HOW MANY MORE WOMEN?

Certain sections of this book have been redacted on legal advice, due to the
possibility that the timing of its publication may coincide with the date of
the criminal trial concerning allegations of rape made by Brittany Higgins
where the accused has pleaded not guilty. Following that trial, this book
will be updated and reprinted without redactions. You can use the QR code
above to access the redacted pages once the trial has concluded. Further
information about the book, resources and a full bibliography can also be
accessed via the QR code or by going directly to:

www.allenandunwin.com/howmanymorewomen
Jennifer Robinson is a barrister at Doughty Street Chambers in London.
She has acted in key human rights and media freedom cases in domestic
and international courts. Jen sits on the boards of the Grata Fund, the
European Center for Constitutional and Human Rights and the Bonavero
Institute of Human Rights at Oxford University, and is a trustee of the
Bureau of Investigative Journalism.

Dr Keina Yoshida is an international lawyer, and a barrister in England,

Wales and Ireland. Keina is currently a legal adviser at the Center for
Reproductive Rights, an associate tenant at Doughty Street Chambers, and a
visiting fellow at the Centre for Women, Peace and Security at the London
School of Economics and Political Science. Keina is co-editor of Feminist
Conversations on Peace (Bristol University Press, 2022).
First published in 2022

Copyright © Jennifer Robinson and Keina Yoshida 2022

All rights reserved. No part of this book may be reproduced or transmitted in any form or by any
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whichever is the greater, to be photocopied by any educational institution for its educational purposes
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 CONTENTS

How many disclaimers?

Prologue: His intention was to silence, not to kill
Introduction: How many women?

1 Silencing Justitia
2 How many women are silenced?
3 What happens when women speak?
4 Her guidebook to his playbook
5 Contracted to silence
6 Defamation on trial
7 Her truth on trial, twice
8 What about her rights?

Conclusion: Free her speech

Acknowledgements
Chapter notes
Index
 To the many women who are silent, who have been silenced and
who have broken their silence. This book is written in the hope
that we can better protect women to transform silence into action
—and change.
 A NOTE ON LANGUAGE

Many of those speaking out are women and girls who seek to shine a
spotlight on sexual and gender-based violence. In this book, we will
often refer to women and girls in an inclusive sense but are acutely
aware that misconduct, harassment, abuse and rape affect people of all
genders, including those who are trans, non-binary and gender non-
conforming. This is important. In Japan, for example, rape laws
excluded men and boys until very recently. Men and boys are also
victims and survivors of sexual abuse, rape and harassment. That
beacon of feminist thinking bell hooks reminds us that ‘patriarchy has
no gender’. She has explained that ‘The enemy of feminism isn’t men.
It’s patriarchy. And patriarchy is not men. It is a system. And women
can support the system of patriarchy just as men can support the fight
for gender equality.’ Her work seeks to emphasise the tyranny of
patriarchy and toxic masculinity. Thus, while we focus here on women
and girls’ experiences, we do not exclude men and boys and much of
what we say will be relevant to everyone. But focusing on women and
girls is important, as it allows us to shine a spotlight on sexism, gender
stereotyping and patriarchal laws that tend to oppress and discriminate
against women and girls.
 HOW MANY DISCLAIMERS?

It is necessary for us to make a disclaimer. In fact, a few of them.

This book should not be taken as asserting the truth or as claiming to
know the truth about the allegations of gender-based violence contained
within its pages.
Every man named in this book vehemently denies all allegations—
allegations that often relate to matters that typically happen in private,
behind closed doors.
This book isn’t really about the truth of any of these allegations: it is not
an assessment of the evidence or a statement of facts. We raise the
allegations to prompt discussion of a series of questions: what happens
when women speak out about their alleged experience of gender-based
violence? Have we created a legal system that is just, fair and equitable? Do
we think the right balance is being struck between protecting a man’s
privacy and reputation and allowing women to speak about their
experiences?
We are not saying that any man or lawyer or judge named in this book is
intentionally silencing women—not even the men bringing or threatening
legal action. They are seeking to protect their reputation, their privacy and
the confidentiality promised to them under contract. We are merely pointing
to the effect and impact of the law.
This legal disclaimer is one of the results of these laws. The team of
lawyers who combed over our draft for defamatory imputations are a result
of these laws. The ever-present threat of legal action for any material
published about these allegations is a result of these laws. It would of
course be a great irony if we were to be sued and silenced for this book,
which is itself about how women are sued and silenced. But irony is no
protection in the law.
And one final disclaimer:
This book is not, and should not be taken as, legal advice. There are civil
and criminal laws on privacy, contract, defamation, contempt of court and
anonymity that are jurisdiction-specific and apply depending on where you
are and the individual circumstances of each woman and each case. If you
have experienced gender-based violence and want to speak out, you should
always seek independent, specialist legal advice. These areas of law are
notoriously difficult to navigate, and decisions taken on the spur of the
moment can have long-lasting consequences.
We want to say one more thing: we believe you. And we believe that
your right to speak about it should be better protected. We have written this
book as a way of passing on what we know in the hope it might be useful to
you in some way.

In care and solidarity,

Jen and Keina
 Prologue

HIS INTENTION WAS TO

SILENCE, NOT TO KILL

In December 2012, Nicola Stocker posted a comment on the Facebook

status update of her ex-husband’s new partner, Deborah Bligh. This
prompted an exchange of comments between the women about Mr
Stocker’s history of violence:

NICOLA STOCKER: ‘Wouldn’t bring it up last time I accused him of

cheating he spent a night in the cells, tried to strangle me. Police don’t
take too kindly to finding your wife with your handprints round her
neck.’
...
DEBORAH BLIGH: ‘why did terry get arrested?’
NICOLA STOCKER: ‘. . . Which time?’
DEBORAH BLIGH: ‘why has he been arrested???’
NICOLA STOCKER: ‘well u know about him trying to strangle me, then he
was removed from the house following a number of threats he made
and some gun issues I believe and then the police felt he had broken
the terms of the non molestation order.’
NICOLA STOCKER: ‘All quite traumatic really’
 The Facebook comments were read by Bligh and a few of her family and
friends. Mr Stocker sued Nicola for defamation—and, at trial, he won. The
problem was Nicola’s statement that Mr Stocker had ‘tried to strangle me’.
Nicola’s account that Mr Stocker had violently grabbed her around the
throat was supported by police evidence that red marks were visible around
her neck when they attended two hours after the incident. But Mr Stocker
still won the case.
Nicola would spend another five years in legal battles, with crippling
financial costs, to defend her account of domestic violence—and her
freedom of speech. In 2019, she was vindicated in the highest court in
England and Wales, the Supreme Court, which ultimately ruled in her
favour.
The most shocking aspect of this case isn’t that Nicola was sued by her
ex-husband for comments she made on a Facebook wall, or how long the
legal process took, or how much it cost—it was the finding of the High
Court trial judge in Mr Stocker’s favour. After hearing the evidence about
how Mr Stocker had placed his hands around his ex-wife’s throat, the judge
concluded:

The most likely explanation about what happened is that he did in

temper attempt to silence her forcibly by placing one hand on her
mouth and the other on her upper neck under her chin to hold her head
still. His intention was to silence, not to kill.

The judge concluded that Nicola had libelled her ex-husband for saying
‘he tried to strangle me’ because the technical legal definition of
strangulation, according to the judge and the dictionary he consulted,
requires an intent to kill. It didn’t matter what Nicola intended with her
words—that he had constricted her neck forcefully and painfully,
threatening her—it mattered what the judge said her words meant (‘an
attempt to kill by strangulation’). She could prove he had assaulted her by
placing his hands around her neck, that the police had observed red marks
on her neck hours after that assault, that he breached a non-molestation
order prohibiting him from threatening or intimidating her, and that he had
been arrested three times. But she couldn’t prove that he had intended to kill
her, or indeed that he had attempted to kill her. On this basis, the judge
concluded that Nicola did not meet the ‘sting of the posting [Facebook post]
that the claimant was a dangerous man’. Despite the evidence Nicola had of
his threats, intimidation and assault, the judge found that her statement and
its suggestion that Mr Stocker was dangerous—at least to any woman he
lived with—was not true, and was therefore defamatory.
For obvious reasons, the High Court decision received fierce criticism.
‘A greenlight for men who abuse women’, read one headline. The judge’s
reasoning was criticised by women’s rights non-government organisations
(NGOs) and frontline domestic violence organisations, which raised their
concerns about the implications of the judgment. As the Centre for
Women’s Justice stated:

The majority of women who have been raped or subjected to domestic

abuse do not even report their allegations through shame, victim
blaming and the fear of reprisals and of disbelief. For those that do
report, ultimately few get justice as they face numerous hurdles
negotiating their way through the criminal justice system. The
impression created by MeToo that now women are free to speak out
about sexual violence is sadly far from the truth and the willingness of
lawyers and the courts to collude with the silencing of women must
stop.

Despite these criticisms, the judge’s decision was later upheld by the
Court of Appeal. Commenting before the Supreme Court judgment, Harriet
Wistrich, a leading women’s rights campaigner and lawyer in the United
Kingdom, noted:

This case has chilling implications for women who speak out about
male violence. The judgment reveals a shocking ignorance amongst
members of the judiciary of the realities of domestic violence. The fact
that Mr Stocker was arrested and red marks were observed by the
police on the victim’s neck is a serious warning of escalation of
violence regardless of whether he had any intent to kill. In fact,
strangulation is a warning marker in standardised police risk
assessments. We are appalled that a woman speaking out about an
 accepted incident of domestic violence has been silenced and severely
financially penalised.

How was it that the courts could find that Nicola Stocker had defamed
her ex-husband for saying he tried to strangle her when, as the Supreme
Court would later note, it ‘was beyond dispute that Mr Stocker grasped his
wife by the throat so tightly as to leave red marks on her neck visible to
police officers two hours after the attack took place’? The judge had found
that Mr Stocker had intended to silence Nicola. By finding that she had
defamed the man who had assaulted her, the judge was prohibiting her from
repeating the allegation—effectively silencing her. Couldn’t the judge see
the irony and perverse logic of his judgment? For years Nicola could not
speak about her abuse. For speaking out and attempting to warn her ex-
husband’s new partner about his history of violence, she faced hundreds of
thousands of pounds in costs and damages.
For us, Nicola’s case was the last straw. We kept thinking about those
words: ‘his intention was to silence, not to kill’. How could this outcome be
possible in any legal system, let alone be considered justice? What had
happened to Nicola’s right to speak about her experience of violence?
We believed there were important arguments on the right of free speech
about gender-based violence, equality and the need to prevent the silencing
of women about their abuse that weren’t being heard or considered by the
courts. For this reason, we applied to intervene in Nicola’s case on behalf of
Liberty, Britain’s leading human rights organisation. We argued that the
courts had so far failed to recognise Nicola’s rights: her right to speak, and
her right to live a life free of gender-based violence.
The Supreme Court declined to hear us. Ultimately, Nicola would win—
but for very different reasons.
On 3 April 2019, the Supreme Court found that the trial judge was wrong
to conclude that Nicola’s words meant that her ex-husband had intended to
kill her, and that her language, expressed as it was on social media, should
not be given such a technical meaning. The late Lord Justice Kerr, a liberal
and compassionate voice on the court, pointed out that the fact Mr Stocker
had assaulted her and violated a non-molestation order would be considered
by many (though not the trial judge) to be sufficient to show he was a
dangerous man. Lord Kerr also questioned how the trial judge had reached
a conclusion ‘more benevolent to Mr Stocker than any version of the facts
which could reasonably have been advanced’, having sought as he did ‘to
explain the red marks on a basis which Mr Stocker never argued for’.
Despite Nicola’s evidence, and the police evidence supporting her account,
the trial judge had come up with his own hypothesis about what had
happened in order to exonerate Mr Stocker. This is what is known as
‘himpathy’—and gender bias—in action.
But the Supreme Court did not call it that, nor was the judge’s gender
bias stated as a reason to overturn his findings. Nor did the Supreme Court,
anywhere in its decision, mention the importance of freedom of speech
about gender-based violence, or the need for women to be able to talk about
their experience of abuse. Instead, the judgment was all about the need for
courts to consider the context of social media posts, whatever their content
or subject matter. While the Supreme Court decision is important for all
future social media defamation cases, it was in our view a missed
opportunity to underline the importance of protecting the rights of survivors
to speak about their abuse—online or anywhere else.
Nicola Stocker’s legal case is an important illustration of the difficulties
people face when trying to speak out about or make allegations of domestic
violence, sexual violence or sexual harassment. But her case is also just one
example of a much broader trend in Australia, the United Kingdom and
around the world of survivors, journalists and advocacy groups being
silenced by asphyxiating, expensive civil litigation.
We wrote this book to put forward the arguments the Supreme Court
declined to hear. We want to show how these laws are failing, and silencing,
women. And we want to inform more women than we could ever meet in
person in our chambers about the kinds of risks they face.
What happens when the law that is meant to protect us is instead used to
silence? And what can we do about it?
 INTRODUCTION

HOW MANY WOMEN?

