Campus Sexual Assault Survivors Have Always Feared Defamation Lawsuits

On Wednesday, a jury concluded that Amber Heard had defamed her ex-husband Johnny Depp by writing an op ed in which, without naming names, Heard alluded to experiences with domestic violence. The decision came after a prolonged online smear campaign against her that many victims and survivors of intimate partner violence have said was retraumatizing for them, as it relied on tired misogyny to frame Heard—and really all women who have come forward about experiencing sexual and intimate partner violence—as scheming liars.

Certainly, Heard isn’t the only woman shouldering the consequences and psychological toll of the verdict—women and survivors with the least privilege arguably stand to lose the most from the spectacle of the trial, its verdict, and the precedent it sets. The verdict aims an especially targeted threat at campus sexual assault survivors, who are no strangers to defamation lawsuits and smear campaigns.

According to a survey by Know Your IX, a survivor justice legal advocacy group that supports students, 23% of student survivors said their perpetrator or perpetrator’s attorney threatened to sue them for defamation, 19% said they were warned by their school of the possibility of defamation suits, and 10% have faced “retaliatory complaints” filed by their assailants. Earlier this year, Jezebel reported on a rising tide of increasingly successful “anti-male bias” lawsuits in response to disciplinary action around campus sexual assaults. One database claims more than 700 Title IX-related lawsuits have been filed since 2013, though it’s not clear how many have been thrown out or privately settled.

Sage Carson, a co-author of Know Your IX’s extensive 2021 report on the consequences student survivors face for reporting, tells Jezebel the entire purpose of defamation suits and the threat of them is to silence victims—and it’s not just famous perpetrators or “those with political power” who have this tool in their arsenal. “With the rise of MeToo, famous men accused of sexual harm—Jeffrey Epstein, Andrew Cuomo, Bill Cosby, Harvey Weinstein—have all popularized a strategy to evade accountability by launching smear campaigns to undermine the victim’s credibility, then coming after those victims in court. This campaign of retaliation we see folks using like Depp did is intended to silence victims by making the cost of reporting too high to bear.”

Alexandra Brodsky, one of the co-authors of the aforementioned 2021 paper on the rise of anti-male bias suits, as well as a co-founder of Know Your IX and author of Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash, previously told Jezebel the growing success of anti-male bias lawsuits can preemptively influence schools to protect assailants even more than they already do. Courts, Brodsky said, have often “applied more generous standards—really uniquely generous standards—to lawsuits brought by students and staff accused of sexual harassment, that stands in contrast with really onerous legal standards applied for students who are survivors.”

“The result could be that schools may look at the case law and say, to minimize our liability, our best bet is to decide that no sexual harassment occurred so we can avoid a lawsuit from the accused student that could likely succeed.”

According to Carson, the survivors interviewed by Know Your IX primarily faced threats of defamation suits rather than actual defamation suits—but that alone can chill speech. And when defamation suits actually move forward, even when survivors “win,” they still ultimately lose due to “the economic weight, how the legal fight strips them of resources.” One survivor Carson interviewed, who was assaulted in her freshman year of college and whose assailant was found responsible by the school, told Carson her assailant then launched a “four-year smear campaign” against her, including a defamation lawsuit that followed her the rest of her college career. Through the lawsuit, he was able to “access her medical records, school records, even her sexual history,” and his retaliation eventually forced her to transfer schools, delay her graduation, and spend over $100,000 trying to protect herself from his attacks. It’s worth noting 34% of campus sexual assault survivors are forced to drop out of school. Carson, herself, is a survivor who reported her sexual assault to her school, and was warned that she could face a defamation lawsuit and extensive retaliation.

In Carson’s research for Know Your IX, she found most student survivors weren’t subjected to defamation lawsuits or threats because they named their abuser publicly online, but simply because they told their friends and campus communities they had been assaulted. “If we can’t even share with our own community the harms that we face, without the threat of legal attacks and abuse,” Carson said, “then we are massively limiting the support and resources survivors can access, we’re going to continue the status quo of violence and abuse.”

Ultimately, beyond the verdict of the defamation trial, Carson is deeply concerned by how the smear campaign Depp’s team deployed against Heard will affect student survivors and all survivors, whose abusers have long used similar tactics within their shared communities. Carson says one survivor told her how her assailant and all of his fraternity brothers “posted anonymous, horrible stories about her, slut-shamed her, made threats as they walked past her on the street.” Others were subjected to similar stalking and very public harassment campaigns targeting them as well as their friends and family, sometimes forcing them to fear for their physical safety.

“We just saw people so quick to drag Heard through the mud and jump on an evil bandwagon of misogyny to destroy her name, to be complicit in the further abuse of her,” Carson said. She says she and other survivors have been personally struck by how many people who were supportive of them have joined in publicly celebrating Depp, and the massive, overarching cultural embrace of him. “What that signals to survivors is, if you dare to speak out, you’d better be prepared for your loved ones, your social circles, your communities to turn against you.”

As Brodsky’s paper on anti-male bias suits notes, these lawsuits have used “backward reasoning [that] suggests that civil rights enforcement is a form of discrimination against dominant groups.” Following this logic, workplace supports for pregnant people are discrimination against non-pregnant people; supports for people with disabilities are discrimination against people without disabilities. And it’s precisely this twisted thinking that seems to have fueled the public reaction to and perhaps even the verdict of the Depp-Heard defamation suit: Depp was the real victim, because our culture has supposedly gone too far by opening the door for women and victims to speak up post-MeToo.

The overwhelming majority of sexual assaults, including 90% of campus sexual assaults, are already unreported. After the nightmarish spectacle of the Depp-Heard trial, and with the looming threat of costly defamation lawsuits, public smear campaigns, and abandonment from our loved ones and communities, Carson says this outcome could get even worse. “We can’t change our culture and stop violence if we can’t safely talk about it. We should all be taking that seriously, because it really isn’t just about silencing celebrities—it’s about silencing all survivors.”