After nearly seven weeks in the courtroom, a jury has reached a verdict in Johnny Depp’s defamation lawsuit against Amber Heard. He won. Online, his supporters are rejoicing, insisting that his victory vindicates all men “falsely” accused and serves as proof that the #MeToo movement went too far.
But the verdict is actually proof the #MeToo movement hasn’t gone far enough.
The reason so many women had to say #MeToo is because of moments like this one. Survivors who come forward about the violence they have endured are often blamed instead of believed. Harassed instead of supported. They are punished for sharing their stories, betrayed by the very systems that are supposed to protect them. The #MeToo movement raised our awareness about these injustices and helped us empathize with survivors, but, so far, there has been very little structural change to the systems that so predictably hurt victims.
And in Depp v. Heard, some of the structural inequalities in the American legal system were plainly on display. The most obvious example of how the legal system is stacked against survivors in cross-examination. While Americans herald cross-examination as the gold standard of seeking truth, scientific studies find that it actually obscures the facts in sexual-violence cases. The hostility of cross-examination often produces traumatic symptoms in survivors that can impede their ability to recall details of the violence they endured, especially if they face questions that draw on victim-blaming tropes. As a result, survivors may struggle to focus or tell a coherent story, which keeps crucial information from reaching the jury. In contrast, researchers find that trauma-informed interview techniques that rely on open-ended questions and create a safe, comfortable environment for survivors are more likely to produce an accurate narrative of what took place that can be corroborated (or refuted) by the rest of the body of evidence.
A failure to recognize survivors’ trauma isn’t the only problem with a clear solution in our legal system. Survivors also face unique burdens in coming forward that are not shared by other victims of crime. In most cases, character evidence is considered irrelevant by our courts. Because it is irrelevant. Someone can attend church every week and still drive drunk. Someone can be a good football player and still start a bar fight. Someone can be a punctual employee at one job and still steal from the cash register at another. In trials for other types of crimes, judges are reluctant to allow a defendant to parade their friends and families before the court because we recognize that they are likely to take their loved one’s side, regardless of their guilt or innocence. Unless they were a bystander to the event in question, they have nothing to contribute to the case.
We make an exception, however, for cases involving sexual assault and intimate partner violence. We allow the men accused to bring ex-girlfriends, mothers, coaches, priests, and even paid employees to testify that they are good people. We also allow them to smear the reputations of their victims, digging deep into their past to find a disgruntled former roommate or an estranged family member who is eager to tarnish their credibility. We learn nothing about whether violence did or did not occur from any of these witnesses, but their testimony biases juries against sticking to the facts of the case.
There are other types of irrelevant evidence that dominate gender-based violence cases, too. For example, sexual-assault victims regularly find their credibility in question if they refuse a forensic exam (known popularly as a “rape kit”). However, these invasive, re-traumatizing exams rarely produce any useful evidence for survivors. Forensic exams were designed to identify an unknown perpetrator through the collection of DNA, but most survivors already know exactly who sexually assaulted them. If their perpetrator acknowledges any sexual contact occurred—and most do—then a rape kit is essentially rendered useless. It was merely a burden we expect victims to endure to report—a “second rape” by the legal system that we expect they tolerate for us to believe their stories.
And, of course, we now are well aware that a survivor who cannot somehow overcome all of these disadvantages in the criminal justice system can face a defamation lawsuit in the civil courts.
There are simple reforms we could make to the legal system to begin to dismantle the advantages we give perpetrators—like using trauma-informed questioning of survivors and ending exceptions for character evidence—and we should implement common-sense changes that would ease the burdens on survivors. However, these problems are far from the only reasons that our legal system is so harmful. It is dehumanizing to be treated like a supporting character in a court case narrowly focused on whether a perpetrator should be punished. Many survivors are eager to create new interventions on violence that treat victims like people who deserve safety and support, instead of evidence to be evaluated.
In recent years, calls for restorative justice have gained popularity among feminists who want to center the survivor—and not their perpetrator—in our social response to gender-based violence. And for good reason. The approach is more focused on repairing harm than doling out punishment and specifically prioritizes survivors’ healing and restitution. In the aftermath of a trial like Depp v. Heard, we are reminded that many of survivors’ needs cannot be met by the American criminal justice system. It can’t promise safety or speed. It slows down survivors’ healing instead of facilitating it.
We need a change.
Depp v. Heard doesn’t prove that #MeToo went too far. It’s a chilling reminder that we can lose all of our hard-earned gains if we don’t pair empathy for survivors with building a new system that can finally offer victims justice.
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