I remember him saying, ‘Don’t tell anybody.’ I remember him saying,

‘Don’t make a sound.’
Well, hear me now. Using my voice, amongst a growing chorus of
voices that will not be silenced.

Grace Tame spoke these words after being named Australian of the Year in
January 2021.
In a lot of ways, this was a peak of the MeToo movement—a survivor
being recognised, and speaking on a national platform about her experience
of challenging a law that prevented her from talking about the abuse she
suffered. This was a shift, and an acknowledgement of the change that was
happening.
MeToo, at its core, is a movement about survivors speaking out and
finding solidarity in one another. In a culture of shame and silence, where
survivors are kept siloed and isolated from each other, speaking is a
powerful act. It has shown how powerful silence was in protecting
perpetrators. That cultural silence—and the status quo—was finally
breaking, along with the impunity perpetrators had enjoyed for too long.
MeToo was started by Tarana Burke all the way back in 2006 as a means of
letting victims and survivors know that they were not alone, but in 2017 the
movement went viral.
 In a sense, the MeToo movement is a response to legal systems that do
not serve women and girls, either because the laws are inadequate or
because the response of the legal system to victims and survivors is flawed.
Many women and girls have lost faith in the police and the legal system to
provide justice to survivors of sexual harassment, misconduct, abuse and
rape—and understandably so.
In Australia, Canada, the United Kingdom and the United States, only 14
per cent of sexual violence victims report the assault to police. And even if
sexual assault and rape are reported to police, prosecutions and convictions
remain depressingly low. For example, in the United Kingdom only 1.6 per
cent of rapes reported to the police result in a charge—a rate so low that the
UK Victims Commissioner, Dame Vera Baird, has said that ‘we are
witnessing the de-criminalisation of rape’.
Even if a matter does get to trial, most of the time it doesn’t feel much
like ‘justice’. Many survivors talk about being retraumatised by police and
by cross-examination, and many more experience victim-blaming attitudes
and gender bias in the courtroom. Even smaller again is the number of men
who are actually convicted. In the United Kingdom, less than 1 per cent of
rape cases result in conviction. And even where men are convicted, judges’
biased sentencing remarks regularly minimise or excuse their offending.
The system fails survivors at so many points—from not educating
children about consent to failing to tackle the misogynistic ideas about sex
and violence that pervade our culture, our police and our courts. In this
context, speaking out about it is the only way many survivors feel they can
agitate for change. They want to tell their story to protect others, to stop the
violence from happening again, and to start a serious conversation about
violence against women. In speaking out, survivors also find solidarity and
support, and are no longer alone in a shame that should never have been
theirs to carry.
The crux of the problem is that women and girls are speaking out about
abuse and violence because not enough is being done to stop it—and we
need to be able to talk about it so that governments can do better. We can’t
act if we don’t know.
The success of MeToo has been in how it is breaking down cultural
silence about gender-based violence, encouraging women to speak out and
enabling us—the public and policymakers—to understand the extent of the
problem. Around the world, thanks to MeToo, police and rape crisis
services saw a massive spike in women reporting their abuse, and we have
seen increased public discussion about violence against women and policy
discussions about how we might better address it. The resistance and
bravery of those speaking out has brought to light ‘a collective experience
of powerlessness against systemic injustice’.
For human rights experts at the United Nations, MeToo marked ‘a tipping
point’ for women’s rights and foreshadowed the end of indifference and
impunity as ‘the shame and fear begin to shift from the victims to the side
of abusers and perpetrators of sexual violence’. This change is urgently
needed to address what is an urgent and widespread human rights crisis. As
UN Women reports, violence against women and girls is the most prevalent
human rights violation in the world, suffered by one in three women, and a
problem that disproportionately affects women of colour, First Nations
women and those with disability—who are each far more likely to face
abuse. The UN Committee on the Elimination of Discrimination Against
Women (CEDAW) has described gender-based violence as pervasive,
reminding all governments that it is prohibited under international law and
that they have an obligation to protect women from violence, to punish
those responsible and to put an end to violence. As CEDAW makes clear,
freedom of speech—and the ability for survivors to talk about their abuse
and the media to report on it—is an essential aspect of violence prevention.
But something has been happening as a reaction to this movement. As
women have been empowered to break their silence, they have also been
facing a different kind of silencing: the silencing of women who speak out
by and through the law.
The spike in survivors speaking out has been followed by a spike in legal
actions against them and the journalists who want to report their stories—in
defamation, in contract, in privacy and in breach of confidence. We have
seen this in our practice and have watched it happen all around the world.
The law is being wielded to reinforce the culture of silence and protect the
status quo. The courts have become the battlefield, where judges grapple
with competing rights: her right to speak about gender-based abuse and his
right to reputation.
The UN-appointed expert on freedom of expression, Irene Khan, calls
this ‘the perverse twist of MeToo’ and ‘gendered censorship’. It is a
problem so big that she dedicated her entire report to the UN General
Assembly in 2021 to it and explained why free speech is also an equality
issue.
We agree—and in this book we show why.
As we saw in Nicola Stocker’s case—and in the many cases we highlight
in this book—the same gender bias, victim-blaming and harmful
stereotypes about sexual and domestic violence that impede the ability of
the criminal justice system to deliver justice are also found in this flood of
civil cases which silence. The difference, however, is that these cases are
initiated not by the state but by (mostly) powerful and wealthy individuals.
The costs of these cases are borne not by the state but by those facing the
legal action: the women who speak out, the journalists who report on it or
the advocacy groups that seek to campaign about it. And the costs are
crippling. In many cases it is an alleged perpetrator suing his victim, and the
law enables him to turn his victim into the defendant. Using the law in this
way is a legally sanctioned way to victim-blame. As psychologist Jennifer
Freyd explains, it offers abusive men a legal mechanism for the age-old
strategy of ‘deny, attack and reverse victim and offender’ (known as
DARVO). Many women who are sued by their perpetrator experience
litigation as another form of abuse, a legally sanctioned means by which he
continues to torment, humiliate and control her long after she has left him.
Using the law in this way is also a legally sanctioned way to say ‘Don’t
tell anybody’. It enables men with wealth and power to repeat that refrain:
‘Don’t make a sound.’

The cost of speaking out

As human rights barristers, we are often approached by women for advice

on the risks they face if they choose to speak out. Many survivors speak out
without considering the legal implications, and only come to us after
receiving legal threats or when facing legal action. There is a worrying
pattern of actions emerging that we want women to be aware of.
In general terms, a typical scenario is as follows:
A young woman suffers abuse or harassment at the hands of a rich and
powerful man. The rich and powerful man negotiates a settlement to buy
her silence. The young woman subsequently decides to speak out about her
experiences. The rich and powerful man seeks to protect his reputation,
strenuously denies the allegation and calls the woman a liar. He (or his
lawyers) threatens to sue the woman, and/or the newspaper or news outlet if
they print the allegation. He might seek an injunction to prevent publication
of the allegation, or (if the information is already out) claim she is lying and
use defamation or libel laws to cast doubt on her allegation, obtain an
apology from the news outlet and seek monetary compensation for damage
to his reputation—as well as an injunction to prevent her or the publication
from repeating the allegation and to deter other journalists from doing their
own reporting about it.
The problem we continue to see is that the women making the
accusations and the journalists printing them are being sued in costly,
technical and stressful legal proceedings. Rich, privileged and powerful
men have teams of lawyers at their disposal to suppress allegations and stop
newspaper stories. Individual women, frontline services and advocacy
groups, and journalists find themselves fighting against censorship and
silencing, being sued for defamation and vilified in court, in public and
online. The costs are crippling—financially and emotionally. As Jia
Tolentino has argued, women, rather than being able to speak out in their
own terms, ‘have had to be painfully careful about how we speak’.

How many women?

In 2017, when allegation after allegation began to surface about film

producer Harvey Weinstein, we were working with journalists and
newspapers in the United Kingdom who were breaking what has come to be
known as the MeToo story. After decades of Weinstein’s behaviour being an
open secret, suddenly there was a push to publish. It was as if the walls of a
dam had burst. Newspapers finally felt able to print serious allegations
against one of Hollywood’s most powerful producers.
But why now? How was he able to silence the allegations for so long?
How many women had to accuse this man before they would be believed?
How many women had to accuse him before the newspaper would run a
story about it? How many women needed to come forward before he would
be prosecuted? At the time the first Weinstein story ran, he had not been
arrested or put on trial. But thanks to the collective power of women
speaking out, and the power of the pen, he is now in prison. But how many
women had suffered because of the silence that had protected him for so
long?
This question—how many women?—haunted us as we worked with
news organisations to publish this and many other MeToo stories. As we
wrote this book, it kept coming up. How many women will be raped or
killed before we fix the system? How many women are scared to walk
home alone? How many women actually receive justice in our courts? How
many women need to speak out before things change? How many women
will be sued for defamation for speaking out? How many women have been
silenced by non-disclosure agreements (NDAs)? How many women do we
need in parliament before laws are changed? How many women need to
protest before society changes the way women are treated? The question
came up so often, and in so many contexts, that it became an exasperated
refrain.
This book reflects our own journey in thinking through these issues
separately and together since 2012, and long before MeToo.
In this book, we sometimes refer to our own cases, but only in relation to
material that is in the public domain or with our clients’ permission. Jen has
advised journalists, media organisations, survivors and frontline services
organisations, and has advised and worked with high-profile women who
have spoken out.
Keina has been working on women’s human rights and intersectional
discrimination since 2008. Keina’s international work has led her to meet
many of the silence-breakers we interviewed for the book, who are using
the law in Colombia, Japan and Kenya to fight back.
We have also acted together in cases, including some that never made it
to court, and we write this book informed by those stories and our
experience of how the law works in practice.
As barristers in England and Wales, we have also advised organisations
on publication risks, with stints in-house and advising major national
newspapers and broadcasters in London, working with journalists to break
stories. We have seen, from the inside, the challenges journalists face
investigating these stories, as well as the legal threats and other harassment
and pressure they face for their reporting.
We have talked with survivors, journalists and human rights activists
from around the world who have been spied on, sued or prosecuted, and
who have faced jail time, bankruptcy, online abuse and threats, and even
exile for speaking out or reporting on abuse. In this book we show how it is
not just powerful and privileged men who have been bringing these cases:
governments and state officials have also been active or complicit in the
silencing. We show, too, how discriminatory criminal laws serve to silence
and punish women for speaking their truth, and slap down and silence
activism on women’s rights issues. But we also show how brave survivors
and silence-breakers are fighting back and using the law in creative and
interesting ways to counter the backlash and advocate for necessary law
reform.
This book is not about the criminal justice system and how it is failing
women. There are many great books about this, including those written by
our Doughty Street Chambers colleagues about what is happening in the
United Kingdom. From Baroness Helena Kennedy QC’s books, Eve Was
Framed (1992) and Eve Was Shamed (2018), to Harriet Johnson’s recent
manifesto, Enough: The violence against women and how to end it (2022),
it is clear that too many women are failed by the criminal justice system—
through systemic racial and gender bias, gender stereotypes or sexist
reasoning from police, lawyers and judges. We need a criminal justice
system that works better for everyone. And we need to build a society in
which women and girls can live free from violence.
We firmly believe that this begins with being able to talk about it. That is
why we are concerned about how the law is being used as a weapon to
silence women, and why we argue there is a clear public interest in
speaking about these issues. If we want to end violence against women, we
must be able to speak about it.
How many women will be silenced before we make the structural
changes we need to empower them to speak?
 Chapter 1

