Re: Johnny Depp/Amber Heard


Ongoing impact. Please no one call this celebrity drama/bullshit/whatever.

Posted by: Minivet | Link to this comment | 06- 2-22 5:56 AM
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Subscription wall; Taylor Lorenz takes from it "'Hundreds' of domestic violence survivors have already retracted victim statements & pulled out from court cases as a result of watching the trial."

Posted by: Minivet | Link to this comment | 06- 2-22 5:58 AM
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This is a trend, or something -- defining talking about sexual assault or domestic violence as a new, independent offense. There was an NYT article saying that in Sweden it can be defamatory to make public statements about rape even when the perpetrator had been convicted:

Posted by: LizardBreath | Link to this comment | 06- 2-22 8:01 AM
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I'm disappointed by the verdict (for the reasons given in the link in 1), but I'd also be curious to see any articles explaining what was the actual nub of the case. I haven't seen anything that would explain how it met the standard for defamation (by contrast, for example, after the Rittenhouse verdict I saw a number of pieces saying, "this is frustrating but makes sense because the law does not cover the situation very well").

Posted by: NickS | Link to this comment | 06- 2-22 8:20 AM
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4: I haven't seen discussion on that topic, but I surmise it comes down to, the original "allegation" (the eleven words) was extremely vague but Depp alleged that it was indirect defamation, and while the judge could perhaps have thrown it out on that basis, he instead let the question be decided by a jury, which then become subject to all the character assassination against Heard. There's other evidence the judge did not treat the case with proper care: a potential juror said he was receiving texts from his wife about Heard being "psychotic" and was left in the jury pool.

There was also an anti-SLAPP motion early on but apparently Virginia's law is weak there and once again Depp's assertion it was defamation in practice was enough to get past that hurdle.

Posted by: Minivet | Link to this comment | 06- 2-22 8:50 AM
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It's wild that they didn't sequester the jury. The whole thing is incredibly dark and ominous.

Posted by: teofilo | Link to this comment | 06- 2-22 9:07 AM
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I would like to see an explainer from a defamation lawyer, not on the larger implications but just on what happened. I am really stuck on the apparently inconsistent jury verdict, where she defamed him by calling herself an abuse victim in a way that indirectly referenced him, but he defamed her (one fifth as much) by having his lawyer say she faked evidence of abuse.

Posted by: LizardBreath | Link to this comment | 06- 2-22 9:25 AM
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My guess is that while the jury probably couldn't agree on who was telling the truth and who was abusing who, they could agree on a few basic facts.

1) They were both yukky.

(so both found guilty)

2) Johnny Depp is the bigger star, and so had more to lose by defamation

(so he got more money)

Posted by: peep | Link to this comment | 06- 2-22 9:30 AM
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The amount of money they both lost is much greater than what is being sued for, right?

Posted by: Moby Hick | Link to this comment | 06- 2-22 9:32 AM
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8: They may have disliked both but I can't imagine they didn't end up disliking Heard more, based on how she was treated and media'd.

Posted by: Minivet | Link to this comment | 06- 2-22 9:39 AM
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And acting on that dislike, to be clear.

Posted by: Minivet | Link to this comment | 06- 2-22 9:59 AM
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5 If Heard didn't try to strike that juror for cause, then I'm not going to be wound up about the judge not doing so. By and large, the parties pick the jury, with the judge resolving disputes between them.

My supposition is that there probably are decent appeal issues for Heard, if she's not too exhausted to pursue them.

The publicity environment here is beyond toxic. You're always going to have this with celebrity litigation, but televising trials looks, to me, to be an unmitigated disaster for the litigants, the process, and society.

7. Yeah, it's not immediately evident. It looks like that think both of them are liars -- the point would have been better made if they awarded each of them $1. I didn't follow closely enough, but I would think that even if they couldn't make full use of Depp's libel loss in the UK on liability, it should have been a pretty good argument on damages. How do you parse between his loss of income from her WaPo op-ed and his having a UK court say that a statement that he is a wife-beater is true? Did they try this and get shot down? Did they do it successfully, and that's why damages are 'only' 10 mill?

Posted by: CharleyCarp | Link to this comment | 06- 2-22 10:24 AM
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(And there are all sorts of reasons why you wouldn't use a peremptory strike on a particular juror, including that you really don't want the next one in line.)

