What The Amber Heard Verdict Can Tell Us About the Limits of #MeToo
By Stacy Lee Kong
Image: Shutterstock
Content warning: This newsletter contains references to domestic violence of a verbal, physical and sexual nature.
In the fall of 2017, I spent a lot of time editing articles about abusive men (and sometimes women).
That October, Alyssa Milano sent a tweet saying, “If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet.” As far as Twitter engagement goes, it did okay—hundreds of replies from both non-celebrities and celebrities (including Rosario Dawson, Kristin Davis, Nia Vardalos, Onika Noni Rose, Viola Davis, Sophia Bush, Mia Farrow, among others), plus 20,000 retweets, 17,000 quote tweets and 47,000 likes. But its actual impact reverberated well beyond social media. The #MeToo movement had already existed for more than a decade at that point, but Milano sent that tweet just 12 days after the New York Times published its Pulitzer Prize-winning investigation about Harvey Weinstein’s decades of sexual harassment and abuse. It seemed like everyone was ready to talk about abuse and harassment in that moment, so it's not surprising that Milano’s tweet propelled activist Tarana Burke’s hashtag into a global cultural phenomenon. Soon, more and more people began speaking out about the harassment and sexual violence they’d faced, most often at the hands of powerful men.
I had just started a contract as acting managing editor at Flare, and there was no question that we’d be covering this story. Over the next months, and eventually years, we published dozens of articles that delved into different aspects of #MeToo—an op-ed from an Oxfam Canada Women’s Rights Knowledge Specialist on how to actually end gender-based violence; a piece calling out the predatory men who hide in feminist spaces; another article unpacking Lena Dunham’s public support of her friend Murray Miller when he was accused of sexual assault by actor Aurora Perrineau; a reminder, courtesy of Gabrielle Union, that while #MeToo opened the floodgates for white women, that wasn’t necessarily the case for racialized ones. And, we started tracking not just the women who accused Weinstein himself but also the ‘Weinstein effect,’ updating a master list with every new allegation against a public figure that came to light.
It was heavy, exhausting and often very sad work. Some of the allegations we covered dated back decades; others had happened just that year. In most (if not all) cases, the victim had been terrified to come forward about their experiences because they knew they would suffer professional or personal consequences if they told the truth about what someone, so often a powerful man, had done to them. But at the same time, I remember feeling a kind of grim optimism. Like finally, our society was at a turning point. The world would see how unfair it was that some people could victimize others with impunity. We’d remember that ‘perfect’ victims don’t exist, that trauma can cause gaps in people’s memories—and that this doesn’t make them ‘unreliable.’ We’d be better.
I now know how naïve that was.
The backlash to #MeToo actually began just months after the movement gained momentum
I’m obviously talking about a Virginia jury finding that Amber Heard had defamed her ex-husband Johnny Depp in a 2018 Washington Post op-ed because of three sentences: “I spoke up against sexual violence — and faced our culture’s wrath. That has to change.” “Then 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.” And, “I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.” (... And isn't it ironic that this week proved this was an objectively true statement?)
The jury awarded Depp more than $10 million USD in damages, a sum Heard’s lawyer categorically says she cannot pay. (She plans to appeal the verdict.) What you might be less likely to hear, depending on who you’re following on TikTok, is that the jury also found Depp defamed Heard through his legal team when one of his lawyers said she created “a detailed hoax that included roughing up their apartment to look worse for police,” and awarded her $2 million USD in damages according to CBC. If any legal experts would like to explain how it is defamatory for Heard to say she was a ‘public figure representing domestic abuse’ and for Depp’s lawyer to say Heard’s allegations of abuse were a hoax, please explain to the class, because I don’t get it.
But I’m not just talking about Depp and Heard, because it’s impossible to consider this verdict without also understanding the wider backlash to the #MeToo movement, which has been going on for, well, about as long as the movement has existed. In early 2018, just a few months after the hashtag went viral, University of Houston researcher Leanne Atwater and her colleagues began studying #MeToo and its impacts. The results of their first survey in 2018 found that “most men know what sexual harassment is, and most women know what it is,” Atwater told Harvard Business Review in late 2019. “The idea that men don’t know their behavior [sic] is bad and that women are making a mountain out of a molehill is largely untrue. If anything, women are more lenient in defining harassment.”
Furthermore, while male and female respondents expected to see benefits from the movement, they also anticipated a backlash: “More than 10% of both men and women said they thought they would be less willing than previously to hire attractive women. Twenty-two percent of men and 44% of women predicted that men would be more apt to exclude women from social interactions, such as after-work drinks; and nearly one in three men thought they would be reluctant to have a one-on-one meeting with a woman. Fifty-six percent of women said they expected that men would continue to harass but would take more precautions against getting caught, and 58% of men predicted that men in general would have greater fears of being unfairly accused.” (A follow-up survey in early 2019 revealed that there had actually been an even bigger backlash than respondents expected.)
