Depp v Heard and the Rule of Law

By Ian McDougall

As regular readers of this blog will be aware (thank you to both of you!) I try to take a major story of the day and give it a Rule of Law angle. The reason for this approach is that the Rule of Law underpins our prosperity and peace. Without strong adherence to the rule of law, our society breaks down. Security is lost, freedoms are lost, peace is lost. Yet very often the Rule of Law can sound very academic; obscure principles that do not seem, at first glance, to matter to our everyday lives. That is the point of this blog; to show why it matters in everyday life and to show how that everyday life would be immeasurably worse off in the absence of the Rule of Law.

But first, let me take you back to 1692, in Salem, Massachusetts, USA. More than two hundred people were accused of witchcraft. Thirty were found guilty, nineteen of whom were executed by hanging (fourteen women and five men). One other man, Giles Corey, was pressed to death for refusing to plead (!), and at least five people died in jail.

Arrests were made in numerous towns beyond Salem and Salem Village. It was the deadliest witch hunt in the history of colonial North America. It is a vivid cautionary tale about the dangers of religious extremism, but more importantly for our current purposes, false accusations, and lapses in due process.

Layered on top of this was prejudice (the belief that Women were more vulnerable to the devil than men!), maneuverings in politics and church as well as accusations that family feuds played a part. The seeds were sown for an attitude of irrationality and injustice to take hold. There was no defense counsel, no process, no evidence. In fact, even a 4 year old child was questioned.

Accusation followed accusation and many were compelled to implicate others as the only way of saving themselves. The evidence against the accursed? Only that they had seen “spirits” cavorting with the accused. Innocent people were hanged without a single shred of supporting evidence. Or, as the judge in the Depp/Heard trial called it, a “scintilla” of evidence that ought to be required to prove a claim.

So, let’s remind ourselves, with that history lesson in mind, about the importance of the 4 elements of the Rule of Law and how they were perverted in the Salem Case to lead us to disaster:

• Equality before the law. We can see a number of issues here. Firstly, the obvious discrimination against women (the “susceptible” argument). Clear and obvious nonsense that was believed without any supporting evidence.
• Independent Judiciary. In this case we had a judiciary inclined to believe fantastical nonsense without question. In addition, there seemed to be a presumption of guilt on the basis of allegation alone.
• Access to the law. There was really no law at all in this case. Being a witch had no definition and was grounded in superstitious fear, prejudice and ignorance.
• Access to remedy. Clearly, the lack of proper process, the lack of defending counsel, the total lack of any requirement for proper verifiable evidence denied the poor victims any opportunity to remedy.

The result was catastrophe. Innocent people were killed and there was an almost total breakdown of civil society from which it took years to recover. So now let me put you into the position of one of the victims. There is literally no evidence against you. The claim that you have been cavorting with the Devil is errant nonsense, and yet there you are, in the dock with no opportunity to defend yourself with these claims being believed. As a result, you are to be hung. Are you feeling good about that situation?

Now to modern times. For many years terrible abuse was not taken seriously. It was not properly investigated and predators escaped because either the victims were not believed or because the perpetrators were too powerful to be brought to justice. Women who are, more often than men but not exclusively, victims of sexual, violent or other abuse have finally seen society start to recognise that there is a problem. Finally, there appears the growing recognition that their experiences need to be taken seriously. In recent times, there has been (rightfully) a movement which has sought to raise the issue of abuse of various kinds that needed to be redressed. The horrific stories of abuse were at last believed and ultimately prosecuted. Powerful people who had escaped justice, like Harvey Weinstein, were finally held to account. For many years, women (in particular) have been in the position of the Salem accused; nobody taking them seriously, nobody listening and justice denied. The journey to correct this has only started with things like the “Me Too” movement.

But, like all movements, reactions, corrections, we have to be careful not to go too far in the other direction. Correcting one injustice by creating another is not a solution that accords with the Rule of Law. I recently saw a hashtag called “Believe Women”. That sounds like a sensible hashtag within the context of the “Me Too” movement, but within it lies a danger. Namely that someone should be believed (or not) simply because of an attribute rather than because they have a legitimate claim, supporting evidence and a right that needs protecting. The idea that a person should be believed simply because they have a particular attribute is as perverse as not-believing someone for the same reason. Irrationality and the absence of the rule of law leads to injustice.

This leads me to the sensational Depp/Heard trial for defamation and the accompanying claims of abuse by both parties against the other. I have watched much of the trial. Along with it has come social media commentary with hashtags such as “Team Heard” or “Team Depp”. Some people claim that we should believe Heard/Depp (take your choice) because of “Me Too” or because ”men can be victims too” (take your choice). These are both bandwagons that need no proof, no due process, no rule of law. As I said, to believe someone because of an attribute about them rather than evidence leads to injustice. Then positions are adopted (by both sides) from the same perspective as the Salem accusers; because I accuse you must be guilty. It is fundamentally flawed.

The innocent, victims, need protecting but it is only through the rule of law that we can hope to achieve this. Throwing slogans around which seem to obviate the need for evidence simply leads to injustice. Believing one person’s evidence over another because of who they are is perverse. I should not support Amber Heard just because she is a woman as much as I should not support Johnny Depp because he is a famous movie star. So instead of taking extreme positions, I ask that everyone remember that the position we ought to take is one that is tried and tested as a working principle for stable justice systems; view the evidence and decide each case on the merits of the arguments and the law. Do not support one side or another simply because they have an attribute that you happen to support. Salem is not a model for the rule of law and we must always be careful to avoid that slippery slope. I’m not on “Team Depp” or “Team Heard”. I’m on “Team Rule of Law”.

Ian McDougall is President of the LexisNexis Rule of Law Foundation. To learn more about the Foundation, its projects and its partners, click here.