Posted by: CharleyCarp | Link to this comment | 06- 2-22 10:28 AM
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5. On the defamation point, I guess I've worked on a couple over the years, and my first real litigation was a defamation case; actually product disparagement, but the law is essentially the same We got out on a ruling that the statements in question were not 'of and concerning' the plaintiffs' product. I think Depp clears that hurdle wrt the WaPo article, but IANAVL.

Posted by: CharleyCarp | Link to this comment | 06- 2-22 10:33 AM
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Trial and appeal judges have a lot of discretion to mark down jury-awarded damages, right? Who knows.

Posted by: Minivet | Link to this comment | 06- 2-22 10:34 AM
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I've been getting into Twitch, and I saw some of the toxicity there - a streamer saying "Oh my god, I hate her so much, she's a monster." Streamers usually stay away from even vaguely political issues like the plague, but this sneaks through as celebrity content.

Posted by: Minivet | Link to this comment | 06- 2-22 10:38 AM
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(Political issues like the plague? Take it away, Moby.)

Posted by: Minivet | Link to this comment | 06- 2-22 10:39 AM
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I join those who find Depp's libel case inexplicable -- but I'd like to see someone try to justify it as a legal matter.

I get, in theory, how the UK case (where there are much tougher libel laws) could go against Depp while he won his US case. In the US, Depp was acting against someone who 100% knew the facts of the case, and who could therefore could more easily be found to have acted with actual malice (a key US issue).

What I don't get is that Depp more-or-less admitted to the relevant content of the oped piece. How is it that the trial got so far afield into issues of Heard's alleged abuse? I don't have anywhere near enough info to develop an intelligent opinion, but from what I know, Heard's attorney's look really bad, and the judge doesn't look great. (And the jury is plainly composed of assholes.)

I think I can grasp why the judge let the case go to trial; I can kinda see how the judge let it go to the jury; I can even come up with a rationale for why the judge does not now overturn the jury verdict. But I hope Heard appeals.

Posted by: politicalfootball | Link to this comment | 06- 2-22 10:48 AM
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The other case this reminds me of is the Nungesser case. Remember that one? We talked about it here. A Columbia student said Nungesser raped her, and Columbia's Title IX process did not substantiate her accusation. So she did an art project where she carried her mattress around the campus to symbolize the weight of having been raped on her, and he sued Columbia for not compelling her to quit it.

It seems very conceptually similar.

Posted by: LizardBrearh | Link to this comment | 06- 2-22 11:01 AM
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Because of non-traditional mattress use?

Posted by: Moby Hick | Link to this comment | 06- 2-22 11:04 AM
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@19 True. And Columbia settled the suit and apologized for his treatment.

The Columbia student affiliated herself with the intellectual dark web and began dating a man whose nom de guerre is Chad. An intentional reference to "the incel term for men who, due to serendipitous genetics, are attractive enough to have oodles of sex."

Life is weird.

Posted by: | Link to this comment | 06- 2-22 11:18 AM
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19: As a legal and administrative matter (and as an artistic matter) the Nungesser case kind of makes sense to me, in that I can understand an intelligible rationale for each of the actors to behave the way they did. Nungesser's suit against the school was originally dismissed and later confidentially settled with Nungesser apparently getting a public statement from the school that didn't admit any fault but that expressed sadness about what a tough time Nungesser had.

So you've Nungesser, Sulkowicz, the school's judicial process, the school overall and the court all acting in ways that I can comprehend. That's what I'm lacking with Depp: A sense that anybody's actions -- besides those of the Depp faction -- made any kind of goddam sense at all.

Posted by: politicalfootball | Link to this comment | 06- 2-22 11:20 AM
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That's what I'm lacking with Depp: A sense that anybody's actions -- besides those of the Depp faction -- made any kind of goddam sense at all.

Yeah, I feel this way too. It's totally obvious what Depp was trying to do, and it was spectacularly successful. But why did everyone else act in a way that made that possible?