Also in early 2018, 100 French women, among them actor Catherine Deneuve, “signed an open letter defending men’s ‘freedom to pester’ women… [The letter] criticized the #MeToo movement and warned about a new ‘puritanism’ sparked by recent sexual harassment allegations,” according to CNN. And this ‘himpathy,’ as philosopher Kate Manne dubbed it, never really stopped. Journalists wrote sympathetic profiles of alleged abusers. People who had supposedly been ‘cancelled’ over accusations of assault or harassment revived their careers and sometimes even won Grammy awards. As recently as last month, New York Times columnist Pamela Paul questioned whether it was really fair that actor Frank Langella had been fired from Netflix’s The Fall of the House of Usher after what Deadline described as an “internal probe examined more than a dozen incidents and accusations over the course of several weeks.” These incidents included “inappropriate comments, some of which were incredibly sexual in nature, others that were graphic and misogynistic,” according to one source, as well as questions about crew members’ sex lives and revelations about his own sex life, racist comments and jokes and three allegations of inappropriate touching. But sure, Pamela—who could possibly know what happened!!!!!
According to Catharine MacKinnon, the feminist and Harvard law professor who in law school developed the legal argument that workplace sexual harassment is actually gender-based discrimination, this is all to be expected. “There is no backlash without a frontlash. Anytime abusers don’t get away with violating us without consequences, it will be called ‘bias’ or ‘lack of due process.’ Anytime we say what he did, making perpetrators look like who and what they are, it will be called ‘defamatory,’” she said in 2019.
The jury finding Amber Heard guilty of libelling Johnny Depp is just one piece of the puzzle
Here’s the thing about #MeToo: it has been a powerful political movement and a way for people who had been abused, like Weinstein’s dozens of accusers and the 15 teen boys and men who say Kevin Spacey sexually assaulted them, to feel less alone. But while it remains an important tool for survivors, as Burke tweeted this week, and it absolutely did inspire positive changes, its impact is limited by one simple fact: publicly saying abusers’ names isn’t the same thing as sweeping institutional or legislative reform. I mean, in 2019, the Guardian reported that while more people were going to the police with their accounts of sexual assault, the number of convictionsfell to a ten-year low. Or, let's bring this back to the Depp/Heard trial. Despite the cultural power of the movement, Depp’s lawyers still relied on the well-established legal tactic of damaging an abuse victim's credibility, from questioning why Heard didn’t leave to pushing the idea that actually, she was the abuser. (This is a strategy known as DARVO, or deny, attack and reverse victim and offender.) It's just one of the reasons I don't think Heard received a fair trial, which has horrifying implications for all victims of abuse.
In addition to Depp's lawyer's strategies, at least one of the jurors was already biased against Heard. During jury selection, one man revealed that he had texted his wife about possibly being selected for the jury, to which she responded, “Amber is psychotic. If a man says a woman beat him, they never believe him.” When asked if he could remain impartial in light of his wife’s opinions, he said he could because his wife “tends to exaggerate,” but also implied that she would be angry if he sided with Heard. He was chosen for the jury. He and the other six jurors in this trial were also not sequestered, by the way, which means that, while the judge asked them not to read news about the case, there was a good chance that internet discourse, which has overwhelmingly been inaccurate, mocking, cruel and one-sided, affected who they believed. Also, juries, and especially male jurors, are also particularly susceptible to DARVO arguments, according to one media lawyer, who says Depp’s lawyers tried this same strategy in the U.K., but the judge recognized what they were doing and wasn't swayed.
I should pause here to acknowledge that the last time I wrote about Johnny Depp and Amber Heard, I was careful not to ‘side’ with either party. I tried to be clear that Heard had ample evidence that showed Depp had abused her—and that a judge in the U.K., where libel laws are far more strict than in the U.S., had already found 12 of her allegations to be true—but I wanted to focus on the way disinformation and misinformation was shaping the public’s understanding of the case. I also didn’t want to discount the reality that men can also be victims of abuse and that people of any gender can be abusive. None of that has changed, obviously. But in order to understand just how troubling this verdict is, we have to acknowledge that based on the available evidence, the U.K. judge’s verdict and the facts of this trial, Heard wasn’t lying—the jury just didn’t care.
As Maintenance Phase co-host Michael Hobbes just explained in a guest post in Parker Molloy’s The Present Age newsletter, “every beat of Heard’s narrative—the honeymoon period, the relentless escalations, the day-one apologies followed by day-two denials—follows well-established patterns of interpersonal violence. Heard’s narrative also matches nearly all the available evidence—even the evidence against her.” If you’ve spent any time on the internet (or Friday Things’ Instagram comments) recently, you may have seen people say they watched every moment of the trial and they just know Heard is lying about being abused or even that she was “caught in lies again and again.” In response, I would urge you to review the actual evidence, which includes photos, witness testimony, audio and video recordings and records of text messages between Depp, Heard and their respective employees, friends and family. In addition to the context links Hobbes includes in his piece and his own tweets, writer and feminist activist A.H. Reaume has also compiled evidence in a really helpful Twitter thread.
