Top Three Title IX Lessons From the Depp/Heard Defamation Trial
The recent Johnny Depp/Amber Heard trial felt a bit like a black hole; no matter how hard I tried to pull away, the gravity eventually sucked me in. My reasons for wanting to stay away were simple: As an attorney and an expert in Title IX matters, I know how vital impartiality is in deciding these challenging cases. As a working parent and spouse, I knew I would not have the time or energy to watch every hour of testimony and review every piece of evidence. I knew it would be difficult not to base any opinions I might form about the case on my own biases and prejudices under those circumstances, particularly with the onslaught of media opinions on both sides. So best to stay away, I thought, if I can.
I couldn’t. In the end, I read many articles, watched some footage, and even listened to a few podcasts on the trial. I still do not believe I am in a position to make any of the many sweeping claims that the media and advocates on both sides of the aisle have made about the verdict. But the case does provide some important takeaways and practice tips for Title IX administrators. Here are the top three, in my opinion.
Takeaway #1: Men Can Be Abused and Harassed
Whether you believe Depp’s claims of abuse or not, the case has spotlighted domestic violence, dating violence, and other sexual harassment, including sexual assault, against men. Like the laws at issue in the Depp/Heard trial, Title IX is often associated with women’s rights. But, also like those laws, Title IX protects all people—male, female, and those who do not identify with either gender. And although we might not talk about it enough, abuse and violence against male victims, including domestic violence, dating violence, and other sexual harassment, including assault, is common. CDC statistics show that nearly a quarter of men report being victims of sexual violence in their lifetime. According to RAINN, about 3% of American men—or 1 in 33—have experienced an attempted or completed rape, and one out of every ten rape victims is male.
Many male domestic violence victims have reportedly felt empowered to speak up about their abuse because Johnny Depp reported he was abused. Many point to an audio clip, repeatedly played during the trial, in which Heard told Depp, “Tell the world, Johnny. Tell them, ‘I, Johnny Depp, I’m a victim, too, of domestic violence … and see if people believe or side with you.” According to some victims, verbalizing this stereotype felt like a turning point not only in the trial but also in “the stigma against male survivors.”
Practice Tip for Title IX Leaders: Educational employees and administrators must be equally on the lookout for reports of sexual harassment against male members of their community as against female members. When analyzing a report under Title IX, do not allow personal biases about whether men can be victims to come into play.
Takeaway #2: Cross-Complaints Should Not Receive Less Care
The need to avoid biases concerning reports by men or boys applies even if the man or boy making the complaint is doing so after a complaint has been raised against him. This type of “cross-claim” is at the heart of the Depp/Heard drama. As one source explains, “Abusers routinely turn the tables on victims, recasting them as wrongdoers, even instigators of harm.” But does that mean we can ignore their cross-claims by just assuming that they are reporting the behavior to deflect attention or further harass? Absolutely not.
Unless you’re looking for an OCR complaint or worse, you should carefully consider any cross-complaint and address any complaint that, if proved, would alleged sexual harassment under Title IX in your education program or activity. The status of the “complainant” as a “respondent” in another case should not impact the evaluation of their complaint. Evaluate the complaint and process the complaint if there are sufficient allegations.
Practice Tip for Title IX Leaders: Don’t assume a cross-complaint by a male respondent is automatically made in bad faith, is retaliatory, or is further harassment.
How does a cross-complaint practically work? What issues should you consider when deciding if the report is made in good faith? What do you do if you have valid concerns that the cross-complaint is being made in bad faith or to further harass the alleged victim in the initial complaint? Read more in our blog post “The #2 Tip for the Title IX Jurisdiction Analysis: Take Cross-Claims Seriously,” also posted today.
Takeaway #3: No “Documentation” of Abuse is Required
Heard and her counsel have repeatedly gone on record saying that the verdict in the case means that if a victim of abuse does not have documentation of every incident, they will not be believed. For example, one excerpt from the closing argument by Heard’s legal team reads:
During closing arguments in the defamation trial between Johnny Depp and his ex-wife Amber Heard, one of Heard’s attorneys, Benjamin Rottenborn, described a series of Catch-22s that often ensnare women who, like Heard, accuse their partners of domestic violence. “If you didn’t take pictures, it didn’t happen; if you did take pictures, they’re fake,” he said. “If you didn’t tell your friends, you’re lying; and if you did tell your friends, they’re part of the hoax. If you didn’t seek medical treatment, you weren’t injured; if you did seek medical treatment, you’re crazy.” Rottenborn did not name a few other damned-if-you-do scenarios that were advanced by Depp’s ferociously adept legal team in the course of the six-week-long trial: if you surreptitiously record abusive behavior, you are conniving and untrustworthy; if you don’t, it didn’t happen. If you ever try to laugh off your partner’s ghastly behavior—because the “cycle of abuse” is no less terrifying for being so pathetic and predictable—then it’s not abuse. If you talk back or fight back, then you are the real abuser.
Title IX Coordinators and team members should know better. No “documentation” is required to establish domestic violence, dating violence, or other sexual harassment, including sexual assault, under the law or Title IX. Instead, these types of decisions can be made based on credibility alone. In other words, even if the only evidence in a Title IX investigation are the statements of the alleged victim and the statement of the alleged perpetrator, a decision-maker can find sufficient evidence that misconduct occurred if it finds the alleged victim more credible.
Practice Tip for Title IX Leaders: No “documentation” is required to establish a Title IX violation; “he said, she said, they said” can be enough, although it won’t always be.
Explaining this fact does not make for a good sound bite. But it is an essential truth by which Title IX administrators should live. If you or your team need more guidance on how credibility comes into play in Title IX and other sexual misconduct cases in educational institutions, check out our complimentary webinar at “He Said, She Said, They Said: Cracking Credibility in Student Sexual Misconduct Cases.”
These are just a few of the takeaways that Title IX Coordinators and team members can learn from the Depp/Heard trial. What other lessons did you learn? Let me know at @JackieWernz on Twitter. If you have any follow up questions or would like to discuss this issue further, you can reach me at firstname.lastname@example.org.