Posted by: teofilo | Link to this comment | 06- 2-22 11:24 AM
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21: You say the school issued an apology; I say the school didn't admit fault. Here's how Wikipedia (my source) describes it:

The university said in a statement that Nungesser was cleared "after a diligent and thorough investigation. Columbia University stands by that finding." They continued, "Columbia recognizes that after the conclusion of the investigation, Paul's remaining time at Columbia became very difficult for him and not what Columbia would want any of its students to experience. Columbia will continue to review and update its policies toward ensuring that every student -- accuser and accused, including those like Paul who are found not responsible -- is treated respectfully and as a full member of the Columbia community."

Posted by: politicalfootball | Link to this comment | 06- 2-22 11:27 AM
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I don't actually understand how the trial got so weird, but bias or incompetence from the judge would be enough. Heard's lawyer could certainly have made some bad decisions, but weird judging would do it.

Posted by: LizardBreath | Link to this comment | 06- 2-22 12:31 PM
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In the very early days of word-processing, we used to joke that the Maryland appellate court had two macros -- punch those keys and an opinion comes out: Control-H for harmless error and Control-P for not preserved at trial. Judgment affirmed, easy peasy.

Now it's probably just find and replace the parties' names.

Posted by: CharleyCarp | Link to this comment | 06- 2-22 12:45 PM
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25.1 seems like the only plausible explanation to me.

Posted by: Unfoggetarian: “Pause endlessly, then go in” (9) | Link to this comment | 06- 2-22 1:18 PM
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Yeah, that makes sense. Most of the key decisions do seem to have been in the hands of the judge.

Posted by: teofilo | Link to this comment | 06- 2-22 1:32 PM
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Televising a trial about domestic violence seems like a horrible decision. Televising a trial about DV involving such high-profile celebrities, and then not sequestering the jury, seems truly insane.

Posted by: jms | Link to this comment | 06- 2-22 1:44 PM
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About that judge...

Posted by: teofilo | Link to this comment | 06- 2-22 3:55 PM
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The whole thing is incredibly dark and ominous.

What, miscarriage of justice as mass entertainment seems vaguely dystopian? I dunno, let's wait and see.

(The "Gamergate led directly to Trump" thesis is one of these things that I feel in my guts to this day, no matter how ludicrous (quite ludicrous) my rational mind finds it.)

Also, I honestly hope Michael Hobbes has a good cardiologist. Poor guy.

Posted by: lurid keyaki | Link to this comment | 06- 2-22 4:13 PM
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Huh, Amber dated Elon.

Posted by: ogged | Link to this comment | 06- 2-22 4:42 PM
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30: jfc

Posted by: heebie | Link to this comment | 06- 2-22 4:44 PM
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32: wow, she has a knack.

Posted by: heebie | Link to this comment | 06- 2-22 4:44 PM
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Hobbes's full writeup is well worth reading if you have the stomach for it.

Posted by: teofilo | Link to this comment | 06- 2-22 4:45 PM
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32: !?

Posted by: Swope FM | Link to this comment | 06- 2-22 4:47 PM
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The link in 3 might even be worth a post on its own. I remember reading it, but I don't remember if it was linked here?

Posted by: lurid keyaki | Link to this comment | 06- 2-22 6:49 PM
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I read that they don't even feed people in Sweden.

Posted by: Moby Hick | Link to this comment | 06- 2-22 7:52 PM
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Yet another step on the road to hell for which we can (partially) blame Facebook:

Posted by: jms | Link to this comment | 06- 2-22 9:07 PM
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7: I haven't followed the trial, but is that inconsistent? He didn't beat her (so saying he did is defamation) but, although Heard said falsely that he beat her, she didn't actually fake physical evidence, which would have been worse (so saying she did is defamation even once you've accepted she made false statements).

Posted by: Ajay | Link to this comment | 06- 3-22 2:57 AM
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I have not been following in detail at all, so possibly it's reconcilable, but not if the physical evidence that he attacked her does exist in the real world and does convincingly show that he did, right? That is, the lawyer's statement is that she faked the evidence. The jury verdict is that she didn't fake the evidence, but he also didn't abuse her. To reconcile them, don't you have to believe either that (1) there never was evidence of the sort the lawyer was talking about -- the lawyer's words were pure fantasy, which would be strange. Why would Depp's lawyer make up the existence of physical evidence Depp had attacked Heard just to say it was faked? Or (2) the evidence exists and Heard didn't fake it, which I suppose is (2a) it wasn't faked, it just doesn't show what it seems to show, or (2b) some third, non-Heard party was framing Depp.