SILENCING JUSTITIA

If you have been into a courtroom—in Australia, the United Kingdom,

Europe or Latin America—you have likely seen a statue of a blindfolded
woman, a sword in one hand and a set of scales in the other. This is Justitia,
or Lady Justice, the personification of justice in ancient Rome and the
symbol of moral force in our judicial systems today. The scales represent
the weighing of interests in the pursuit of justice; the blindfold represents
objectivity and equality before the law. She is there to remind all those
working in our courts of their obligations.
Justitia represents the ideal and the objective of our legal systems: it
matters not who you are, your wealth or your status—or your gender—
justice will be delivered. It is deeply ironic, then, that justice is depicted as a
woman, given that women have historically been excluded from systems of
justice and denied both rights and justice.
The reality is that nations’ laws have largely been written by and for men.
It is overwhelmingly men who have written them in parliaments, and male
judges who have interpreted and applied them in the courts, relying on the
arguments of courtroom advocates who are also predominately men.
Understanding this legal history is essential to understanding the
operation of the law today. Laws and rights were created for men, not for
women. Patriarchal interests have been protected and privileged over all
else, with little regard for or consideration of women’s rights and lived
experiences. The lingering legacy of this are myths about sexual and
domestic violence: pervasive attitudes and beliefs that are generally false
and serve to deny and even justify male violence against women. These
myths permeate society, the media and the legal system.
The fact is that parliaments and the upper echelons of both the media and
the legal profession have been, and still are, dominated by men. This
matters and it has lasting consequences today. It can be seen in laws about
gender-based violence and the laws regulating women’s ability to speak
about it. It can also be seen in media coverage of gender-based violence,
and in the laws regulating the way the media can report it. And it affects the
way these laws operate in practice to silence women.

Silencing Olympe de Gouges

This book traces the ways in which the law silences women. So let’s begin
with the history of human rights and women’s right to free speech—and the
fact that we were not originally entitled to it at all.
Human rights law is said to reflect and protect the essence of what it
means to be human, and it defines our rights in society, including our right
to freedom of speech. These rights are now found in most democratic
constitutions (except in Britain, where there is no codified constitution, and
in Australia, where the written constitution doesn’t really protect human
rights at all, and the courts had to imply limited free speech protections).
But the right to free speech has not always protected women. Indeed, until
about the last century, women didn’t have many rights at all—in
international or national law.
The history of human rights is intertwined with the histories of class and
gender. While they are said to be human rights, not all humans had their
rights protected equally. For the United Kingdom, Australia and the rest of
the common law world, the foundation for human rights began with the
Magna Carta Libertatum (or ‘Great Charter of Freedoms’), signed in
England in 1215. The Magna Carta limited the power of the King of
England and introduced some limited but important rights, such as the right
to due legal process. But these rights only applied to noblemen—that is, to
certain wealthy white men. Rights were only for the rich and powerful, not
for all people—and certainly not for women and people of colour.
The first comprehensive legal declaration of human rights is said to have
come in 1789, after the Enlightenment and the French Revolution, when the
French National Constituent Assembly drafted the ‘Declaration of the
Rights of Man and of the Citizen’. This was a declaration of rights for the
people—not just for the ruling class. It embodied what we now see as
modern natural and civil rights.
As Susie Alegre points out in Freedom to Think (2022), the declaration
was radical in its time, but not so radical as to extend equality to anyone
other than white men. The seventeen principles were designed to protect
and respect the rights of men and ensure the happiness of men—and
exclusively men. It established the rights of liberty, property, due process,
security and resistance to oppression. It established the pillars of modern
democracy and defined the relationship between man and government, by
establishing the rule of law, the separation of powers and accountability of
government to the all-male electorate.
It also protected—for the first time—the right to freedom of speech.
Again, this was only for men. But, as Alegre writes, just a few years after
this was drafted, a woman dared to point out the limitations of this male-led
Enlightenment political thinking and their failure to include women in their
so-called égalité. It did not end well for her.
This was Olympe de Gouges—a pen name she chose for herself when
she sought her destiny as a revolutionary in Paris. As an activist, she fought
for the right for women to be included in the social reforms sweeping
France. In 1791, she wrote the ‘Declaration of the Rights of Woman and of
the Female Citizen’, in which she stated: ‘A woman has the right to be
guillotined; she should also have the right to debate.’
This turned out to be disturbingly prophetic: after upsetting many
powerful figures through her political activism and writings (including
Robespierre, whom she called a tyrant), she was convicted of treason, and
executed. Her execution was seen as a warning to all politically active
women—and generally to women who dared to speak out—many of whom
were executed in the years that followed.
But it would be a mistake to think that advocating for equality for women
began in revolutionary France. In fact, hundreds of years earlier, in the
1630s, the Ethiopian philosopher and intellectual Zera Yacob was an
advocate for equality for all, including women. Yacob believed that equality
was for all humans: this meant that women should be treated equally and
that slavery was unjustifiable.
 And yet it wasn’t until after World War II, when women were needed in
the workforce, that women’s rights were formally—and finally—
recognised, when they were included in the Universal Declaration of
Human Rights (UDHR). But even then, the first draft of the document
opened with the words ‘All men are brothers’ and it looked like we might
end up with another declaration of men’s rights. It was in fact a formidable
Australian woman, Jessie Street, who—together with the few other women
invited to the founding conference of the United Nations, held in San
Francisco in 1945—insisted that women be included and the wording ‘All
men are brothers’ be dropped.
Street was the sole woman on the Australian delegation, and was
instrumental in creating the Commission on the Status of Women (CSW),
on which she served as the inaugural vice-president. Street also served on
the UDHR drafting committee, which was led by Eleanor Roosevelt, a
feminist, social justice activist and former US First Lady. Street insisted,
after banding together with the small group of women delegates, that ‘if you
don’t refer expressly to women, they will be excluded from rights’. Their
efforts ensured that Article 1 of the UDHR states: ‘All human beings are
born free and equal in dignity and rights’, and that human rights would be
for all, women included. Street may have succeeded on this, but another of
her important points was ignored: she had argued for the inclusion of the
right of women to freedom from violence. As we explain in Chapter 8, it
would take another half a century for this right to finally be recognised—
and governments are still failing to give it effect.

The law is man-made

The law, as Justitia reminds us, is meant to be blind—and applied equally to

all. But what happens when the law, as it is made, is blind to women? What
happens when the law itself is only written from the perspective of men?
Until the early 20th century, parliaments were made up of all men, voted
in by men because women did not have the vote. Cases before the courts
were argued by men, and decided by men because women were not allowed
to study and practise law or become judges. Although a woman could feel
the full force of the law, and be punished by the law, she had no ability to
shape or influence the law. She was excluded from the so-called democracy
which legislated her life, her body and her relationships. This historical
reality did not end when women were given the right to vote. While there
have been huge efforts towards correcting unjust and discriminatory laws,
the very foundation and architecture of the system, with its gender bias and
male perspective, still impacts upon law and practice today.
In their seminal book Women and the Law (1984), co-authors Susan
Atkins and Brenda Hoggett (who later become a UK Supreme Court judge,
Baroness Hale) showed how the law in the United Kingdom has reflected
men’s interests and a patriarchal world view, which has led to
discrimination and injustice towards women. Study after study in
jurisdictions around the world have highlighted this same problem
elsewhere and how it results in legal systems that fail women. And even
though societal views are changing, the law lags along behind it, and many
biases and myths continue to persist in society, and in the law and its
practice. This is particularly true when we look at gender-based violence,
which is overwhelmingly perpetrated by men against women.
Let’s start with sexual offences.

