Johnny Depp and Amber Heard Demonstrate How Not To Handle a #MeToo Case

The torturous trial calls to mind Title IX investigations on college campuses.

Johnny Depp's defamation trial against ex-wife Amber Heard has entered its sixth and final week, with closing arguments expected on Friday. Depp is seeking $50 million in damages in order to punish Heard for implying that he was a domestic abuser in a Washington Post op-ed; Heard contends that Depp was indeed abusive, and has countersued for $100 million.

Their conflict is messy and salacious, and the public can't seem to look away. But the fraught attempt by everyone involved—trial participants and onlookers—to condense a rocky relationship into a neat, uncomplicated story about a hero and a villain, should give pause about the wisdom of formally arbitrating such things.

If anything, the Depp-Heard trial calls to mind the sort of student hookup disputes that frequently occur on college campuses and were previously adjudicated in accordance with ill-conceived federal Title IX guidelines, where obvious instances of unwise behavior on both sides were frequently ignored in favor of simplistic victim-perpetrator narratives. In practice, this meant automatically believing female accusers and depriving the accused of basic fairness. (Such campus adjudication is expected to make a comeback; the Biden administration is planning to release new guidance any week now that will likely push colleges and universities to go back to the old, illiberal way of handling these things.)

In short: Heard and Depp began dating in 2009. They married in 2015 and divorced 15 months later. In December of 2018, Heard wrote an op-ed for The Washington Post in which she came out as a domestic abuse survivor. The article in question did not mention Depp by name, but Depp was perceived to be the abuser in question. (During the trial, it was revealed that employees of the American Civil Liberties Union (ACLU) actually wrote the op-ed, with Heard promising to give the organization $3.5 million from her divorce settlement.) Depp filed suit, arguing that the article was defamatory—and that, in fact, Heard had abused him, not the other way around.

What has emerged at the trial is good evidence that both Depp and Heard have treated each other very badly. Witnesses have testified to Depp's overuse of alcohol and drugs and how they affected his behavior, though they have not substantiated Heard's most serious claim that Depp raped her. Heard was manipulative and cruel, admitting to throwing pots and pans and even, at one point, striking Depp. Conclusive evidence that Depp was the more abusive of the two has yet to surface, and plenty of testimony suggests that Heard is telling exaggerations or outright falsehoods about the extent of her injuries due to alleged sexual and physical abuse. As The New Republic's Natalie Shure explains in a perceptive piece about the trial:

[Heard's] most significant eyewitness is her own sister Whitney Henriquez, whose former colleague and roommate has claimed that Henriquez had apparently moved out of Depp and Heard's home because she was scared of her sister, and contemporaneously confided that Henriquez saw Heard attack Depp, not the other way around—an account corroborated by Depp's bodyguard on duty.

I realize that nitpicking a victim's story to justify disbelieving them indeed fills up several chapters of the patriarchal playbook, and one could easily explain away one or even several of the holes in Heard's case as examples of an imperfect victim acting in self-defense or as reflective of the internalized misogyny of whoever pointed them out. But the extreme brutality of what Heard alleges—coupled with an utter lack of independent corroboration of anything even approaching the extent of her story, and the fact that several of Depp's former partners have insisted he displayed no abusive behavior before Heard met him, when he was in his fifties—makes her account very hard to swallow. Resting the integrity of feminism on Amber Heard's word is an awfully shaky bet.

Given that Heard is demonstrably not a reliable narrator, Shure warns against drawing any broad, sweeping conclusions. "This trial is just a referendum on the reputation of two rich and famous actors who treated each other jaw-droppingly terribly, in the most dramatic fashion possible," she writes.

That's a solid retort to op-eds in The New York Times that have mourned the resulting "death of #MeToo" or complained that the trial is really about the historical, misogynistic desire to watch women suffer. "This is a good old-fashioned public pillorying," writes Times contributing editor Jessica Bennett, "only memes have replaced the stones."

Heard was undoubtedly wrong to try to turn her bad marriage into good PR for her personal brand as an aspiring #MeToo feminist and ACLU mouthpiece. That doesn't mean that filing suit was the correct response on Depp's part, though. The defamation bar is extremely high, and Depp could lose even if he is broadly correct that Heard's abusive behavior is equal to or worse than his own.

Sexual encounters, relationships, and marriages are often difficult. Trying to account for all the ways in which one embittered partner has harmed another in an attempt to assign abuser and abused status is a highly fraught exercise.

Yet it is, of course, the exact exercise undertaken at all publicly funded institutions of higher learning since the Obama administration, under the auspices of compliance with Title IX, the federal law that mandates sex and gender equality in schools. The Obama-era Education Department's Office for Civil Rights instructed universities to adjudicate sexual misconduct disputes in a manner granting extraordinary deference to whichever student filed the first complaint, often placing the accused in situations where they essentially had to prove their innocence against a presumption of guilt. (For a recent example, read about the fall of David Sabatini.)

The Trump administration reformed these policies such that accused students and faculty members enjoyed considerably more due process rights. Importantly, Trump-era policies allowed for parties in a sexual misconduct dispute to settle the matter informally, through mediation; the previous guidance had required institutions to conduct investigations—often involving a single employee with total authority over the procedure—even without the approval or participation of the so-called victim. The reforms also stipulated that the accused should have knowledge of the charges against them and the opportunity to scrutinize the accuser, which should be considered very basic components of due process that were nevertheless in doubt under previous guidance.

Unfortunately, the Biden administration has given every indication that it will undo some or all of the changes. The department has said that it will unveil the new guidance in June; it's not clear how extensive the rollback will be, but with Catherine Lhamon, Obama's Title IX czar, back in her old position, there's little reason for optimism.

Anyone concerned by the extent to which two people can destroy each other's lives and reputations when given the opportunity to air their grievances should be against this return to form.