Those all seem not logically impossible, but absurd in the real world. Which of them were you thinking was what the jury might have reasonably believed? Or am I missing another possibility?

Posted by: LizardBreath | Link to this comment | 06- 3-22 3:54 AM
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No idea, I'd need to look into the details of the case. I suppose if it was something like broken furniture etc then it would be slander to say "AH broke that deliberately to fabricate evidence" when in fact JD smashed it himself, deliberately or accidentally.

Posted by: Ajay | Link to this comment | 06- 3-22 4:00 AM
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So, something in the 2a category -- there's real evidence that is being treated as evidence that Depp abused Heard, Heard didn't fake it, but despite that fact the preponderance of the evidence is that Depp never abused Heard.

That still hits me as not impossible, but unlikely enough that I'm comfortable calling the jury verdict inconsistent.

Posted by: LizardBreath | Link to this comment | 06- 3-22 4:16 AM
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Another possibility, and this isn't a view I am endorsing but I can see how it might be a view some people can take, that the basic facts--that Depp was a terrible drunk prone to violent outbursts, that he lashes out at Heard on more than one occasion, etc--are undisputed but the jury don't take that to be an instance of an abusive relationship of the kind alluded to in Heard's article. That is, they think, "This is a shitty dysfunctional relationship on both sides, and there has been violence and harsh and demeaning language on both sides. This is a horrible marriage, but it's not one where a fair portrait of that would be that Heard is a victim in a one-sided abusive relationship with an abuser, therefore, the article is defamatory in some sense or other."

I'm convinced, on the basic of the couple of in-depth articles I've read, that that's not the right outcome or the right way to characterise the relationship, but I could see how someone listening to the court testimony and exposed the misogynistic narrative in a lot of social media and the press might come to that conclusion.

Posted by: nattarGcM ttaM | Link to this comment | 06- 3-22 4:44 AM
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Yeah, I think you're right about what they were actually thinking: that bad behavior on both sides netted out against each other such that while they believed he acted violently toward her, she had it coming to the extent that she was defaming him by characterizing his violence toward her as 'abuse' in light of the whole relationship.

This is kind of horrifying not only in light of my impression of the specifics of this case, but in general: if two people are both behaving equivalently abusively toward each other, that does not net out to "everything's fine". That nets out to "they're both being abused and whichever one of them will accept help to get them away from each other should get that help."

Posted by: LizardBreath | Link to this comment | 06- 3-22 5:21 AM
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The funny implication of that thinking is that it wouldn't have been defamatory of her to say "I was head butted in the face" if that's one of the incidents that there's evidence for. It's just calling it "abuse" that's defamatory.

Posted by: LizardBreath | Link to this comment | 06- 3-22 5:29 AM
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I think that's a defensible argument. Not all violence that happens in the home between partners or family members counts as domestic violence.

Posted by: Ajay | Link to this comment | 06- 3-22 6:56 AM
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The problem with 43 and 44, is this is the US where we have a ridiculously broad right to freedom of speech. Like surely if those are the facts she's entitled to her opinion that it was abuse.

Posted by: Unfoggetarian: “Pause endlessly, then go in” (9) | Link to this comment | 06- 3-22 7:03 AM
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Which is just to say, I don't understand how this went to a jury trial and how there weren't some clearer instructions to the jury. Which leaves me again to the judge is just awful at their job.

Posted by: Unfoggetarian: “Pause endlessly, then go in” (9) | Link to this comment | 06- 3-22 7:06 AM
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Not all violence in the home is domestic violence, I could see an argument for -- something that's technically violence but doesn't get to a level of intensity, duration, or repetitiveness that makes it abusive. But where you've got behavior that would appear to be abusive in isolation, I think downgrading it to not abusive on the grounds that the bad behavior is two-way is very misguided.

Posted by: LizardBreath | Link to this comment | 06- 3-22 7:06 AM
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48, 49: Right, that too. There are subtleties, but as a general rule defamation requires false statements of fact, rather than of opinion. The jury would have had to believe that the facts were such that characterizing his treatment of her as abuse was factually false, not a possible statement of her opinion of the facts as they were.