Your body or mine? Sexual violence and women as property

Historically, sexual violence was not criminalised for the effect it had on
women. It was a crime that centred on the trespass of property—that is,
based on women being the property of their father or husband—and was
concerned with how a sexual assault of a woman would affect those men.
The law was a means by which men secured legitimate heirs and
bargainable daughters: therefore, as Atkins and Hoggett explain, when it
came to rape, the law was primarily concerned with penile penetration
because it might lead to pregnancy. There was far less concern for other
forms of sexual assault, which also violated women’s bodily autonomy but
did not risk impregnation.
As Atkins and Hoggett write, men went to even greater lengths to protect
themselves from other men: the harshest penalties in law were preserved for
non-consensual vaginal intercourse and for buggery of men, whether
consensual or non-consensual. There was far less concern for punishing
female homosexuality—after all, that didn’t concern men. (In modern
times, some countries—such as Sri Lanka—amended their criminal laws to
make sex between women an offence. Keina successfully challenged this
law before the Committee on the Elimination of Discrimination Against
Women (CEDAW) as a violation of women’s rights to equality and
privacy.)
For centuries, the law condoned rape within marriage: women were,
upon marriage, the property of their husband and had no right to refuse sex.
Husbands had complete immunity from criminal prosecution for rape. The
origin of this rule of common law is an oft-quoted statement from Sir
Matthew Hale published in 1736: ‘[T]he husband cannot be guilty of rape
upon his lawful wife, for by their mutual matrimonial consent and contract
the wife hath given up herself in this kind unto her husband, which she
cannot retract.’ Marriage was therefore an irrevocable contract for sex. If a
man was violent with his wife in order to have sex with her, he could be
prosecuted for assault, but not for rape.
In the United Kingdom, it wasn’t until 1991 that the courts removed this
immunity. Finally, the British courts recognised that Sir Matthew’s
statement that a woman gave up her right not to consent to sex upon
marriage was ‘a common law fiction which has become anachronistic and
offensive’. The same can be said of Sir Matthew’s views on abortion, but
that has not stopped the US Supreme Court from citing him in 2022 to deny
women rights over their own body. Justice Samuel Alito’s majority opinion
overturning Roe v. Wade—which put an end to women’s constitutional right
to an abortion in the United States—cited the same treatise, The History of
the Pleas of the Crown, in which he described abortion as ‘a great crime’.
Sir Matthew’s 17th-century views of the law and women—which included
putting women to death for witchcraft—clearly have not yet been consigned
to the history books.
In Australia, it was not until 1976 that ‘marital rape’ was partially
criminalised, and only in South Australia. It took until 1994 for all the other
states and territories to catch up. Despite this, recent surveys in both
Australia and the United Kingdom show that an alarming number of people
still do not consider forced marital sex to be rape; clearly many still believe
that women in relationships have an obligation to have sex with their
partner, even if they don’t want to.
According to the United Nations in 2021, some 43 countries still don’t
have legislation criminalising marital rape. Even worse, in some countries
the law can grant this immunity retrospectively: twenty countries still
permit a man to escape criminal prosecution for rape if he marries his
victim. Morocco recently repealed the law after a young woman committed
suicide after being forced to marry her rapist. How many women will speak
out about their rape if it might mean being forced to marry the man who
raped her? The effect of these laws is to silence victims.
Even in countries where these laws have been repealed, the attitude
persists that marriage atones for rape. In India in 2021, Chief Justice Sharad
Arvind Bobde told an accused rapist: ‘If you want to marry her, we can help
you. If not, you lose your job and go to jail.’ The defendant had been
accused of stalking, gagging and repeatedly raping the girl, and of
threatening to douse her in petrol, set her alight and kill her brother. This
was despite a 2013 Supreme Court decision that said ‘rape is not a matter
for the parties to compromise and settle’. In India, defence lawyers
reportedly still often propose that the defendant will marry the victim in the
hope of receiving a more lenient sentence for rape.
Rape was historically seen and defined as an offence of honour,
committed against the property of husband or father, rather than an act
which violated women’s bodily autonomy. As Professor Jessica Clarke
explains, in the United States—and elsewhere—rape historically could not
be committed against a female victim of previously unchaste character. This
is why rape only used to be prosecuted when the victim was a ‘respectable
woman’. Sex workers were deemed to have given up their right to refuse
consent—and the right to deny their services—to the world at large.
This underlying architecture is still present in modern-day cases of sexual
assault and rape around the world. In India, until recently, differential
sentences were given to men for rape depending on the woman’s previous
sexual activity. We interviewed a leading Indian barrister, Karuna Nundy,
who redrafted India’s sexual offences law after the now-infamous Delhi
gang rape in 2012. She explained: ‘If the woman was a virgin and deemed
“pure”, the sentence was higher; if she was married or otherwise sexually
active, the sentence was less. In fact, pursuant to the hierarchy of “purity”,
rapists of women who are sexually active but not married receive the lowest
sentences.’ The test to assess whether women were ‘habituated’ to sex was
the two-finger test, where a doctor inserts their fingers into the vagina of a
woman to test her hymen and vaginal laxity.
The two-finger test is a virginity test used in many parts of the world
despite the fact that the World Health Organization (WHO) has long
condemned its use for medical and ethical reasons, including because it
can’t prove whether sexual intercourse took place or not. But it wasn’t until
2013 that the Supreme Court of India declared the practice unlawful on the
grounds that it violated women’s privacy and dignity.
Karuna also explained that Indian law was—as in the United Kingdom—
male-centric and therefore only penalised penile penetration of the vagina
as rape. Karuna has worked with others to change this by redefining the law
from a feminist perspective: any non-consensual form of penetration or
sexual touching is now a crime. But even today, Karuna told us, judges in
India still talk about ‘honour’ in rape cases, despite it bearing no relevance
to the law as it now stands.
This is a familiar pattern around the world: long after the requirement
that a woman must be chaste to be considered a rape victim has been
removed, a woman’s sexual history continues to be brought up by defence
lawyers to undermine a victim’s credibility. As Harvard law professor
Catharine MacKinnon has written, this is a perpetuation of ‘the rape myth
that women who have had sex are inherently not credible . . . having
apparently lost our credibility along with our virginity’. Baroness Helena
Kennedy QC has written extensively about her experience in sexual crimes
trials in Eve Was Framed (1992) and Eve was Shamed (2018). She writes
how complainants in rape trials are ‘required to be the ideal victim,
preferably sexually inexperienced and at least respectable’. Throughout her
career, women complainants were ‘still asked questions which are never put
to men’, including about her sexual history, her clothing, whether she had
anything to drink, why she was out alone, why she was at the pub or
nightclub. Women who had uncommitted consensual sex were treated as
having consented to sex in any context, which Helena writes ‘seems to be
the price paid for woman choosing to be as independent as a man’. In one
case, she describes a male defence counsel saying ‘You are not a true
victim. You are the victim of your own behaviour that evening.’ As Helena
wrote, ‘[t]rue victimhood has very demanding standards’. And it worked
with juries: she referred to research in Canada that showed that the more a
jury heard about a woman’s previous sexual history, the less likely they
were to convict.
In many jurisdictions today, including Australia, the United Kingdom and
the United States, evidence about a victim’s sexual history is now barred in
sexual offence trials—though this has been a relatively recent development.
But the history and architecture of bias in the law is hard to break. Despite
all the new guidance and jury directions in the United Kingdom that aim to
educate police, prosecutors, juries and judges about these myths in sexual
offence trials, they persist.
In 2020, a whistleblower came forward to show how UK police and
prosecutors were declining to prosecute sexual offence cases based on these
very myths. In one case, prosecutors declined to prosecute a rape case
because the complainant ‘enjoyed an adventurous sex life’. Even more
shockingly, as we explain in Chapters 6 and 7, there are no protections in
civil defamation trials—before judges or juries—about this. In the high-
profile Depp v. Heard defamation case in the United States, where an issue
before the jury was whether or not Johnny Depp had subjected his then wife
Amber Heard to domestic and sexual violence, Amber told us that she faced
questions in depositions about her sexual history and whether she had
worked as a stripper and sex worker—all of which was irrelevant to
whether or not Depp had hit her or raped her.

Real rapes, real victims

The laws on the books are one part of the problem. But there is the less
visible problem of how myths and stereotypes are still pervasive—and how
they are used to discredit and silence victims.
As Professor Jessica Clarke points out in The Global #MeToo Movement,
the law has treated rape cases with ‘extraordinary scepticism both because
women were thought to fabricate accusations and because the crime was
penalised by the harshest of sanctions, including the dealth penalty’.
Because the consequences were so serious for the accused (who were
overwhelmingly men), the law imposed special requirements on victims
(who were overwhelmingly women), which were not seen in any other area
of assault law. They included that a man could not be convicted of rape
without corroboration: juries were warned that the woman’s evidence alone
was not enough; it had to be backed up by other evidence before a jury
could convict. In the words of one Judge Sutcliffe to a jury in 1971, ‘it is
well known that women in particular and small boys are liable to be
untruthful and invent stories’. Thanks to feminist campaigning, this
requirement was removed in the United Kingdom in 1994. A credible
account from a victim now can and should form the basis of a prosecution
and a conviction. That is, unless you are in countries like Iran where the
Islamic Penal Code requires that, for a rape conviction, a woman must also
have four male eyewitnesses, an obviously near-impossible evidential
standard. The word of the victim, even where corroborated by several
female witnesses, is not enough.
This old requirement of corroboration was based upon, and perpetuated,
the myth that women making allegations of abuse could not be trusted—and
survey after survey in Australia, the United Kingdom and elsewhere show
that alarming numbers of people continue to hold this belief.
Another special requirement imposed on victims of sexual assault was, as
Professor Clarke explains, that the victim had to show that she had
physically resisted during her assault, as well as actually saying ‘no’.
Presumably the requirement of physical resistance was put in place so that
the man could be shown to clearly understand that she did not want to have
sex; saying or even screaming ‘no’ was not enough. This denies the reality
of most women’s experience: freezing is the most common reaction to rape,
with the victim unable to resist. Physically resisting a man is likely to
provoke further violence during rape, even risking death, and many women
don’t resist for this reason.
These requirements were never designed to prioritise the experience of
rape victims or to protect them. Instead, they were developed to ensure that
men were not wrongfully convicted. The result is a law that bears little
relation to the reality of the crime or women’s experience of it, and that
means many rapes have gone unpunished.
The requirement that a woman physically resist has—like the
requirements of prompt reporting and corroboration—been removed in the
United States, the United Kingdom and other democratic countries. But, as
Professor Clarke explains, these myths and ‘outdated ideas continue to
influence’ cases today—determining whether the police investigate,
whether the prosecutor’s office decides to press charges and what is
convincing to juries—and inform popular ideas about ‘real victims’ and
‘real rapes’.
The old requirement that there be an element of force for rape to be
prosecuted as a crime also contributes to outdated myths. For example, as
Professor Clarke explains, early US courts had borrowed from the old
English definition of rape: ‘carnal knowledge of a woman forcibly and
against her will’. The requirement of force has been removed from the laws
of many countries, including in the United Kingdom and Australia, where
the law is based on consent. But it has perpetuated the myth that ‘real rapes’
are stranger rapes, perpetrated by force—even though the statistics show
that the overwhelming majority of rapes are committed by intimate partners
or acquaintances.
Force remains a requirement of rape in many jurisdictions, including in
Japan and in countries across Europe, although women are fighting to make
rape a consent-based offence. Even in jurisdictions where force is no longer
a legal requirement, the UN Special Rapporteur on Violence Against
Women notes that this myth has resulted in judges, juries and prosecutors
being more likely to believe women’s accusations of rape when it is
accompanied with physical injury, and more likely to give lighter sentences
for rape by acquaintances. So who, then, does this law really protect? And
what use is the law if it doesn’t reflect the real conditions in which that
crime is committed?
We see a similar pattern with the old ‘prompt reporting’ requirement.
Victims who don’t report a rape right away are seen as unreliable or seeking
revenge—or so it was said. Of course, contemporaneous reporting enables
evidence to be taken when memories are fresh. Trauma responses, fear of
retaliation (particularly when perpetrators are powerful) and being afraid of
not being believed are all common reasons that it can take some victims
time—sometimes years or even decades—to report their abuse. Experts
agree that there are many legitimate psychological and cultural reasons why
survivors take time to report, and that a delay is not, in and of itself, any bar
to the successful prosecution of crimes.
For this reason, many countries have removed the ‘prompt reporting’
requirement to better reflect the reality of victims’ lived experiences. But
some countries have kept it: in Italy, it remains a requirement that victims
report within six months of the alleged crime. This is considered ‘protection
against false complaints or blackmail’. Again, this justification is rooted in
the myth that ‘real victims’ report immediately.
In some countries where the ‘prompt reporting’ requirement has been
removed, there still exist statutes of limitations, ranging between five and
fifteen years, for criminal and civil claims for rape and sexual assault. This
was how the US comedian Bill Cosby avoided prosecution in all but one of
50 cases: the women had remained silent, or had not been believed by
police, for too long. Only Andrea Constand’s case against Cosby alleging
sexual assault could be prosecuted, because all other cases were statute-
barred and out of time.
Limitation rules are designed to protect the due process rights of the
accused: memories fade and evidence deteriorates over time, which can
potentially make convictions less reliable. But in many jurisdictions,
limitation periods apply in respect of prosecution for rape (committed
overwhelmingly by men against women), but not for murder
(overwhelmingly committed against men, except—of course—in relation to
intimate partner murder). Campaigners say this unfairly denies rape
survivors justice, and they have campaigned for extensions to the time
limits in order to recognise the reality of victims’ lived experiences.
They have had some success: in the United Kingdom, for example, there
is now no time limit on prosecuting sexual assault or murder. The extension
of time limitations for civil claims relating to historical sexual abuse in
California has enabled a number of women to make civil claims against
Cosby for sexual assault.