Also... we need to be honest about why people don't want to believe Heard: because they don't like her, which is compounded by the fact that she is an imperfect victim. She is bisexual, which has been used to discredit her since she filed for divorce in 2016, as feminist activists Farrah Khan and Mandi Gray pointed out in the Toronto Star this week. There have been minor inconsistencies in her testimony, including one instance where she said she had donated her divorce settlement to charity. In reality, she had pledged to donate it but hasn’t yet done so. (She was supposed to donate $3.5 million USD over the course of a decade, which is a super common timeline for major donations. The ACLU testified that she made installments totalling almost half that amount in 2016, 2017 and 2018, but then told them she was experiencing financial difficulties and hasn’t made a contribution since.) And she has admitted to insulting, hitting and screaming at Depp. But even that is important to understand in context, Hobbes argues. “Is a woman hitting her husband a form of domestic violence? Sure—if you ignore the evidence that she was trying to protect herself or her sister at the time," he writes. "Is taunting your partner to tell the media about your abuse a sign of emotional manipulation? Absolutely—if you refuse to consider her argument that he was constantly gaslighting her about being the ‘real’ abuser in the relationship.”
The repercussions of this case will be horrible
Of course, as many people have pointed out, whether Depp abused Heard wasn’t actually the point of this trial. It was about whether it was defamatory for Heard to publicly identify herself as a survivor of abuse—and the jury found it was, despite her ample, credible evidence of abuse, a previous legal judgement that validated that evidence and the fact that she did not name Depp or describe any incidents of abuse that could have identified him. This is TERRIFYING.
As author and abuse survivor Tiffanie Drayton wrote for NBC News on Thursday, “given this, the jury’s decision sent a very loud and clear message to survivors like me—that we should never speak up against an abuser, especially not a famous or powerful one. Only a few years removed from the beginning of the #MeToo movement, and the idea that women should feel empowered to take a stand against abuse, a jury has now made it clear that, in fact, we could be punished for doing so.”
Drayton isn’t speaking in hypotheticals. In 2020, Mother Jones reported that abusers had ramped up their use of defamation lawsuits in the wake of #MeToo. “At least 100 defamation lawsuits have been filed against accusers since 2014, according to Mother Jones’ review of news reports and court documents. Prior to October 2017, when the #MeToo hashtag went viral, almost three in four claims were brought by male college students and faculty accused of sexual misconduct; they usually sued their schools as well as their accusers. Since #MeToo took off, cases have been filed at a faster rate, with three in four coming from nonstudents.” Marilyn Manson, a good friend of Depp’s, has already filed a defamation lawsuit against his ex-fiancée Evan Rachel Wood over her allegations of rape and abuse, and non-celebrity survivors are clearly afraid of how much worse it will be for them post-Depp/Heard. Jessica Taylor, a psychologist and the author of two books on misogyny and abuse, told Rolling Stone this week that hundreds of survivors have already contacted her because they want to retract public statements they’ve made about their abusers or opt out of testifying against their abusers.
For her part, sociologist Nicole Bedera worries this verdict could even deter survivors from speaking about their experiences in other contexts. “Will this make survivors reluctant to volunteer at a crisis center, to share their story for a non-profit campaign, to warn friends about the perpetrator or ask them to set boundaries with him?” she asked in an interview with The 19th.
I am personally quite concerned about the implications for journalists, especially those of us in Canada, where defamation laws tend to more "plaintiff-friendly" than in the U.S., according to this helpful chart from an Arizona law firm. In 2018, writer Alicia Elliot explained how often accused abusers use libel law not just to silence their accusers but also to quash media coverage; the sheer ubiquitousness of the Depp/Heard case has already introduced this option to many more abusers. So, how are we supposed to ethically and safely do our jobs—speak truth to power, report out important stories and amplify the voices of people who have historically been underrepresented in media—if we run the risk of being sued whenever a wealthy and powerful person objects to our coverage? Let's not forget that the judge in the Depp/Heard trial said the defamatory statement in Heard's op-ed was the headline—and it's possible a WaPo editor wrote that, not Heard.
And let’s all think about the wider implications, shall we? The internet’s vilification of Heard isn’t happening in a vacuum; it’s happening at a time when Roe v. Wade is on the verge of being overturned, Republican lawmakers in the U.S. are introducing ever more restrictive laws curtailing reproductive rights and Canadian conservatives avoid talking about their stance—while courting the anti-choice vote. So, if women lie about being abused, do they also lie about rape? Pregnancy loss? Everything?
Meanwhile, the Depp mob is already looking for its next victim. Maybe it'll be Wood. Maybe Megan Thee Stallion. Maybe Supergirl actor Melissa Benoist, even though her ex-husband, actor Blake Jenner, admitted to abusing her.
How incredibly feminist of them.
And Did You Hear About…
The Cut’s investigation into why pain is a common part of so many gynecological procedures.
Normal Gossip, a podcast that features “juicy, strange, funny, and utterly banal gossip about people you’ll never know and never meet.”
This Twitter thread of iconic celebrity wedding looks. Also, this one about TV shows that no one remembers.
In light of TikTok's obsession with the Top Gun: Maverick volleyball scene (which, embarassingly, I get), this fascinating breakdown of how Hollywood functions as a recruitment tool for the American military.
Elliot Page's Esquire cover shoot. (It's very good.)
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