Posted by: LizardBreath | Link to this comment | 06- 3-22 7:14 AM
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Another element has to be whatever instructions allowed the jury to judge her statements as allegations against one person rather than for their face value. ("I became a public figure representing domestic abuse," "I spoke up against sexual violence", "I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.") Right?

Posted by: Minivet | Link to this comment | 06- 3-22 9:17 AM
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50 is an interesting point - if two people have regular physical fights in which each gives more or less as good as they get, is it still accurate for one of them to say "I was a victim of abuse by my partner, who is an abuser"? I think most people would say no. There's a general assumption that abuse has to be one-way. Maybe that assumption is wrong or dangerous but it's still probably what most people think.

Posted by: Ajay | Link to this comment | 06- 3-22 9:21 AM
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52: I don't think a reasonable person reading those would interpret them as meaning anything other than "I, personally, was abused by my husband". Did AH actually use the defence that the statements weren't meant to refer to him?

Posted by: Ajay | Link to this comment | 06- 3-22 9:24 AM
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52, 54: That is both something that does need to be established with evidence, and something that seems like it was probably pretty easily established in this case.

53: A mutually symmetrically violent but not abusive relationship seems like something that's theoretically possible, but absolutely implausible to me. I'll have to think about whether I can explain why.

Posted by: LizardBreath | Link to this comment | 06- 3-22 9:40 AM
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Because you're not Italian.

Posted by: Moby Hick | Link to this comment | 06- 3-22 9:58 AM
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Start with this: if you're giving a reason for why you hit your partner (in a manner serious enough that in isolation it would be reasonable to call it abuse), "they just made me so mad!" is not a sufficient reason to make it not abusive, even if you have a real grievance: they really did flirt with other women, or refuse to do their share of the housework to your standards, and even if a reasonable person would have viewed them as having behaved very badly. And even if your real grievance includes that they have hit you in the past, that's not license to hit them and have it not be abusive, barring the exceptions I'm about to lay out.

The obvious one is self defense (or the defense of others) and that can get muddy around the edges in terms of minimal proportional force, or situations where an abuse victim injures or kills a sleeping or incapacitated abuser. But where you're talking about a violent relationship where each "gives as good they get", it can't all be self defense.

So you need something like an implicit or explicit mutual agreement to hit each other and accept that they will be hit in return, that both sides have chosen to enter into, to make partner violence not abusive in the absence of self defense as a justification. Explicit would be something like literally a boxing match. Implicit would, I guess, be something where a couple has "fair fights" that neither one of them would prefer to avoid either in the moment or in retrospect: this is hard for me to picture except as fiction, but I guess they find it to be some kind of emotional release and aren't worried about injury? But I think that kind of implicit permission to hit someone has to be thought of on an event-by-event basis -- just because you have mutually agreed to fight someone in the past doesn't make it not wrongful for them to hit you on an occasion when you haven't even implicitly agreed to it, and you don't want to be hit.

And I just don't believe in the implicit mutual agreement to be violent type of relationship as being likely at all, particular between couples as physically mismatched as most heterosexual couples. And my sense of the allegations in this trial doesn't fit that model well either -- they're both telling stories of when the other party behaved violently without immediate justification in the form of symmetrical violence.

Tl:dr -- Bad behavior from your partner is not a get-out-of-being-called-an-abuser free card, if you're using more than reasonable force necessary to protect yourself and remove yourself from the situation.

Posted by: LizardBreath | Link to this comment | 06- 3-22 10:42 AM
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Way back in the archives, I mentioned that my relationship with BOGF was at least borderline abusive: emotional/manipulative stuff to the side, she absolutely struck me (rarely) and intentionally caused me pain (more often), and during the breakup once threw a knife at me. But I'm 6-1 and she's 5-1, and I don't think anyone would (or should) take seriously me calling myself a survivor of abuse or whatever.

Furthermore, I definitely used my size and strength to restrain her. I have not a whit of doubt that I did nothing wrong and never caused her any physical harm, but it wouldn't shock me to learn that she told her intimates that it was something closer to mutual abuse, and given our relative physical sizes, if she wanted to paint a picture where I was the primary abuser, well, it's rarely possible to prove what happens behind closed doors*.