Domestic violence justified

The history of family law, on divorce and domestic violence, shows how it
disadvantaged women in order to protect the interests of men. Despite
changes to the law since, we still see the same myths play out in the family
courts and in defamation cases involving domestic violence.
The starting point in family law and divorce was the indivisible
matrimonial union and the protection of patriarchal propriety interests. Like
the laws on rape, the laws around divorce and adultery were designed to
protect men’s lineage and succession from women who might lie. Divorce
was permitted for a man if his wife committed adultery, but not for a
woman if her husband did. As the Lord Chancellor explained in 1857,
‘[T]he adultery of the wife might be a means of palming spurious offspring
upon the husband, while the adultery of the husband could have no such
effect with regard to the wife.’ As Atkins and Hoggett explained, this
inequality persisted in the United Kingdom until 1923.
For women, it was hard to get a divorce even if your husband was
violent. As far back as the 1700s, a woman could get a divorce for cruelty if
she suffered domestic violence, but only if ‘she was a woman of good
temper’ and had ‘always behaved dutifully to her husband’. The law of
provocation set out all the ways in which her behaviour would justify male
violence in marriage and would deny her the right to divorce him for
cruelty. Atkins and Hoggett described provocation as ‘the most insidious
concept’ in cruelty and domestic violence cases. As they explained, ‘the
alleged provocative act is usually an affront to the husband’s exclusive
rights of possession’: adultery, withdrawal of sex, neglect of household
duties. Women behaving in this way ‘provoked’ their husbands and
therefore had no remedy. In this way, victim-blaming was legally
sanctioned.
Until the late 1960s, you can find cases where a man’s violence was
excused because his wife ‘provoked’ him. Atkins and Hoggett outline
different cases where his violence was deemed to be justified. In one case, a
woman went to visit her relatives after her husband told her not to, so his
beating her did not constitute cruelty because she had disobeyed his orders.
In another case, a judge stated that a woman’s withdrawal of sex and
neglect of household duties justified ‘very considerable violence’.
Provocation could even extend to nagging. If a man beat his wife after she
had been nagging him, it would not constitute cruelty in law, and if he
murdered her, the crime would attract a lesser prison sentence. These
attitudes persist in domestic violence myths, which continue to be rolled out
in cases today to discredit victims: if she wasn’t passive, if she wasn’t
faithful or if she nagged him, then she deserved it and is not a ‘real victim’.
This stands in stark contrast to the behaviour expected of rape victims: if
she did not resist she is not a ‘real victim’. But when it comes to domestic
violence, if she does resist she is not a ‘real victim’. Women’s credibility is
questioned for not resisting or resisting too much.
The law also imposed a difficult standard of proof on women seeking a
divorce due to domestic violence. Until the 1970s in the United Kingdom,
women were not able to divorce violent husbands with a history of abuse
unless they could prove there was a risk that the men would be violent
again. As Atkins and Hoggett explain, a past history of abuse, even with
evidence, was not enough to meet this evidentiary bar. They also highlight a
1975 textbook on matrimonial offences which explained that, in the law,
some ‘rough and tumble’ was deemed to be the ‘wear and tear’ of married
life. The textbook author explained it was a ‘natural part’ of marriage, and
opined that ‘an occasional thrashing’ was considered by some as ‘a sign of
their husband’s affection’.
In a famous case in 1983, Bergin v. Bergin, a judge found that a beaten
woman who did not go to the police or seek medical attention, despite
having black eyes, had accepted the violence and so had no remedy. As we
explain in Chapter 6, similar attitudes continue to be expressed in cases
argued today. Of course, there are many reasons women don’t report
violence at home or otherwise attempt to hide their injuries from others,
including to protect their partner because they still love him and to keep
their children’s father out of jail.
Even when women did make reports to the police, it didn’t necessarily
result in action. For many years, as Atkins and Hoggett and others have
written, police rationalised their failure to act against domestic violence as a
desire not to disrupt a marriage or a family home, as that was seen as
‘private’ and beyond the realm of the law. What happened in the home
stayed in the home, and the police wouldn’t intervene even if there was
evidence of violence. Domestic violence was also seen and treated as
somehow less serious than other forms of violence, with violent offences by
strangers in the street attracting longer sentences than domestic violence. In
her books, Helena Kennedy has also written of her extensive experience in
criminal trials involving battered women, who ‘still face the prospect of
being condemned by popular mythology about domestic violence’. Over
her decades in practice, Helena saw how these harmful myths and
stereotypes were deployed in court to let men get away with it: ‘Within the
male stronghold of the court it is all too easy to create the feeling that a
woman had it coming to her. Pictures of nagging, reproachful, bitter
termagants who turn domestic life into hell on earth are painted before the
jury,’ she writes. Women are judged by impossible standards of a ‘real
victim’, despite the reality that ‘[t]o onlookers the response of a battered
woman seems abnormal, but to her it is a rational response to her abnormal
circumstances’. According to Helena, understanding domestic violence is a
challenge for the police, lawyers and judges, and ‘misconceptions litter the
court and are reflecting in the verdicts of juries’.
These problems continue today. A super-complaint filed by the Centre
for Women’s Justice against the British police in 2020 exposed ongoing
failings in how women are treated when reporting domestic abuse in the
United Kingdom. These include the failure to properly investigate abuse
allegations, the arresting of abused women instead of perpetrators, and
police themselves displaying victim-blaming attitudes.

Male violence myths, silencing and injustice

The legacy of these laws, and of the ongoing gendered myths and
stereotypes that they embodied, has a silencing effect on victims. Many
survivors report that they don’t recognise themselves in what society—and
the law—have told them a ‘real victim’ looks like. Others report that the
men who assaulted them don’t look like ‘real abusers’.
Law professor Julie Macfarlane has written about this from her
perspective as both an academic and a survivor. In her book, Going Public:
A survivor’s journey from grief to action, Professor Macfarlane explains the
difficulty she faced in speaking out about her abuse by an Anglican priest.
She had been groomed and sexually assaulted by an Anglican priest when
she was sixteen, but only felt able to speak out about it and take action 30
years later, after the MeToo movement began. Even as a respected academic
and white woman, she experienced victim-blaming from the church over
her delayed report. The church also claimed she had consented to her abuse.
After she spoke out to the media, the church claimed that if she was, in fact,
abused (i.e. was a ‘real victim’), her post-traumatic stress would have
prevented her from being able to speak out about it. From her experience
and her research, Professor Macfarlane writes about how these myths
reinforce survivors’ concerns that they will not be believed if they speak out
or report their abuse—and how they therefore silence many women. The
myth that a ‘nice guy’ cannot also be a perpetrator is one of the most
insidious. Each time a person or group of people (his friends, family or
colleagues) says a man has been nice to them so he couldn’t possibly be a
perpetrator, they perpetuate this myth to undermine her credibility.
Studies that also show that women who are confronted by these harmful
myths and victim-blaming attitudes from police and prosecutors—which is
known as ‘secondary victimisation’ and even ‘judicial rape’—often
withdraw their report and their support for prosecution. Psychiatrist Judith
Lewis Herman has written about how these myths are deployed by men as
tools to silence victims after they speak out: ‘If secrecy fails, the perpetrator
attacks the credibility of his victim. If he cannot silence her absolutely, then
he tries to make sure no one listens.’ These attacks happen in public, in the
media, on social media and in the courtroom. Sadly, they work—in the
court of public opinion and in the courts of law.
Professor Macfarlane explains that the research shows that juries are
overwhelmingly influenced by myths about rape and abuse when evaluating
evidence and determining guilt or innocence. Studies have shown that men
are more likely to believe these myths and tend to have more negative
reactions to women victims. However, both men and women—of all ages
and backgrounds—are affected by rape myths and demonstrate victim-
blaming views. These include beliefs that victims who are voluntarily
intoxicated are responsible for their rape; that it’s a woman’s fault for not
properly communicating her lack of consent; that it is not rape if she hasn’t
been injured; that a delay in reporting an alleged rape is suspicious; and that
women often lie or report men in order to take revenge. Studies also show
that less blame was attributed to the man when there was a prior
relationship with the victim, or where she was seen to have somehow
‘participated’, whether by what she was wearing or by her behaviour,
including flirting.
However, the studies also show that this bias and prejudice can be
addressed by judge and juror education, and by judges giving appropriate
directions to juries. In the United Kingdom, for example, judges are now
required to warn juries about the dangers of myths and stereotypes about
both perpetrators and victims when deciding sexual offence cases. This
shows there is a need to actively counteract these damaging mythologies,
which jurors are now told are ‘misleading and capable of leading to
injustice’.
But as our colleague Harriet Johnson states in her 2022 manifesto
Enough, no such jury directions are given in cases of domestic violence—
and directions are needed, because myths and victim-blaming remain
pervasive in all cases involving gender-based violence in the criminal
justice system. As we explain in Chapter 6, there is no requirement for
giving jury directions about such harmful myths in civil defamation cases
decided by juries—even though juries in defamation cases are increasingly
dealing with cases involving sexual and domestic violence.

Male violence mythbusting

Myths and male-centric attitudes about sexual and domestic violence are so
problematic and pervasive that guides have been created for judges, for
police and for the public to prevent their perpetuation and remove obstacles
to more effective prosecution of gender-based violence. For example, the
Australian government in 2017 prepared a guide for police to help them
challenge misconceptions about sexual offending, setting out different
myths and providing the empirical evidence that debunks them. The UK
Crown Prosecution Service (CPS) issued similar guidance in 2020. These
myths include:

Easy to report, hard to defend. It is in fact difficult for most women to

report sexual offences (in Australia, the United Kingdom, the United
States and Canada, as few as 14 per cent of sexual violence victims
ever report). And it is manifestly not a difficult charge to defend (in
Australia, the average conviction rate is just 12.5 per cent).
Real victims report immediately. In fact, the majority of victims don’t
report at all (83 per cent of Australian women), child abuse victims
typically don’t report until adulthood, and delay is common for a range
of psychological reasons and fear, particularly when the perpetrator is
an intimate partner, family member or acquaintance.
Real rapes are perpetrated by strangers. In fact, the majority of rapes
are committed by someone known to the victim (a 2016 UK study
found the figure to be 70 per cent).
Rapes are not perpetrated by boyfriends or husbands. Consent to sex
on one occasion does not imply consent on a later occasion. There is
no immunity for rape in marriage anymore.
Rape involves violence and force; real victims physically resist. Most
rapes don’t involve physical violence, given the prior relationship
between victim and offender, and victims are more likely to freeze and
cooperate (one US study showed that 81 per cent of rape victims do
not resist at all).
False accusations of rape are common. They just aren’t. Studies
estimate that 5 per cent of rape allegations are false (and this figure is
based only on rapes that are reported, so the true figure is, in fact,
likely to be even lower). The police guidance makes clear that the
 incorrect assumption about false allegations contributes to under-
reporting.

