Johnny Depp defamation case against ex-wife Amber Heard continues, in Fairfax, Virginia

Why the Depp-Heard trial worries these experts

This story was originally published by The 19th on May 18, 2022.

Correction: An earlier version of this article described incorrectly the standard of proof Johnny Depp’s lawyers must present.

Nicole Bedera said she feels “scared” watching the defamation trial brought by Johnny Depp against his ex-wife Amber Heard.

There has been an extraordinary amount of media attention to the case, which is taking place in a Virginia courtroom, but seemingly all across social media. With the near daily stream of graphic testimony that has emerged from it for weeks on end, Bedera, a sociologist who studies sexual violence, said she can see a new blueprint emerging: Defamation suits could become a way for perpetrators to lock survivors into years of abuse.

“A defamation suit offers a perpetrator a deepening of the power disparities in the relationship and face-to-face contact with a survivor,” Bedera said. “Defamation cases are often a punishment for leaving.”

Experts say that the amount of attention on this trial is offering abusers a look at a whole new way of potentially exerting power over a survivor. The situation is all the more intensified because of the nature of a defamation suit itself.

Heard wrote a op-ed for The Washington Post in 2018 in support of the Violence Against Women Act. She explained that her belief in the need for stronger protections for survivors of gender-based violence was personal, writing about the way that coming forward as a survivor of domestic violence had impacted her mental health and professional opportunities. Depp, Heard’s ex-husband, was not named at any point in the op-ed, but it does refer to a time when the couple dominated headlines after Heard had filed for a protective order against Depp in 2016. Depp went on to sue Heard for defamation, saying he had lost acting jobs because of the op-ed and was unable to work after it.

Historically, saying that you are a survivor of domestic violence has qualified as protected speech, Bedera said. The defamation suit against Amber Heard, however, makes her wonder if this no longer may be the default legal assumption — and what effect that might have.

“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. “I worry survivors will go back to suffering in silence.”

Bedera adds that a defamation suit presumes that an allegation of intimate partner violence is false — despite the fact that false allegations are “incredibly rare.” “False allegations don’t usually look like someone trying to ruin someone else’s life,” Bedera said.

Teresa Drake, the director of the Intimate Partner Violence Assistance Clinic at the University of Florida’s Levin College of Law, also worries that these cases are about “silencing” survivors.

Drake stressed that from a legal perspective, this case is unusual because Heard never once mentioned Depp by name. The presumption is that Depp’s attorneys must present clear and convincing evidence that the op-ed, and only the op-ed, is to blame for their client’s faltering career.

The substantial onus of proving clear and convincing evidence –a standard higher than the preponderance required in most defamation cases because Depp is a public figuremakes her wonder if the case has less to do with defamation and more to do with power.  “Historically, we have seen that women are free to speak their truth — as long as it doesn’t offend a man.”

Drake is also concerned with the trial’s focus on the allegations of what Heard’s and Depp’s abusive behavior during their marriage. This focus strikes Drake as unusual. The case is about determining whether Heard defamed Depp, not whether Heard or Depp were abused.

Drake shared that since the Depp-Heard trial has begun, a former client of hers has reached out to her: The survivor was granted a protective order several years ago; now, over two years later — and after pleading guilty to a work-related felony — the perpetrator is saying that this ex-wife is to blame for his career ending. Drake said she doesn’t think this timing is a coincidence.

“This will now cost her tens of thousands of dollars to fight this lawsuit against her, for which there is no evidence — and now her credibility is on the line, too,” Drake said. “This won’t be the last time we see this. This is a tactic of relatively high-functioning abusers who have resources and the energy to muster the court system against a survivor.”

Drake said that while discussions about domestic violence often focused on the most marginalized survivors, those who come from great means and privilege often face forms of abuse that may look different than publicly held perceptions.

“When resources are involved — money, popularity — it can act to silence a survivor when there is too much to lose by leaving,” she said. As to the defamation suit, she said, “I think it will say to abusers, ‘Hey — here is a great new tool for your tool belt.’”

Christine M. Scartz, the Jane W. Wilson Family Justice Clinic director at the University of Georgia’s School of Law, said people with more access to wealth and power would gain from the trial and the widespread attention on it.

“I promise you that in the demographic I work with, there are abusers out there right now telling victims, ‘I’m going to pull a Depp on you. If you disclose I will sue you,’” she said. “It’s a power and control threat that now has a name attached to it.”

Much of the trial coverage has focused on Depp’s claims that Heard also had hit him, and that he is the victim of intimate partner violence, not her. Heard has testified that when she was physical with Depp, it was only when she felt threatened or when he had physically harmed her in some way first.

Scartz notes that it’s not only abusers currently paying attention to this trial, but law enforcement, prosecutors, defense attorneys and judges. If Heard wins, Scartz said, “I think that will be a signal to judges and lawyers that you should be confident in taking forward imperfect cases and granting relief to people who may not always be all lovely on the outside and consistent in their behavior.” But should Depp win, “because she also fought him a few times, she is not entitled to relief. That’s a very dangerous outcome. If he prevails, it will give decision-makers the ability to abdicate responsibility to decide who the victim is.”

A defamation suit, Drake said, means being entwined in the legal system for “months if not years, worrying about what will happen, spending a huge amount of money on legal representation, having a disruption in your job, facing retaliation from the litigant’s friends and family.”

Because of the amount of publicity surrounding this case, this now stands to happen to that many more people. Bedera said in her own research with survivors of sexual assault, the numbers of survivors she has spoken to who told anyone about their assault rose astronomically following #MeToo. A fear of a suit like this may make it harder for a survivor “to turn to people they love and trust and need in their life to heal and say, ‘I want to talk to you about something that happened to me.’”

But, Bedera continued, “Imagine if in trying to talk to all of these people, someone taking the perpetrator’s side says to you, ‘If you keep saying this stuff, he’s going to sue you for defamation.’ I guarantee you that’s happening right now. Or friends and family are saying to someone accused of sexual violence saying, ‘You could sue her.’ I guarantee you that people are saying that right now, all across the country.”