All of which is to say that IME 55.last is more plausible than you think. And, more importantly, I think that framework makes sense to a lot more people than you and I wish. I don't think anything that ever happened in my relationship left even a light bruise (probably a scratch or two?), but if our sizes had been more similar and/or my personality were different in a dimension or three, I could see more or less the identical dynamic ending up with actual physical evidence. To be clear, I'm not saying--at all--that this describes the underlying situation in the legal case (Depp clearly was quite violent and caused real harm, and it doesn't seem to have been mutual fights that escalated to violence, but rather an angry drunk taking out his anger on his wife, who I guess at other times hit him?), just that the model of a bad relationship that escalates to mutual (not necessarily balanced, but mutual) violence isn't just a MRA fantasy. And that many people wouldn't buy either of those people proclaiming themselves victim of an abuser.

*in practice I think she knows and feels guilty that she was shitty, so I'm sure she's never told a soul about anything physical

Posted by: JRoth | Link to this comment | 06- 3-22 1:12 PM
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A couple further thoughts:

We flaneurs and persiflageuses mostly live in a world where interpersonal violence is all but absent: kids aren't spanked, or even grabbed roughly, men wouldn't think of "taking it outside", and the threshold for "assault" is a light push, not a cold-cock. I know all too many have experienced DV, but it's understood as such (even if only in retrospect). But a lot of people don't live in that world, and view occasional violence as just part of life. So the line on that stuff is both fuzzier and more permissive than we here tend to think.

On the separate note of mutuality, maybe it's useful to think about cheating as a model for blame. Open relationships are more common that LB's boxing matches, but not by a lot. More common however are relationships where neither partner is perfectly faithful. Most people, I think, would agree with someone with a zero tolerance cheating policy, but once both partners have cheated, it becomes a gray area where people are less willing to pass judgment (beyond scorning both or siding with whoever they're closer to). You could have a man fathering kids all over town, and if the woman kissed her ex once, people will view it as roughly balanced (and yeah, the man will tend to get the benefit, same as in the trial).

Again, none of this is to defend the jury as such, just to say that I think their apparent mindset is a lot more recognizable than we wish.

Oh, and I'd add that I presume most juries are fuzzy on the legal niceties as such, and essentially vote their guts. So if their guts say it was mutually abusive but they like JD more, he wins--uniess the judge instructs them very well. Which leads us back to 30.

Posted by: JRoth | Link to this comment | 06- 3-22 1:28 PM
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I'm not quite sure how your relationship with BOGF, in which, if I understand you correctly, she was violent toward you, and you used your superior strength to defend yourself without hurting her, supports your conclusion that symmetrically violent but not abusive relationships are plausible. That is, your relationship wasn't symmetrically violent -- it was either abusive or not depending on whether her behavior was intense enough to call it abuse, which you'd be the best authority on. What does that tell you about the plausibility of relationships like the one in 55.last?

Posted by: LizardBreath | Link to this comment | 06- 3-22 1:39 PM
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I agree with JRoth on the plausibility of 55.last, insofar as you can easily have two people with more anger than what they know what to do with, but it's more about doing physical things that will emotionally hurt ("I can't believe he/she crossed that line") than actually beating the other person to a pulp. I think slapping someone across the face can be a good example of that. (Obviously you can slap someone so hard that you are trying to injure them, and you can also laugh off a slap and not feel emotionally hurt. But it's easy for me to picture a slapping situation that's in the middle.) Or a man restraining a woman's arms more than necessary - he can be doing it out of anger, and she might not have the fear-response of actual physical abuse, but instead be incredibly angry and hurt that he'd restrain her like that.

Posted by: heebie | Link to this comment | 06- 4-22 6:41 AM
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Or assuming he's stronger and bigger, things where he's displaying physical dominance in almost a taunting way, without her believing that he'd actually hurt her, and she's lashing out with scratching and kicking, and trying to precisely land on the line of hurting him the right amount but not too much. Not like you'd theoretically try to fight off an attacker, but more like you'd try to fight off a sibling.