In Australia, there is also guidance for judges on domestic violence. The

National Domestic and Family Violence Bench Book reminds judges that
the behaviour of a victim does not excuse domestic violence, that victims
do not need to be weak, passive or powerless to be a ‘real victim’, and that
women may physically resist violence or defend themselves (i.e.
provocation is not a thing anymore, nor does it amount to ‘mutual abuse’).
It also makes clear that domestic violence includes sexual violence, not just
physical violence (i.e. there is no immunity for raping your wife anymore),
and that attempts to control a partner can be as serious as physical violence.
Other debunked myths include that men and women are equally victims of
domestic violence (when in fact women are predominantly the victim of
domestic violence), that victims of domestic violence can always ‘just
leave’ an abusive relationship (when it is never that simple), and that
women make false or exaggerated claims in order to obtain tactical
advantage in family claims or divorce proceedings (they rarely do).
There is clearly still a need for judges to be given these warnings. One
UK example is the 2017 Family Court case concerning Afsana Lachaux, an
award-winning campaigner for women living in the United Arab Emirates.
Afsana had accused her ex-husband of abuse, including coercive control,
and sought to challenge a UAE court decision to deny her custody of her
son in the UK courts. She returned to the United Kingdom to campaign for
custody of her son and received support from Southall Black Sisters, a
feminist organisation working against all forms of domestic violence. The
case became high-profile: the media reported her story about her allegations
of her ex-husband’s abuse and he sued the media for defamation.
In the family court, Mr Justice Mostyn reviewed the evidence and
concluded that Afsana had—using a well-known trope—‘given as good as
she got’ in the relationship, and that she could not have been the victim of
coercive control because she had been able to have a sexual relationship
after separating from her husband. Pragna Patel, a former head of Southall
Black Sisters, told us the judge’s conclusions revealed a fundamental
misunderstanding of domestic violence and coercive control. Afsana could
not get her son back, but she was also silenced from speaking about her
experience. She told us her ex-husband threatened her and her family with
defamation action. As we explain in Chapter 6, the media later lost the
defamation case.

Laws made by women, for women

The reason the law has historically reflected male interests is because
women had no role or voice in political life and law-making. In most places
around the world, women were not permitted to vote until the 20th century.
At a national level, women were first enfranchised in New Zealand, in
1893, with Saudi Arabia being the last country to allow it, in 2015. History
shows that once lawmakers are accountable to women voters, laws change
in material ways that are meaningful for women.
It is no coincidence that the year after women got the vote in the United
Kingdom and Australia, sweeping laws were passed giving women more
rights. In 1919, the UK Parliament passed a law to enable women to join
professions and professional bodies, and be awarded degrees. Before that,
for example, women had been barred from practising law because they
were not considered ‘persons’ under the Solicitors Act 1843. In Australia,
the year after women got the vote, Victoria’s parliament passed the Women’s
Disabilities Removal Act 1903 (since being a woman was considered a
disability in relation to work), which allowed women to join professions,
become lawyers and sit on juries. Studies have since shown that the
inclusion of women on juries increases conviction rates for sexual offences
against women. Women are more likely to believe women—and listen to
them.
The vote has not meant the end of inequality or discrimination caused by
laws that were made and applied by men. But we know that when we have
more women MPs, more laws are passed that better protect the interests of
women (though, of course, it should never be taken for granted that all
women act in the best interests of other women, or that all self-proclaimed
feminists enact feminist laws and policies).
Women are still very under-represented in parliaments around the world.
Australia was the first country in the world to allow women to sit in
parliament, but this came about after a miscalculation by Ebenezer Ward, a
vocal opponent of women’s rights in the South Australian Legislative
Council. Ward devised a ploy to kill a bill which proposed to give women
the right to vote. His plan was to add an amendment to the bill saying that
women would not only be allowed to vote, but could also run for
parliament. He believed this would ensure that the bill was voted down. But
it passed, 31–14. Queen Victoria called it a ‘mad, wicked folly’—but gave
it her royal assent in 1895. But it would take decades before Australia had
its first woman parliamentarian, when Edith Cowan was elected to the
Western Australian Legislative Assembly in 1921. And it would take until
1975 before the Australian Senate even bothered to install toilet facilities
for women.
Life still isn’t easy for women in parliament, as evidenced by Julia
Gillard’s famous speech on misogyny and the ‘Ditch the Witch’ placards
she faced as Australia’s first female prime minister. The experience for
women of colour in politics is even worse: studies show that Diane Abbott,
who in 1987 became the first Black woman MP in the British Parliament,
continues to receive—by far—the highest number of online attacks and
threats.
Things are not yet equal. In the United Kingdom in 2021, only 34 per
cent of parliamentarians in the House of Commons were women—and this
was an all-time high. Australia had 38 per cent representation in the federal
House of Representatives.
It wasn’t until 1983 that Susan Ryan—a senator and later the first woman
to serve in a Labor cabinet—introduced the first draft legislation outlawing
sex discrimination. The opposition to it was as fierce as it was hysterical:
opponents said it would result in a totalitarian regime, the creation of a
unisex society, and the demise of the nuclear family. However, according to
the National Museum of Australia, the law has since had ‘a profound
impact on women’s position in Australian society’, ‘encouraged more
women to seek an education and employment, which raised families’
incomes’, and has meant more opportunities for single mothers and more
women being appointed to more senior and visible roles. The vehement and
even hysterical opposition to progressive change for women is worth
reflecting upon as we engage in debates today about women’s rights—and
their right to speak.
Women MPs and peers played a similarly important role in ensuring the
passing of the equivalent legislation in the United Kingdom: the Sex
Discrimination Act 1975, which created similarly positive outcomes for
women. Without it, Jen would not have received her scholarship to Oxford:
it was only after this legislation that the Rhodes Scholarship had to be open
to women applicants—and even then only after Education Secretary Shirley
Williams (at the time the only woman in cabinet) signed a statutory order to
remove the words ‘manly’ and ‘qualities of manhood’ from Cecil Rhodes’
will. Feminist MPs like Stella Creasy, Jess Phillips and Maria Miller, with
their work on domestic and sexual abuse and discrimination against women,
demonstrate the importance of having women in parliament. The continuing
need for more focused attention on issues affecting women and necessary
law reform within parliament was underscored by the creation of the
Women and Equalities Committee in 2015—the work of which we consider
in Chapter 5.

Laws judged and applied by men

It is not enough to improve the law to better protect women. We need also
to look at how the law is applied by the courts. The just application of the
law might be represented by Justitia, a woman balancing the scales of
justice, but in practice those responsible for this task have been men. In the
United Kingdom and Australia, the judiciary has always been dominated by
privileged white men—and this remains so today. As a former Chief Justice
of Western Australia, Wayne Martin, has said, Australia’s judiciary is ‘pale,
stale and male’. And this lack of judicial diversity—and perspective—
matters.
Reflecting on progressive legal reforms for women over the past 40
years, Susan Atkins notes how judges’ application of the law—and their
male-centric perspectives—have often undermined intended reforms or
limited their effectiveness. For example, the British courts ruled that
discrimination on the grounds of pregnancy was not sex discrimination
under the Sex Discrimination Act 1975, because discrimination required a
comparison between a man and a woman in the same circumstances and
men could not be pregnant. This ruling was, thankfully, overturned by the
European Court of Justice (a correction that today would not be possible, in
this post-Brexit world). As Atkins explains, judges tended only ‘to
understand the law from a female point of view when they realised that if
men were treated in the same way, it would be unfair’. Her best example of
this was a case in which women were excluded from ordering drinks at a
bar—an injustice any man can empathise with. Attempts to provide better
protection against domestic violence were also undermined. When the
parliament legislated to increase the courts’ powers to grant injunctions to
remove violent men from their homes in order to protect women from
domestic violence, Atkins notes, judges showed reluctance to deny
husbands their right to occupy the family home, calling the injunctions
‘draconian’, even where they were required to protect the wife from further
violence.
This is not ancient history. We could write an entire book on the unjust
decisions caused by gender bias. The organisation Women’s Link
Worldwide has an annual awards ceremony for the best and worst legal
decisions that demonstrate this, and that emphasise the need for a gender
balance on the bench.
In 2017, there were so many examples of sexist judicial comments that
the journalist Sarah Friedman compiled her top picks for the year, which
included Canadian judge Robin Camp asking a sexual assault survivor why
she couldn’t ‘just keep her knees together’ to ‘prevent’ the assault. In 2019,
in Indonesia, a judge acquitted a defendant of rape because the alleged
victim was not a virgin and had ‘a drinking habit’. In a case about the
capacity of a woman with learning difficulties to consent to sex with her
husband in 2019, a British judge said, ‘I cannot think of any more obviously
fundamental right than the right of a man to have sex with his wife,’
sparking outrage and reminders from women’s groups that rape in marriage
was criminalised back in 1991. In 2016, Judge Aaron Persky’s comments in
the United States, when sentencing Brock Turner for sexually penetrating
an unconscious woman, caused national and international outrage: he
justified a lenient sentence by referring to the ‘huge collateral
consequences’ for Turner, ignoring the damage his assault had caused to the
survivor, Chanel Miller. Turner served just three months in prison.
In Australia in 2021, Judge Robert Sutherland quashed the conviction of
Nicholas Drummond, making comments which caused controversy. There
was no dispute on the facts: the former student of the private boys’ school
Knox Grammar had drunkenly punched two people outside a pub. This
included punching one woman in the back of the head after yelling at her
‘Put your tits away’ and calling her a ‘slut’. Using his discretion at
sentencing, Justice Sutherland granted Drummond a good behaviour bond.
He commented that Drummond’s comments were ‘lewd’ and ‘completely
inappropriate’, but that they were made to someone ‘whose dress . . . might
have been perceived by a 20-year-old former student from Knox to be
provocative’. The judge’s comments sparked outrage, including from the
victim, who said ‘it made me feel as if his actions were almost justified’.
Activist Chanel Contos, who founded Teach Us Consent to highlight the
pervasiveness of sexual assault perpetrated by private schoolboys in
Australia, said this decision showed the injustice in the courts in relation to
gender-based violence and the lack of accountability for men with privilege.
How many women will speak out about their abuse—and seek justice—if
this is how they are treated by the courts? The effect of decisions like these
is to silence women.
Having women in positions of power can influence the law and create
meaningful change. Feminist legal critics Susan Atkins and Brenda Hoggett
are two women who put their understanding into practice. After publishing
Women and the Law, their seminal 1984 text highlighting the injustices
arising from a male-dominated interpretation of the law, both women made
career changes in order to have a more direct impact on policymaking and
legal interpretation. Atkins joined the civil service and worked at the Equal
Opportunities Commission, while Hoggett became a judge—and eventually,
as Baroness Brenda Hale (having reverted to her pre-marriage surname), the
first woman on the UK Supreme Court, and the first woman to be its
president.
In her time on the bench, Hale drafted and handed down decisions that
have markedly improved the lives of women in the United Kingdom: from
abortion rights to the protection of asylum-seeking mothers and their
children. When asked about her all-time favourite judgments, Hale
mentions Yemshaw v. London Borough of Hounslow (2011), which
established that domestic violence need not be physical and included
coercive control. This was a law reform that she and Atkins had argued for
almost 40 years earlier in the first edition of Women and the Law.
Hale’s impact shows just how important it is to have women on the
bench, but also just how slow law reform can be. Hale has been criticised
for her work, with one Daily Mail piece describing her as ‘subverting
family values’. But it’s the same work for which she has deservedly gained
cult status in the United Kingdom, akin to that of Ruth Bader Ginsburg
(also known as RBG) in the United States, who was a Supreme Court
justice and became a feminist icon. While RBG was known for her
elaborate lace collars, Lady Hale became known for the coat of arms she
chose upon her appointment to the House of Lords, which bears the motto
Omnia Feminae Aequissimae, meaning ‘women are equal to everything’.
There is growing recognition that an all-male judiciary—and perspective
on the law—is no longer acceptable. In 2001, Sonia Sotomayor, now a US
Supreme Court justice, stated: ‘I would hope that a wise Latina woman with
the richness of her experiences would more often than not reach a better
conclusion than a white male who hasn’t lived that life.’ In the United
Kingdom, judges have been making statements calling for a more diverse
judiciary, more women judges and more transgender judges in recognition
of the ‘rainbow lives of the law’. As a former Australian High Court justice,
Michael McHugh, said back in 2004, ‘When a court is socially and
culturally homogenous, it is less likely to command public confidence in
the impartiality of the institution.’
Change is happening, even if it is happening slowly. In Australia, there
are now three women judges on the High Court (an all-time high), and in
2021 India appointed three women judges to its Supreme Court. But there is
still a long way to go. In both Australia and the United Kingdom, women
still only represent just over one-third of judges, despite the fact there are
more women than men graduating from law. Only two of the eleven
Supreme Court judges in the United Kingdom are women. According to the
Diversity Council Australia, international research shows that Indigenous
people and minorities are under-represented in the judiciary. Justice
Sotomayor’s nomination to the US Supreme Court in 2009 made her only
the third person of colour appointed to that court in its 222-year history. At
the time of writing, we could not find any official statistics on the race and
ethnicity of Australian judges, which is itself a problem: you can’t
understand what you don’t measure. One study of the profession shows that
while Asian Australians make up almost 10 per cent of the population, they
make up only 0.8 per cent of the judiciary. In the United Kingdom in 2021,
Black, Asian and minority ethnic men and women accounted for only 5 per
cent of judges in post.
Why are there still so few women judges? And how many more women
judges do we need on the bench to ensure the law is interpreted to better
protect women?
Women in the law

