When You Can’t Just Believe Her 

It’s not been talked about much. And I don’t understand why. But among Amber Heard’s many accusations against Johnny Depp is “sexual abuse.”

In Case You Were in Orbit: On Dec. 18, 2018, about two years after their divorce, Heard published an op-ed in The Washington Post. Calling herself “a public figure” representing domestic violence, and without naming him specifically, she accused Depp of years of physical and emotional abuse. Depp sued her for defamation. Heard countersued, claiming that he had also abused her sexually.

In other words, that he’d raped her.

Why wasn’t that front-page news?

Why isn’t Depp in prison?

Part of the answer is semantics. I’m using a definition of rape here that was in use for most of my life. It was commonly understood to be the forced penetration of a woman’s vagina, anus, or mouth by a man, against her spoken objections and physical resistance, and under the threat of death or extreme injury.

It was also commonly understood that rape was something that happened between strangers. (The rapist, lurking in the darkness, attacks a woman strolling through a park.)

Rape was universally condemned. Rapists were universally loathed. Due process was quick. And conviction rates were high.

Given the nature of the crime, jurors instinctively believed the woman. Why would she lie?

That began to change in the 1980s. But the real change occurred in 2012. After several decades of social and political argument on the subject, the Justice Department changed the legal definition of rape in two significant ways.

For the first time, it was made clear that rape was a non-binary crime. Men could be raped as well as women. This was a breakthrough for prosecuting a kind of rape that had been ignored. I’m talking about the rapes that happen routinely in America’s prisons. The rape of inmates by other inmates or by prison staff.

The other change was perhaps more important and more problematic. It was a change in the definition of force. Prior to 2012, the woman had to demonstrate that the sex was not only unwelcome, but that it occurred against her explicit objections and physical resistance. But now, recognizing that it was possible to be too frightened to object or resist unwanted sex, that standard was dropped. If it was non-consensual, it met the criterion of force.

This new definition made the charge of rape easier to lodge but more difficult to prove in cases where the accuser and the accused knew one another and/or had a history of consensual sex. Lacking specific written or videotaped assent for each sexual act, how do you determine, retroactively, that the sex had been non-consensual and, therefore, rape?

Like the laws and regulations enacted to prevent sexual harassment in the workplace, the wrongdoing was no longer a behavior that could be seen and heard and objectively evaluated. It existed now in what was thought and felt by the self-proclaimed victim.

And that got us to where we are today. Sex between two people that know each other takes place. Later, one accuses the other of rape. There is no physical evidence to support the accusation. There is a statement from the accuser. And a denial from the accused. The investigation, indictment, and trial become a he-said/ she-said challenge for the police, DAs, judges, and juries. A real challenge, because they are all burdened with the responsibility of deciding which of two largely or completely unsubstantiated stories is true.

The core concept of rape is not at issue. Sexually penetrating a person against his or her expressed objection is still, indisputably, rape. But when the antagonists were once friends or lovers, the job of determining consent is now considerably more difficult.

That has meant more rape accusations that never went to indictments. And more indictments that never went to trial. And more trials where the defendant was exonerated. For anyone that wants to discourage rape (presumably everyone), this has led to arguments about consent that have ranged from dubious to ridiculous.

It’s not a coincidence that in the 10 years since that legal definition was changed, we have seen a surge in the number of rape accusations directed at public figures and celebrities. Although proving rape against an intimate partner has become more difficult, the damage caused by these accusations can be huge – and motivations to make false accusations are now manifold. The chances of being charged with making a false accusation are few and far between, and the consequences of making them are relatively small.

This growing imbalance between accusations and convictions is upsetting. A rape accusation – especially between spouses and intimate partners – is no longer something we can always believe.

That is why the proposition of the #MeToo movement – that we should always believe the woman – hasn’t had the support it once had. We no longer have the luxury of coming to a confident conclusion about rape when accusations are made. And for rape victims, that has made the experience of seeking justice that much harder.

And that brings us back to the trial of the year: between Johnny Depp and Amber Heard.

When Ms. Heard published her op-ed in The Washington Post in 2018, the #MeToo movement was at its height of popular acceptance. And, by and large, the media and the Hollywood establishment did believe her. She was the victim and heroic survivor, while Depp was roundly represented as the poster boy for rapists. He lost his $50 million contract with Disney, and has since then been pretty much unemployed.

I get it. If you agree that rape is a terrible crime, you want to believe in always believing the woman. It obviates the messiness and pain of everything associated with the crime for the victim. And it gives the casual observer a simple story of crime and punishment. But to hold that position, you have to believe that people accused of rape never make false accusations.

Unfortunately, as you can see in Good to Know, below, that’s not true.