Posted by: heebie | Link to this comment | 06- 4-22 6:46 AM
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Note that the Washington Post continues to publish these statements. (The paper did add a note describing the verdict.) So even after the statements were found in court to be false and defamatory, the Post hasn't retracted or corrected. I guarantee the Post made this choice consulting with attorneys.

No reasonable court would find against the Post in this circumstance, and no reasonable court delivered a verdict against Heard.

Posted by: politicalfootball | Link to this comment | 06- 4-22 9:40 AM
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I don't know that 57 was clear, or even that I successfully said what I meant in it at all, but 61 and 62 don't seem to me to be getting at what I mean. That is, sure, there are relationships with sort of stylized mock violence -- they're really angry and they're really fighting, but the violence isn't an attempt to do any meaningful damage, no one's seriously getting hurt or is seriously frightened they will be. I disapprove of that sort of thing, partially because relationships like that hard to tell from significant abuse, but sure, it's the sort of thing that can happen.

What I want to argue, and what I think the Depp/Heard jury disagrees with me about and is very misguided to do so, is that the difference between that sort of relationship and abuse isn't the mutuality, it's the intensity. If no one's seriously hurt or terrorized, fine, dramatic people can do what they want. But if the individual incidents are such that you'd call them significant abuse, they don't get downgraded to just drama because you can point to another incident where the other party looks like the abuser.

Posted by: LizardBreath | Link to this comment | 06- 4-22 10:59 AM
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And something like that had to have been the jury's thought process, if you can call it that. They found that she didn't fake the evidence of one violent assault, which isn't exactly the same as finding that it did happen, but pretty close to it. So assuming they believed that incident happened, they have to have believed that the totality of the relationship included acts from her that in context rendered his assaults on her not just not abusive, but so completely distinct from abuse that it was defamatory of her to imply that he abused her.

I don't think they were likely to have believed that none of the bad acts were significant. It looks more like they believed that she had acted badly enough that she was fair game; acts that would be abusive against an innocent woman weren't abusive against her. I think that's a really bad way of thinking about abuse.

Posted by: LizardBreath | Link to this comment | 06- 4-22 11:12 AM
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For the record, I agree with LB's take here and AIMHMHB, J Roth, I think it's entirely accurate to label the relationship you've described as abusive and as an example of domestic violence.

Posted by: J, Robot | Link to this comment | 06- 4-22 1:19 PM
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61.last and 62 capture the dynamic I was trying to express. I only grabbed her wrists to keep her from hitting me, but can I claim with certainty that I only used enough force to accomplish that goal, as opposed to hurting her back or making her feel powerless? No.

That said, I agree with 64.last, but I think the jury was not an outlier in their position. But I'm not sure I believe that 65.last accurately describes their mindset, partly because, again, I don't think they thought through the implication at the end of 65.1 as logically or rigorously as LB*. I believe that, goaded by a bad judge, their process was something like: 1. it was a mutually abusive relationship; 2. JD didn't do anything horrifically abusive**; 3. therefore, JD is correct that AH was being unfair to him, and he should win. It's a mockery of justice and a good example of why the jury system fails a lot, but I don't think it's 12 people who would recognize themselves as holding the position on 65.last (probably some would, some wouldn't).

*actually, I can say with certainty they didn't do that because almost nobody thinks through things as logically or rigorously as LB. But even lowering the standard, I don't think they were thinking rigorously at all

**I don't know exactly what the worst alleged or confirmed behavior is--I've read only a bit--but A. AFAIK it wasn't call-an-ambulance stuff, and B. I suspect the jury downplayed whatever the allegation was. Not saying this to downplay what was obviously serious abuse, but clearly these people are thinking on a spectrum where JD was somewhere on the less abusive end

Posted by: JRoth | Link to this comment | 06- 4-22 2:30 PM
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I had actually managed to avoid most of the news, since I'm avoiding news in general. That Hobbes piece was pretty damning and makes me glad I can't remember the last time I saw a Depp movie after the third Pirate movie came out (which I think was well before I had any awareness of these issues.)

It still makes a little sad though, b/c he was always a little more human to me because when 21 Jump Street was new and buzzy my classmate's mother was some kind of mid or low level producer person, worked with him, and apparently took him under her wing a bit; and once at a slumber party when we were discussing the buzzy show she said "Johnny Depp was sitting in that chair right there yesterday," and turned that into a bit of a speech about how he had worked hard and gotten the role and was now becoming famous, and we should understand that becoming a famous actor or actress required hard work too.