If we are to have more women judges, then we need more women lawyers
not just entering the profession but reaching the top of the profession. It
might be more than 100 years since the prohibition on women practising
law was lifted—and women like Helena Normanton in the United Kingdom
and Flos Greig in Australia began practising as lawyers—but the figures
show we still have a long way to go.
History shows that having women lawyers in practice has been game-
changing for women’s rights.
RBG could not get a job at a law firm when she graduated in 1959
because law firms asserted a right to discriminate against women. As a law
professor, she wrote about sex discrimination and later argued Moritz v.
Commissioner of Internal Revenue, a case about discrimination against a
man in order to lay the foundations for discrimination against women under
the Fourteenth Amendment to the US Constitution. RBG went on to set up
and lead the American Civil Liberties Union’s women’s rights project in
1972, with the support of Pauli Murray, a Black lawyer and academic who
had pushed for a women’s rights agenda at the ACLU. Murray’s scholarship
had compared the legal status of women and African Americans, using the
term ‘Jane Crow’. Their names appear together on the brief for Reed v.
Reed, the first case in which the US Supreme Court applied the Equal
Protection Clause of the Fourteenth Amendment to strike down a law that
discriminated against women.
When Sarah Weddington graduated from law school in Texas in the
1960s, she couldn’t get a job in a law firm because they didn’t hire women.
Instead, like RBG and other women of her generation, she became a law
professor—one of the few ways she was allowed to use her degree. In 1973,
at age 27, she filed what would become one of the most important and hotly
contested women’s rights cases in US history: Roe v. Wade. Weddington
argued the case all the way to the US Supreme Court and won, ensuring that
women across the United States had the constitutionally protected right to
choose to have an abortion (at least until 2022, when it was taken away).
One of Jen’s law heroes is Elizabeth Evatt, whose career in the law was
one of many ‘firsts’: she was the first woman to win the University Medal
for Law at the University of Sydney, the first woman to be appointed to an
Australian federal court, the first Chief Justice of the Family Court and the
first Australian to serve on the United Nations Human Rights Committee
(UNHRC) and the Committee on the Elimination of Discrimination Against
Women (CEDAW). During her career, she became a prominent reformist
lawyer and later jurist. One of her early cases as a young barrister saw her
defending a woman charged with causing the death of a young woman
during an abortion. This case made it clear to her that there was a need for
Australian women to have access to legal and safe abortion. From then on,
she became an advocate for law reform on abortion and its
decriminalisation in New South Wales. She chaired the Royal Commission
on Human Relationships (1974–77), which made recommendations on
contraception, rape, child abuse and abortion, and recommended reforms to
better protect women from violence and to ensure equality in divorce. In her
work with the United Nations, Evatt developed international human rights
jurisprudence, including to protect women against discrimination.
Progress has been made since these women started out in the law, but the
numbers don’t lie: more women than men start out in law, but this has not
translated into senior roles or judicial appointments. And this is a problem
when talking about who has the power to shape our laws and how they are
applied.
In the United Kingdom, less than 40 per cent of practising barristers are
women. Judges are typically selected from among silks, but only 18 per
cent of Queen’s Counsels are women. The UK Bar Council has starkly
warned that at this rate, women will never take silk in equal numbers to
men, which does not bode well for achieving gender parity at the bar or on
the bench. In Australia, the figures are worse: in New South Wales, Jen’s
home state—women are only 24 per cent of barristers and less than 9 per
cent of silks. When women are appointed silk in Australia, they are almost
immediately tapped for judicial appointment because supply simply does
not meet demand.
Why aren’t more women progressing to the top of the profession?
Structural discrimination, the studies all say. As Margaret Thornton wrote in
1996, despite the increase in numbers of women in law, women were still
‘fringe-dwellers in the jurisprudential community’ and would remain so
until structural discrimination in legal practice was addressed. In 2021,
Thornton said that while things have slowly improved, the implicit bias and
‘boys’ club’ mentality have continued. The law remains, as it was before, a
good case study of discrimination against women.
Jen’s perspective

