Now that the jury has found (mostly) in Johnny Depp’s favor in his defamation case against Amber Heard, one thing is likely certain: defamation lawsuits against accusers aren’t going away.
Whenever an individual accuses someone of sexual misconduct, that person becomes a potential target for a defamation lawsuit by the accused. For example, last month, Los Angeles Dodgers pitcher Trevor Bauer brought a civil lawsuit in federal court against the woman who accused him of sexual assault after prosecutors decided not to file criminal charges against the athlete. Several other high-profile defamation cases filed in recent years have settled before trial, including one involving women who had charged Bill Cosby with sexual assault and then sued him for defamation after he said they were lying.
The decision to speak publicly about one’s experience with sexual misconduct is highly personal. Due to the stigma associated with such allegations, coupled with a criminal justice system that often fails to take victims seriously, survivors are understandably reluctant to come forward. Suppose an allegation of abuse is truthful. In that case, the accuser-turned-defendant should prevail. Still, even so, for victims considering disclosure, the risk of being sued for defamation can be a strong warning to those considering publicly accusing their abuser. Also, apart from the psychological toll the effort takes, many victims, unlike Amber Heard, of alleged sexual misconduct cannot afford the financial cost of defending such a lawsuit.
Women’s advocates say it is becoming alarmingly more frequent for perpetrators of sexual misconduct to use courts to punish victims for speaking out, in some cases, even after official confirmation of the abuse has been made. A 2018 United Nations (U.N.) report on online violence against women and girls called the act of threatening survivors with legal proceedings to prevent them from reporting their situation a form of “gender-based violence in and of itself,” and cautioned defamation lawsuits might “form part of a pattern of domestic violence and abuse.” In 2021, the U.N. special rapporteur Irene Khan called the use of defamation lawsuits in the #MeToo era “weaponizing the justice system to silence women…while also undermining free speech.”
However, some courts recognize the inappropriate use of defamation lawsuits as retaliation. In 2021, a New York appellate court ruled that “sexual assault cases remain vastly underreported, primarily due to victims’ fear of retaliation. It does not escape [the Court]that defamation lawsuits like the instant one [Sagaille v. Carrega] may constitute a form of retaliation against those with the courage to speak out.” According to a recent Ms. Magazine report:
It is critical to recognize that the use of defamation lawsuits to restrict or prevent women from publicly sharing their experiences of violence and discrimination creates an additional barrier to accessing justice and creates a chilling effect for future victims. When survivors are discouraged from speaking out about their experiences, restricted in their expression of it, or discredited when they do come forward, violence against women persists, and perpetrators enjoy impunity.
Legal experts see the increase of defamation lawsuits as a tool for both the accused and accusers to pursue retribution and redemption. Although the jury awarded Depp $10.35 million (offset by a $2 million partial victory for Heard), many believe his motivation for filing the lawsuit was to clear his name and resurrect his career, which has stalled in the wake of Heard’s allegations.
Andrew Miltenberg, an attorney whose firm routinely defends people accused of sexual misconduct, recently told The New York Times that after the Depp-Heard verdict, he received at least a dozen emails from clients asking whether a defamation lawsuit would help their cases. “I can see people saying, ‘I need that kind of victory to get my life back on track,’” he said.