Posted by: Ile | Link to this comment | 06- 5-22 12:02 PM
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I wonder if Heard could have invoked the arbitration clause in her NDA, and kept this out of the public eye.

I also wonder whether she wrote a word of the article, or just ratified it after the lawyers had gone over it.

My current theory of the thing is that jurors were convinced by the little inconsistencies that Heard is something of an exaggerator, and grabbed for a national spotlight just as her movie was coming out to take a whack at Depp, having promised she wouldn't, in exchange for a pile of cash. Did she really feel the full force of society's hostility to women in 2016? Turns out she didn't. And the jury also thought that the underlying substance of what she had to say was true, and so the claim that it was all a hoax was also a lie.

She was looking for $100 mill, but they gave her twice what she made on the first Aquaman movie and the same amount she'll make on the sequel. Depp makes a lot more, and so 10 mill to him is maybe a recognition of not that much of an injury. That's like half what he gets for a movie.

Posted by: CharleyCarp | Link to this comment | 06- 5-22 2:49 PM
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You sound like you think the verdict makes sense if you regard it as splitting the baby between two irritating people. It really, really doesn't. The only way to read the op-ed as defamatory toward Depp is if it is categorically false of her to imply that he abused her. If the jury believed that he abused her but it wasn't that bad, or he abused her but she did some bad stuff too, they got the verdict wrong.

Posted by: LizardBreath | Link to this comment | 06- 5-22 3:21 PM
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Her statements weren't exactly "he abused me" but were a little more complicated than that:

(1) "I spoke up against sexual violence -- and faced our culture's wrath. That has to change."

(2) "Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture's wrath for women who speak out."

(3) "I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse."

Now, I would not have found these statements to be defamatory, even a little bit, and certainly would have ruled any evidence about her conduct towards him as irrelevant. The second sentence in (1) and probably the second half of (2) are statements of opinion. I don't see any conceivable way that (3) could be untrue, except, obviously, that this isn't rare at all.

Obviously, the court must have ruled at some point that 'he abused me' could be implied from these statements, or it couldn't have let the case go forward. But she's saying more than that, it's maybe more like 'he abused me, and the aftermath showed how fucked up society is.' Which, again, true imo. But I kind of think they might not have been completely disregarding instructions to find that 'it's all a hoax' is untrue, and also that these statements are a little over the top. I wouldn't have ruled that way. And maybe she'll be able to get this reversed.

Posted by: CharleyCarp | Link to this comment | 06- 5-22 3:43 PM
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I am trying not to become insane with rage here. But "might not have been completely disregarding instructions" to award ten million dollars to compensate him for the damage done to his reputation because she said some things that struck the jury as "a little over the top"? What are you imagining was the content of those instructions and their relationship to the elements of defamation?

Posted by: LizardBreath | Link to this comment | 06- 5-22 3:49 PM
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I don't mean to enrage you. The verdict is outrageous. They obviously found some way, in their own minds, to slice the salami, and I just have a theory what that might have been. I'm not saying I think it's justified at all.

Maybe the theory that they hated the circus, hated them both, and whacked them both, regardless of the law, is a better description.

Posted by: CharleyCarp | Link to this comment | 06- 5-22 4:10 PM
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Sorry, I just thought you were implying that there was a way to reconcile the verdict with some plausible set of jury instructions, which seemed dubious. And when I say dubious, I apparently mean "in the category of things that cause me to reveal how tightly wound I am in some contexts."

Posted by: LizardBreath | Link to this comment | 06- 5-22 4:13 PM
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The fact that there still (AFAICT) haven't been any viral explanations of the verdict by defamation lawyers suggests strongly that it does not in fact make any sense and is not due to any idiosyncratic quirks of defamation law.

Posted by: teofilo | Link to this comment | 06- 6-22 12:20 AM
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This thread has sometimes not been careful about distinguishing between: 1.) "This is plausibly the jury's thinking" and 2.) "This is plausible thinking by the jury."

Posted by: politicalfootball | Link to this comment | 06- 6-22 4:55 AM
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