Johnny Depp and Sir Matthew Hale

 by Sherry F. Colb

In Justice Alito's (SA's) leaked opinion in Dobbs v. Jackson Women's Health Organization, he took an originalist approach to answering the question whether women are entitled to be free of forced pregnancy and childbirth. Not surprisingly, at a time when women lacked the right to vote and their bodies were considered largely the property of their husbands, the right against forced pregnancy and birth was not an apparent priority with the all-male electorate. One could make an originalist argument for abortion rights based on the sorts of abortion prohibitions that predominated in earlier centuries, but SA was plainly not interested in finding a way to protect women's rights.

In the course of making a number of fatuous historical arguments, SA quoted Sir Matthew Hale (MH), a British Chief Justice some of whose pronouncements became part of our law for hundreds of years. The quote suggested that abortion is an extremely serious crime. A number of readers (including me) noted the perversity of citing MH in an inquiry into the scope of women's rights. As you may recall from other posts, MH sentenced two women to death for witchcraft, and he declared that husbands are rightly entitled to force their wives to have intercourse against their will (because getting married constitutes irrevocable consent) and that cognizable (non-marital) rape cases should carry a special instruction to the jurors that accusing a man of rape is super-easy but proving innocence of rape is super-hard, so fact-finders must be extra skeptical of women who accuse men of rape.

MH's amateur sociology was, not to put too fine a point on it, garbage. It is and always was extremely difficult for a woman to go into court and testify that she was raped, including back when MH was spreading his misinformation. We have zero evidence to support the proposition that women who bring rape charges are less worthy of belief than other kinds of victims of and witnesses to crime. Sadly, MH's special woman-hating instruction remained part of American law until the late 20th century.

What does any of this have to do with Johnny Depp? I have to acknowledge right off the bat that I did not closely follow the case by Depp against Amber Heard, his ex-wife. But what I do know is that in England, where the burden on a defendant in a defamation suit is greater there than here, Depp lost his defamation suit against the defendant there (a newspaper). The combination of the burden of proof and the outcome in England means that the defendant had to and did successfully prove that Depp abused Heard, just as the news suggested he did.

It is therefore rather strange that here in the United States, where the defendant (Heard) had no obligation to affirmatively prove the truth of her abuse allegations, the jury nonetheless found for Depp. I did hear some of the testimony and with apologies to those sensitive to profanity and violence, here is the basic idea of one item of evidence: Depp admitted on cross-examination that he wrote texts to the effect that: I (Depp) want to burn Heard, but before burning her, I want to drown her, and in the end I will fuck her charred corpse to make sure she really is dead. If anyone spoke this way about a woman I cared about, I would do everything lawful and in my power to help extract the woman from the patently abusive relationship. It is easy to say "oh that's just talk," but words matter, and no one who speaks that way about a woman should be anywhere near her.

Another part of the testimony, a part that I heard about in the news, involved texts that Heard sent to her mother during her relationship with Depp. Heard confessed to her mom that Heard might be in an abusive relationship. I want to explain why this evidence is as powerful as it is. Once people split up, it is very easy to imagine that they might accuse each other of all sorts of terrible behavior. I happen not to think that people bring false abuse accusations with ease in these post-breakup situations, but the argument that they might at least has some surface plausibility. But you know what lacks any plausibility? The idea that you would be dating a person or married to that person and that you would write a false text to your mother claiming that the other person is abusing you. What possible reason would you have for doing so? Contemporaneous communications, including most significantly, texts to family and friends discussing the abuse, are both highly probative and highly credible. Heard had no reason at that time to create a record of abuse allegations without foundation.

What is the connection to MH? MH was quite taken with the bogus idea that women who bring abuse (in particular rape) allegations against a man are very likely to be lying and therefore require a special instruction ensuring that the jury embraces the false stereotype of the lying "woman scorned" in their deliberations. Back then as now, being known as a victim of rape or abuse was stigmatizing.

It should not be stigmatizing. Being the perpetrator of the rape or abuse should be the only stigmatizing part of the narrative, but unfortunately, it is not. I remember watching a talk show many years ago on which the guests explained how battered women could use makeup to conceal their bruises and other injuries. The fact that a show that aimed itself at a female audience would be emphasizing concealment rather than helping women to escape the cycle of abuse in which they were living was very depressing. I was disgusted and yet I understood.

Heard evidently used makeup to cover the injuries that Depp allegedly inflicted on her. Confusion over whether Heard, in describing this concealment, was referring to a particular brand of makeup that might not have been on the market at the relevant time or whether she was referring to makeup more generally seemed to get a lot of air time. Less air time went to the fact that wondering why an abused woman does not look like she has been battered shows a profound ignorance of what women feel compelled to do when someone violent comes along to hurt them. The dirty little secret is that women are far more likely to lie to protect their batterers than they are to lie to get innocent partners into trouble.

MH would have been so proud of the jury that found for Depp over Heard. Despite all of the information we have about abuse vicims, despite the text to Heard that said Depp had cried when he was told that he had hit her (he might have mistakenly believed in his own innocence if he was blackout drunk at the time of his alleged abuse), the jury nonetheless saw fit to apply super-skepticism to the testimony and statements of a woman whose raw pain was evident as she cried on the witness stand. MH would have applauded this baseless and misogynistic skepticism.

Though he was the plaintiff, Depp was effectively like a criminal rape defendant saying "no, no, no, I didn't do that!," a claim that is in fact super-easy to make, completely motivated by the position he is in (as the accused), and facially worthy of little credence. MH would have been in Depp's corner, though they lived hundreds of years apart. MH expressed the terror that domestic abusers and rapists have long felt at the prospect of someone actually taking such abuse allegations seriously after treating them for so long as a male perk of being in a relationship. MH protected that community of abusers over space and time with instructions letting juries know that they should run with their sexist assumptions and be very reluctant to convict anyone. (Remember that no such special skepticism instruction accompanied victim testimony in cases of robbery or murder or other crimes that do not typically pit the class of men against the class of women.) Despite the fact that the defendant in England proved Depp's alleged abusive conduct in a very plaintiff-friendly legal environment, the American jury that faced a plaintiff with the burden of proof somehow concluded that Depp was the victim, just as MH thought the man was so frequently the victim, just like abusers typically regard themselves as the "real" victims. 

The #MeToo movement has developed as a way of encouraging victims to come forward against more powerful abusers with the knowledge that society has changed and that we will have those victims' backs. Some people declared that the verdict in the Depp/Heard case signals the end of #MeToo. I truly hope that is not the case. I hope that MH and his protege SA do not prevail. One jury is just that, one jury. Heard must now live with having talked about what were likely the most painful moments in her life and having not been believed by an American jury.

But I have faith that enough people who do believe her will tell her so. Believing Women means that one group of twelve people cannot reverse a movement that has, at long last, brought down such people as Harvey Weinstein and Bill Cosby. #MeToo will continue, I think, and not every trial will end in the way that Depp v. Heard ended. Depp believes he is the real victim in his relationship with Heard, but many many of us know and should be willing to say that Depp's perception, like Sir Matthew Hale's and that of so many abusers who regard themselves as victims, is factually baseless.