfixed by Depp v. Heard<\/em>, a defamation trial of actress Amber Heard by her ex-husband, actor Johnny Depp. Prior to the trial itself, Heard had written an op-ed<\/a><\/span> in 2018 discussing the backlash she\u2019d received for speaking out against the domestic and sexual violence she\u2019d faced in a previous romantic relationship. The article did not mention Depp by name. Nonetheless, Depp sued Heard in 2019, alleging her accusations had been targeting him and were libelous, causing damage to his reputation and career. In the trial that ultimately followed, Heard\u2019s credibility, believability, and likability were put on trial alongside the actress herself, as a jury was essentially asked whether they believed Heard. Heard provided evidence<\/a><\/span> going back years, including witness testimony, text messages and emails, diary entries, and photos of bruises. The jury\u2019s decision was unanimous, finding<\/a><\/span> Heard liable for defamation against Depp and ordering her to pay for the harm she had caused him.<\/p>\n

Considering the scrutiny incurred within the legal system by individuals who press charges related to domestic or sexual violence, defamation suits pose a unique harm by allowing those accused to take away a survivor\u2019s choice of forgoing the legal system in favor of more informal forms of vindication and closure like public accusations. Depp v. Heard<\/em> demonstrates that the hostility of the legal system that awaits those bringing accusations necessitates legal reform and protections against strategic defamation suits.<\/p>\n

If juries theoretically represent microcosms of the public, the Depp v. Heard<\/em> verdict was not surprising. Cameras in the courtroom allowed footage of testimony to go viral. Evidence that Heard engaged in abuse within the context of the relationship led the internet to revile Heard as hashtags<\/a><\/span> like \u201cJusticeForJohnnyDepp\u201d amassed nearly 3 billion views on TikTok. The vitriol directed toward Heard was expansive. Everything she did was turned into ammunition used to mock her, either because she was presumed to be lying on the stand, or because she deserved what had been done to her.[1]<\/a> A Time<\/em> article<\/a><\/span> discussing how the Depp v. Heard<\/em> trial \u201c[p]erpetuates the [m]yth of the [p]erfect [v]ictim\u201d explained that the accusations and suspicion directed toward Heard rehashed familiar narratives that have historically been used to discredit survivors of abuse and harassment; people questioned why Heard wouldn\u2019t leave if she was being abused, while others pointed to the evidence that Heard fought back physically and verbally as proof she couldn\u2019t be a victim. The article pointed out that, for many, it seemed impossible that Heard could be both a victim of abuse in addition to being a perpetrator. As a result, her victimization was totally rejected.<\/p>\n

Heard\u2019s story is not novel; women have historically been derided and distrusted when they come forward with allegations of violence and sexual misconduct. As criminologist Callie Rennison said<\/a><\/span>, \u201cRape is the only crime in which victims have to explain that they didn\u2019t want to be victimized.\u201d This derives from the historically prevalent belief succinctly expressed by seventeenth century Lord Chief Justice Sir Matthew Hale when he said<\/a><\/span> that rape accusations are \u201ceasily\u2026made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.\u201d As a result, survivors who attempt to find vindication within the legal system are consistently subjected to a double victimization. Journalist Jane E. Brody writes<\/a><\/span>, to this point, \u201cMore often than not, women who bring charges of sexual assault are victims twice over, treated by the legal system and sometimes by the news media as lying until proved truthful.\u201d<\/p>\n

What makes Depp v. Heard <\/em>distinctly troubling is that it shows abusers how they can silence their victims by bringing or threatening to bring defamation suits. Trials like Depp v. Heard<\/em> provide compelling reasons why accusers fearing judgment and blame may want to avoid courtroom proceedings. The risk of \u201cdouble victimization\u201d could pressure an accuser into withdrawing their claims or never voicing them at all. However, should a survivor choose to voice their accusation, Depp v. Heard<\/em> demonstrates how, despite choosing not to press criminal charges, survivors could be forced to undergo legal proceedings anyway. Survivors would be funneled into the exact courtroom proceedings they attempted to opt out of, subjected to very similar inquiries to those asked at a sexual harassment or assault proceeding. And this outcome is inflicted for the sole reason that a survivor chooses to speak <\/em>about the abuse.[2]<\/a><\/p>\n

While defamation suits have an important utility in the legal system, it\u2019s being coopted as a tool to disempower survivors. There has been a disturbing trend<\/span><\/a> in countries, including the United States, of accused perpetrators increasingly using defamation suits to retaliate against survivors, particularly women, who speak out about the abuse they\u2019ve endured. Short of pursuing legal action, perpetrators can threaten defamation suits, putting survivors in the difficult position of deciding how they want to respond and evaluating whether they believe the perpetrator will follow through. An advocacy group for student survivors of sexual violence reported<\/a><\/span> that 23% of students who make Title IX complaints are threatened with defamation suits. The threat of such a suit\u2014or even the threat of sending a cease-and-desist letter alone\u2014can accomplish its goal without the perpetrator even needing to enter the legal sphere or expend many resources.<\/p>\n

