Amber and Johnny and Z | Gabriel Latner

By Gabriel Latner

Law360 Canada (June 27, 2022, 8:05 AM EDT) --
Gabriel Latner

I wish I could say I kept my nose entirely out of the Amber Heard/Johnny Depp saga, but that would be a lie. The combination of star power and apparently incompetent lawyering is irresistible, and so I found myself chuckling along to some of the choice video clips that did the rounds online.

But I shouldn’t laugh, because it’s not funny.

A quick recap: Depp is an incredibly famous actor. He was briefly married to Heard, a slightly less famous actor. Heard accused Depp of domestic violence. Depp says Heard is the one who was violent towards him. A U.K. paper published Heard’s account, Depp sued the paper for libel (and lost). Depp sued Heard personally in the U.S. and he won. From the beginning of the U.S. trial, the common narrative was that Depp was an innocent victim getting justice against a violent and manipulative partner who made false accusations.

I don’t know if that’s true, but I am concerned by the gleefulness some have expressed at Heard’s downfall.

Let me tell you another story — although I need to be clear that it isn’t really my story to tell — it’s Z’s.  One day, Z went to the police, to report that she had been raped and sexually trafficked by a man she knew. After further investigation, the police arrested the man, and charged him with prostitution-related offences. There was a trial, and he was acquitted.

Then this man sued Z for malicious prosecution. And everyone who rooted for Johnny and the downfall of Amber Heard should also be rooting for Z’s alleged abuser, right? After all, it wasn’t just his reputation at risk: he was facing criminal charges and prison time. And it wasn’t just her word against his, because a judge said he wasn’t guilty. So obviously, Z was lying, right? Obviously, this is one of those false accusations that someone feels the need to bring up every time there’s a discussion of rape culture or #MeToo, right?

Except, and I think this is important, Z isn’t a famous actor. Z didn’t publish an article in a newspaper. Z did not write a book or try to capitalize on this in any way. She went to the police. She told them what had happened. She answered all their questions. She testified when asked.

And now she’s facing a million-dollar lawsuit.

She’s not alone. It has become increasingly common for complaining victims to be sued by their abusers — for defamation, but also for malicious prosecution, abuse of process and even tortious interference. Like CG, who told her guidance counsellor that a teacher had been molesting her since she was 13. She got sued for malicious prosecution.

Victims-turned-defendants like Z and CG have a few things going for them. Sort of.

First, while it rarely comes up, witness statements — including formal statements made prior to a trial — are absolutely privileged. No liability attaches to such statements, even if the witness acted maliciously (this is the same privilege that protects lawyers and judges). That would help Z, but not CG, who was too frightened to go to the police.

Second, malicious prosecution and abuse of process require the plaintiff to show that the defendant “initiated” the original proceeding. This is virtually impossible in cases of criminal prosecution, because there is a strong presumption that it is the police, not any complaining victim, that initiates criminal cases. But, that presumption can be rebutted if the complainant deprived the investigating authorities of investigative discretion. The textbook example that courts always come back to are cases where the only witnesses are the alleged victim and attacker — as is common with sexual assaults. So a victim reporting a brutal rape in public is surely protected by the presumption, but if the rape happens behind closed doors, even reporting it to the police risks liability.

Third, anti-SLAPP legislation applies to any claim based on speech — not just defamation — and the plaintiff’s case will be thrown out unless they can show that their case has substantial merit, and the defendant has no possible defences, and that the balance of equities justifies letting the case continue. Except, this strict statutory test has been relaxed by the courts which never like denying litigants their day in court — even if that is what the law demands.

All of which is to say Z wasn’t very comforted when I explained her situation and options. Telling a traumatized victim of abuse and trafficking that she will probably win the case on a preliminary motion that won’t require her to miss too many days of work, or relive her experiences too many times, doesn’t make one feel like the bearer of good news.

And what about those who can’t afford counsel, and can’t find someone to help them through an organization like Pro Bono Ontario, or the Schlifer Clinic? What about the victims who went to the authorities like they were supposed to, didn’t get the justice they were promised, and now face lawsuits alone? The ones who don’t know about absolute privilege, and have never heard of anti-SLAPP motions?

What do we do for them?

The stories of Z, CG, and the Depp-Heard circus bring some truths into focus.

Truth 1: some people are falsely accused of heinous acts.

Truth 2: civil litigation is currently the only way for the falsely accused to “clear their names.”

Truth 3: psychopaths and sadists are not above using the legal system to further abuse their victims.

Truth 4: for a defendant, winning a lawsuit like this can be little more than a pyrrhic victory.

How can we balance Johnny Depp’s need for vindication, with protecting the Z’s and CGs of the world?

The starting point is to recognize that these cases are not about money. Whatever damages were suffered, Johnny Depp doesn’t need Amber Heard’s money, and no one sues a child like CG, or an indigent like Z, seriously expecting to hit a jackpot — they're doing it to make a point. The most charitable motive that can be ascribed to these plaintiffs is that they are just doing what it takes to clear their names — after all, “not guilty” does not mean “innocent.” A less charitable assessment would say that these cases are examples of litigation abuse — where the legal process itself is used to harass and intimidate. The cases become a vehicle for abusers to stay in their victims’ lives, causing them pain and suffering for years. Just the kind of thing that those who prey on women and children enjoy.

Maybe that points to a solution: if their financial liability isn’t really important, why do CG, Z, or even Amber Heard need to be parties to these cases?

Some U.S. states have a procedure called a petition for factual or actual innocence, which allows someone who was arrested or charged with a crime, but never convicted, to be officially “cleared” by the state. Instead of just being “not guilty” (or “not charged”) the petitioner is publicly and legally found “innocent” — in short, the process provides vindication, without the need to sue a victim or accuser.

You can imagine a system along the lines of an inquest, able to issue summons and take testimony, but with no power to punish or award damages. Those accused of wrongdoing — civilly, criminally, or merely in the court of public opinion — would be able bring a petition, offer evidence of their innocence, and — if they’ve met the burden — get a declaration that would let them move on with their lives, reputations restored.

And what of the victim/accuser? They should be given the right to object to such a petition. And the right to present evidence, if they so wish. But their role should be limited to that of a hostile witness — only fair if they are to have no liability.

And no liability — complete and utter immunity for those who report crimes, real or fictitious — is the only way to protect victims like CG and Z from retaliatory and abusive lawsuits.

Does this mean that some truly devious and malicious false-accusers — like how Amber Heard has been portrayed in the media — will have carte blanche to lie and slander?

Yes. That is undeniably a consequence of what I’m suggesting. But surely Blackstone’s Ratio is not just for murderers and thieves, it applies just as well to slanderers and perjurers. And that’s my proposed back-stop. Concern about false accusations is best addressed with criminal charges for perjury, where the case will be in the hands of prosecutors acting in the public interest, not aggrieved parties with an axe to grind, or worse, abusers looking for another way to hurt their victims.

Let’s save civil liability and the pain of lawsuits for those who go to the tabloids, not those who go to the police, their parents, or guidance counsellors.  

Gabriel Latner is a litigator and partner at Advocan Law.

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