In the wake of the Johnny Depp and Amber Heard verdict, victims’ attorneys are reeling at the departure from an actual civilized legal process based in law. The circus of the trial turned the law into entertainment, was fodder for public humiliation, and a platform for misogyny. Most importantly, the outcome, and the narrative surrounding it, serves to chill a most important aspect of a survivors’ healing—the ability to tell their truth.
I do not wish to go into another assessment of what went wrong or how the entire debacle is emblematic of our society’s comfort with lauding sexism, privilege, and narcissism. Many have already eloquently and informatively written on the matter. One such article can be found here.
What I do want to do is provide facts around the protections available to survivors of sexual assault and domestic violence who are concerned that they do not have a voice. Victims’ attorneys represent survivors to help them share their story in a way that honors their truth and minimizes the risk of abusive litigation retaliation. Here are some ways survivors can feel protected in California:
Truth is a Defense to Defamation
A most basic tenet is that defamation requires the statement to be false. Truth is an absolute defense to defamation. Thus, if what you are speaking about is true, it is not defamation. California Code § 44, et seq.
Public policy supports freedom of speech and access to the courts. If a survivor is sued because of a protected activity, it is called a SLAPP suit. SLAPP stands for Strategic Litigation Against Public Participation. A first defense is to respond with an anti-SLAPP motion. This special motion to strike is a streamlined process to dispose of lawsuits meant to chill speech early on. California’s anti-SLAPP statute is codified in Code of Civil Procedure § 416.25.
Civil Code § 47 provides a litigation privilege for statements made and filed in the course of litigation. Generally speaking, allegations, facts, and evidence presented in one lawsuit between the survivor and abuser cannot form the basis of a subsequent defamation claim against the victim.
The reality is that litigation abuse is common. Abusers will pursue baseless strategies to further their abuse. We see this in every aspect of the law. In reality, a survivor may find themselves defending their speech in court. However, the law is on their side. Abuse thrives in silence and the initial burden is on survivors to give it a voice. For those of us who support survivors and believe in facts, we must denounce victim-blaming and victim-shaming. We can use our status as lawyers to take on abusive litigation strategies and hold those lawyers accountable who act unethically as a pawn of the abuser’s scheme.
Survivors, we support you and believe in your right to tell your truth. We will do everything in our power to protect you. It may seem as though the detractors are louder, but rest assured, we are part of a powerful network of attorneys and advocates who are here to amplify your voice.