#MeToo demonstrated how women could use their voices to find empowerment and, in some cases, justice as public accusations led to consequences for the accused. Many hoped it would prove to be a cultural turning point, forcing society to confront pervasive harassment and violence against women and the ways institutions and norms facilitate abuse and protect abusers. The strategic use of defamation by accused perpetrators is just one way to preserve pre-#MeToo social and gender power dynamics, and it\u2019s working. Following the Depp v. Heard<\/em> verdict, a victim right\u2019s advocate described<\/a><\/span> hundreds of domestic abuse survivors retracting their victim statements and withdrawing from court cases as a \u201cdirect response to the Depp-Heard trial.\u201d Depp v. Heard<\/em> demonstrated how jury boxes can still hold deeply problematic social beliefs that can be wielded against those alleging abuse, regardless of the work #MeToo did to disprove pervasive cultural myths. In their book, How Many More Women<\/em>, researchers Jennifer Robinson and Keina Yoshida argue tools like NDAs, threats of lawsuits, and defamation trials involve a cultural and legal decision to prioritize the reputation of the accused over an accuser\u2019s right to speak. Like many times in the past, the law is being conscripted to protect the powerful and villainize the victimized, and this will have impacts that ripple beyond the courtroom.<\/p>\n

These defamation suits not only introduce legal barriers but induce a profound chilling effect. Survivors who consider discussing the harassment or abuse they\u2019ve received will weigh the risk of being called upon to vigorously defend and definitively prove their claims. The Rape, Abuse & Incest National Network estimates that only 30%<\/a><\/span> of sexual assaults are reported, and one<\/a><\/span> of the reasons that survivors are deterred is the treatment they will likely face within the walls of a courtroom. This potential fate may deter many from voicing allegations. And that’s without even considering that an unfavorable ruling in a defamation suit means the survivor will have to pay <\/em>their abuser for the harm they caused to the perpetrator\u2019s reputation.<\/p>\n

This chilling effect will likely weigh heavier on certain groups who already face systematic and social barriers to reporting. Low-wage workers who are estimated to face the greatest risk<\/a><\/span> of sexual harassment and violence already fear and endure retaliation<\/span><\/a>\u2014nearly three-fourths of sexual harassment victims report encountering retaliation for filing a complaint. The potential of undergoing a defamation trial is more likely to deter groups who already struggle to be believed, like men and people in the LGTBTQIA+ community.<\/p>\n

The silencing of survivors is also likely to have practical consequences, as legal action is not the only way that perpetrators are held accountable. When survivors speak up either publicly, anonymously, or interpersonally, they create informal information sharing networks where abusers are identified, thereby warning individuals who may interact with them. This also provides the opportunity for other individuals who have been victimized by the same perpetrator to come forward and create a body of accusations that can successfully discredit and deplatform the abuser.<\/p>\n

Maintaining a survivor\u2019s right to speak through these informal, non-legal channels is, therefore, vital to creating accountability outside of a courtroom in addition to maximizing survivor autonomy by providing a viable alternative to pressing charges.<\/p>\n

Supporters of the status quo frequently claim that the severity and repercussions of these allegations necessitate due process protections, like the recourse of a defamation suit for someone accused. This idea presumes that bringing forth accusations should be difficult and that reputational harms to someone accused should be prioritized above all other harms. This critique overlooks that the availability of this tool means it is often wielded by those who are guilty and have the means to use it. It also fundamentally overlooks the harms to those who wish to bring accusations but don\u2019t want to engage with the legal system, either because they can\u2019t afford extended litigation or don\u2019t want to undergo the double victimization of the courtroom. Repeat offenders, moreover, will likely evade accountability longer and have more opportunities to abuse. The idea that bringing accusations can\u2019t be too easy or else individuals will lie is a relic of rape culture best captured by Lord Hale four hundred years ago. It presumes the only harm that arises from allegations falls onto the accused and neglects the reputational and psychological harm also suffered by the accuser. Accusers who come forward must submit to the reality that their community and the broader world will know about such an intimate and upsetting experience forever. The evidence is clear: defamation suits are being used increasingly by those in power to evade accountability by silencing survivors, meaning the real due process risk is currently being suffered by survivors who don\u2019t have a reliable mechanism of finding justice for the harms they\u2019ve suffered.<\/p>\n

If a survivor makes the difficult decision to speak up, their right to do so should be vigorously protected, which means defamation law must be substantively reformed to disallow retaliation. Countries like the UK have proposed<\/a><\/span> legislation that seeks to limit the potential for abusers to file strategic lawsuits intended to silence accusers. The judicial system, too, needs to do better. Protecting a survivor\u2019s right to speak requires cultivating a legal ecosystem where accusers are not subjected to ridicule and disbelief, even when they don\u2019t conform to traditional notions of what society believes victimization should look like.<\/p>\n

If we\u2019ve learned anything from Depp v. Heard<\/em>, let it be that survivors have a right to speak.<\/p>\n

***<\/p>\n

[1]<\/a> One post<\/span><\/a> with over 220,000 likes consisted of a photo of Heard\u2019s bruised face with writing superimposed: \u201cHe could have killed you . . . . He had every right.\u201d<\/p>\n

[2]<\/a> The past five years have seen<\/a><\/span> a large uptick in the use of defamation suits to intimidate and retaliate against survivors. Legal victims rights groups say that while these suits used to be rare, it\u2019s becoming more common to see accusers receiving cease-and-desist letters or being threatened with a defamation suit if they don\u2019t take down certain social media posts and stop voicing their accusations.<\/p>\n","protected":false},"excerpt":{"rendered":"

Defamation suits are being used increasingly by those in power to evade accountability by silencing survivors. The judicial system needs to do better. 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