As a law student in Australia, I didn’t see women doing the work I wanted
to be doing. Until I started working as a barrister in the United Kingdom, all
of my mentors were men. The human rights lawyers I had read about in
books at university and had seen in the media were mostly men. I’ve since
been fortunate to be able to work with many of those men, including
Australian barrister and co-founder of Doughty Street Chambers, Geoffrey
Robertson QC, Spanish jurist Baltasar Garzón, and the late Michael Ratner,
a prominent US civil rights attorney and co-founder of the Center for
Constitutional Rights. My work with them led me to women like Nancy
Hollander in the United States and Baroness Helena Kennedy QC in the
United Kingdom, who both forged the path for women at the bar and have
both become dear friends and mentors. Their stories of the early days at the
bar for women are a reminder of how far we have come, and they continue
to inspire me.
‘Gentleman, approach the bench.’ This was how judges would address
Nancy and her male opposing counsel when she started out in the early
1970s. One day she had had enough of it. When the judge asked them to
approach, she remained in her seat. The judge looked up and asked her if
there was a problem. ‘I am clearly not a man,’ she replied. From then on,
the judge would ask ‘counsel’ to approach. As a single mother, Nancy
overcame discrimination, prejudice and structural obstacles to build a
successful practice and become the first woman president of the National
Association of Criminal Lawyers in the United States. Her work defending
Guantanamo detainees was portrayed in the 2021 Hollywood film The
Mauritanian, in which she was played by Jodie Foster.
We stand on the shoulders of women like Nancy and Helena. I often
think of Ada Evans, the first woman to graduate from law school in
Australia in 1902. At law school, Ada was told she ‘had not the physique’
to become a lawyer. But she persisted. She was not allowed to practise until
1921 because of laws discriminating against women, but her efforts made
sure I now can.
My own experience—and that of women of my generation at the bar—is
a reminder of how far we still have to go. As a law student in Australia, I
suffered sexual harassment in two of the three law firms I worked at before
I even graduated. For many women, this is enough to kill their passion for
the law, if not their willingness to work in such an unsafe environment. In
my early days of practice in the United Kingdom, I was often mistaken for
the secretary. Alexandra Wilson, a criminal defence barrister and the
founder of Black Women in Law, has spoken about how she has been
mistaken for the defendant in criminal courts. Even today, when I’m asked
in social situations what I do, a surprisingly common response is, ‘You
don’t look like a lawyer’. ‘What does a lawyer look like?’ I ask in response.
And I have the benefit of white privilege. It is so much more difficult for
women of colour and those women whose English accent reveals their class
as quickly as my Australian vowels and intonation, or Keina’s Northern
Irish lilt, reveal our roots. I also have educational privilege. I may be a
colonial upstart in London, but my scholarship-funded Oxford education
eased my path to the Bar.
There are more women at the bar in London where we practise than there
are in my home state of New South Wales in Australia. But when I joined
the bar in early 2017, I quickly became aware of how few women barristers
there are. When I went into the storied Ede & Ravenscroft on Chancery
Lane to buy my wig and gown, I added my name to the handwritten list of
women barristers who have gone before me, proudly listing my little
country hometown of Berry in the book—a small but surprisingly
emotional reminder of my unlikely trajectory. Flicking through the book, I
noticed that it wasn’t very many pages before me that Cherie Blair QC had
signed her name. Cherie is another brilliant, pioneering woman in the law
who I have since had the privilege of working with, and who—like Helena
and Nancy—has forged a path for us. Later in 2017, my pupil supervisor
and leading light on women’s rights, Caoilfhionn Gallagher QC, took silk.
When you take silk, you are given your number: she was only the 398th
woman to take silk since the first in 1949. To put this in perspective, there
are around 1500 male silks in practice in the United Kingdom today, before
we even consider the number across history.
As Caoilfhionn was preparing for her silk ceremony, we discovered that
the shoes she was required to wear did not come in a size small enough for
her. This is just one of the small, seemingly unimportant but significant
ways we, as women, are told we don’t belong in the law. Indeed, it was only
in 2020, a century after women began practising as barristers, that our
colleague Karlia Lykourgou established the first ever legal outfitter devoted
to and designed specifically for women. Her company is called Ivy &
Normanton, named for the first two women to practise at the bar in England
and Wales. For 100 years women have been wearing ill-fitting legal attire
designed for men. ‘Finally, a collar that actually fits and won’t pull my
hair,’ remarked one of our colleagues.
We are fortunate to be members of Doughty Street Chambers, which was
founded to further human rights and civil liberties for all. Each year we
have an event for International Women’s Day to celebrate the work of
Doughty Street women, and all women in the law, in pursuit of women’s
rights. Each year I marvel at the remarkable work done by our colleagues:
challenging laws criminalising abortion in Northern Ireland, suing prisons
for their failure to provide women prisoners adequate sanitary supplies,
defending battered women prosecuted for killing their abusive husbands or
sued for defamation for speaking about their abuse, defending women
arrested for protesting for women’s rights and suing the police for failing to
protect women from their abuser. And each year I am horrified to hear the
stories about how women barristers and solicitors are treated in our courts
and in the media. Not so long ago, a woman QC explained how, when in a
heated argument with a male silk, a judge cautioned her not to be
‘hysterical’—a gendered comment that would never be levelled at a man.
But things are changing: in 2022, a barrister was disciplined and fined for
using this language.
How we are represented in the media matters too. When Amal Clooney
walked into the European Court of Human Rights to argue a case with
Geoffrey Robertson QC for Armenia about genocide denial, a male
journalist stopped her to ask her what she was wearing. With the quick wit
and humour typical of my brilliant friend and colleague, Amal laughed,
pointed to her barrister’s robe and said, ‘Ede & Ravenscroft’. No one asked
Geoffrey what he was wearing. In the media, women lawyers are too often
defined by our appearance and fashion choices.
After I won the Rhodes scholarship, I got a call from an Australian
magazine wanting to profile me. It was my first national media profile. I
thought they might be interested in the fact I was the first Rhodes scholar
from my region, and a woman (at the time, men still dominated the
scholarship: only three of eleven scholars that year were women). The
photographer called me to discuss the concept: they wanted me pictured in
nothing but an academic robe and ‘sexy stilettos’. I was to be their real-life
version of Elle Woods, Reese Witherspoon’s character in Legally Blonde. I
refused, telling them it was already hard enough to be taken seriously as a
young woman in the law. After some negotiation, I was pictured in a ball
gown with the robe. I can’t imagine Tony Abbott or Malcolm Turnbull, or
any other male Rhodes scholar since, having to have that conversation.
It has continued since I have become a lawyer: like Ada Evans more than
a century before me, my physique is apparently still relevant. In 2011, a
piece in The Monthly about the Julian Assange extradition trial described
me as ‘the curvy, blonde barrister’. There was no description of the ‘rotund’
or ‘slim’ male lawyers in the room—it was only my physique that got a
mention.
If it’s not about how we look, then it’s about how we behave. We are
judged for doing our jobs—on the one hand, for being not being ‘womanly’
enough, and, on the other, for not being enough like a lawyer. Conservative
columnist Gerard Henderson once described me as ‘the sassy Assange
lawyer’. He was using ‘sassy’ in the pejorative manner it was used back
when Ada Evans was at law school: I was too big for my boots, even
though I was saying exactly what Geoffrey Robertson QC was saying about
the same case. (It made me laugh to think that, whatever Henderson meant
by it, ‘sassy’ means something entirely different and positive to younger
generations of women.) Another profile headline described me as the
‘hardnosed’ lawyer, as if I needed another adjective to ensure readers
understood I had the characteristics required of a lawyer. Notice next time
you read a description in the media of a woman lawyer being ‘aggressive’
for doing her job. Would it be said of a man?
And all of this continues today. During the Johnny Depp defamation trial
in the United Kingdom, the media coverage often perpetuated myths and
sexism, including about us as women lawyers. I was counsel for Amber
Heard and assisting News Group Newspapers defend against Depp’s claim,
which alleged Amber lied about him abusing her. As the trial opened, a
Daily Mail story was devoted to profiling me and lead counsel for the
newspaper, Sasha Wass QC, an eminent woman in the law with decades of
experience. The headline proclaimed we were ‘Amber’s Avengers’. The
article described my personal life and ‘figure-hugging outfit’ and Sasha’s
‘elfin face’ and ‘penchant for wearing leather boots’. But even more
problematic than the focus on our appearance and fashion choices, was the
headline: ‘Ms Heard is banking on this formidable legal duo to slip a stiletto
into Johnny Depp’. The newspaper had chosen a gendered, violent
metaphor to describe women lawyers doing their job: our job was depicted
as perpetrating violence on Depp, when our job was to prove that Depp had
violently assaulted Amber (see Chapter 7). Would a male lawyer doing their
job ever be described as beating or stabbing the opposing client with their
shoe? And how could the trial be complete without an Elle Woods
reference: a front-page Daily Mail image of me comforting Amber as we
prepared to enter court was captioned ‘Legally Blonde’.
When working on high-profile and controversial cases, women lawyers
—like women journalists and politicians—face online attacks and threats. It
is sadly not unusual for me or for my colleagues and clients to receive
threats. The online attacks we face as women are typically gendered and
sexualised: commenting on our appearance, our families, our personal
relationships, or making threats of gender-based violence. Over the years, I
have received rape and death threats, marriage proposals and indecent
images. When I spoke with Rebekah Giles, a well-known media lawyer in
Australia who has represented high-profile feminists, women making
accusations of abuse and men accused of abuse, she told me she had faced
the same. Rebekah pointed out that despite working on many of these cases
on teams that included male lawyers, it was only the women lawyers who
faced this kind of abuse. She told me, ‘At times, it’s very unsettling. Some
days I wonder, am I going to get my throat slit on the way to the carpark?’
And this is our experience in Australia and the United Kingdom. Women
lawyers I’ve worked with in countries like Colombia, Mexico, India and
South Africa face serious threats of physical violence. As we explain later,
this is just another of the ways women are told to be quiet, play small, and
stay out of public and professional life.
We also know that women barristers are paid less and briefed less—and,
again, it’s worse for women of colour. Studies show we are interrupted
more in court—a fact that holds true all the way to the US Supreme Court.
Workplace culture still makes it incredibly difficult for women with
children to succeed in the law, which I think partly explains why so few
women remain in the profession, and why we have so few women taking
silk and becoming judges.
All of this matters. It matters because we need a diversity of perspectives
in the way the law is argued, shaped and applied. We need more women
lawyers and judges, and more lawyers trained and educated not to pander to
outdated and false myths about male violence. As Harriet Johnson argues in
Enough, a more representative legal system is vital not just to ensure public
confidence but to ensure fair treatment of women. Johnson writes about the
injustices resulting from sexist arguments in criminal cases about gender-
based violence, but, as we will show in Chapter 8, these same problems also
arise in civil cases that focus on women’s rights to speak about it.

Malestream media

Was the MeToo movement a legitimate attempt to break the silence on

sexual assault or a baseless witch-hunt?
Well, that depends on which newspapers you read—and on which
journalists are writing about it.
Newspapers, journalists and commentators around the world, from Italy
to Germany, from Australia to China, India and beyond, have described
MeToo as ‘a witch-hunt’ and condemned the ‘media trials’ of the accused
men. In India, one newspaper described MeToo as ‘an epidemic that would
destroy Indian culture and civilisation’. In Hong Kong, media reports
claimed that ‘real victims’ should report to the police, not the media, and
that MeToo was ‘the dumbest movement so far of the century’. In other
coverage, women have been depicted as liars and had their credibility
questioned, with reference to all the same harmful myths we have been
discussing in this chapter.
When we talk about violence against women, we also need to ask what
role the media plays in perpetuating these harmful myths and stereotypes.
How many women will speak out about their abuse if they see other women
who speak out being vilified and attacked in the media? How many more
women would speak out if they were treated with the respect they deserve?
The United Nations has asserted that the media can play a role in ending
violence against women if it challenges harmful myths and social norms
that condone discrimination and violence—and if it reports more stories
about it to raise awareness. Media coverage that perpetuates those myths
and trivialises male violence, UN Women warns, can even encourage the
reproduction of violent acts.
A 2016 media content analysis report by Australia’s National Research
Organisation for Women’s Safety (ANROWS) confirmed that stories often
minimised or sensationalised violence against women. Australian journalist
Jane Gilmore (see @JaneTribune on Twitter) started a project called ‘Fixed
It’ to highlight this problem. Taking headlines from the Australian media,
she ‘fixes’ them—crossing out the actual headline and substituting her own,
which more accurately reports the case at hand:

Man claims violent sex attack was agreed rape fantasy Woman alleges
man raped her three times and threatened to kill her (Courier Mail,
Australia)

Gilmore’s aim is to demonstrate how the media regularly preferences male

perpetrators’ versions of events when reporting on abuse cases and
minimises male violence.
To address this problem, the United Nations recommends the media
achieves gender parity. This is because the media, like the law, has a
problem with diversity. The media is so heavily dominated by men that UN
discrimination expert Alda Facio has dubbed it the ‘malestream media’. A
2016 study by the Reuters Institute showed that more than half of
journalists in the United Kingdom are men, and 94 per cent are white. A
study in 2020 by Women in Journalism, a networking, training and
campaigning organisation for UK journalists, concluded that there was a
‘shocking lack of media diversity’ in the country, with only 30 per cent of
experts shown on TV being women. The Australian media also preferences
male voices and experts. For example, in 2021 women were quoted less
frequently than men (just 31 per cent of the time) and were even less likely
to be quoted by male journalists. Our research shows that these figures are
replicated in countries around the world: from Nepal to Nigeria and from
Bangladesh to Brazil.
Why does diversity matter? Because reporters, and the larger media
ecosystems, decide what gets reported on—and how it gets reported.
While women remain in the minority of journalists, it is consistently
women journalists who are at the forefront of reporting on issues about
gender-based violence and the failure of accountability. In Australia, all the
key high-profile stories about gender-based violence in recent years were
the result of reporting by women: Samantha Maiden (News Corp), Lisa
Wilkinson (Ten Network), Louise Milligan (the ABC), Nina Funnell
(freelance journalist), and Jacqueline Maley and Kate McClymont (Nine
Media), including reporting on the Brittany Higgins and Christian Porter
stories, as well as the sexual harassment allegations against former High
Court judge Dyson Heydon (which we examine in Chapter 3). In the United
States, Jodi Kantor and Megan Twohey broke the Weinstein story, as they
explain in their book, She Said. In Colombia, Catalina Ruiz-Navarro and
Matilde de los Milagros Londoño at Volcánicas magazine have done
groundbreaking work reporting stories of abuse and harassment that the
mainstream media wouldn’t touch (see Chapter 2). Indeed, Volcánicas was
set up specifically to report these stories because the malestream media
refused to report it—or reported it badly.
Yet the women who choose to report on stories about gender-based
violence face additional threats, attacks and online harassment—all of
which are forms of attempted silencing. The Association for Progressive
Communications (APC) has identified that women journalists are one of the
most frequently targeted groups when it comes to online violence, attacks
which are often sexualised, make references to personal and family
relationships, and use insults involving physical appearance and intellectual
capability. Intimidation rarely comes as a direct response to women’s ideas
or arguments, but focuses instead on their identity as women who think for
themselves and speak out.
British newspaper The Guardian commissioned research into 70 million
comments left on its site since 2006, which made some significant findings:
eight of the ten most abused writers were women (the two men were black);
articles written by women—regardless of subject—attracted more abusive
and dismissive trolling than those written by men; and articles about
feminism or rape attracted the highest levels of blocked comments.
When we spoke to Pragna Patel, an intersectional feminist, she raised
growing concerns about the wider context of silencing and the lack of a
wider discussion of women’s rights to freedom of speech and expression.
Although her experiences of silencing relate to speaking out about violence
against women and girls in particular, ‘it is in a climate where the spaces to
speak out are not just shrinking, but are becoming intimidating spaces,
threatening spaces, [because of] the rise of authoritarianism around the
world’. Pragna told us that we are living in a moment in which people who
are campaigning and attempting to change the law face violence and
intimidation, and that this is silencing feminist speech. Attacks on women
speaking out, on the journalists who report on them, and on the lawyers
who are defending their right to do so are all forms of attempted silencing.
When considering the role of the media in reporting on gender-based
violence, and the media’s role as the vehicle for women to speak out, it is
important to understand these structural issues. As we will see in Chapters 4
and 6, the way a story is reported matters, and can have serious
consequences for the women who speak out.

Removing the gag

Justitia is depicted in our courts as holding the scales while blindfolded. But
for the many women silenced by the law and by our justice systems, it
would be more realistic to depict her as gagged—as she is on the cover of
this book. This needs to change, and this is why we argue, just as RBG did,
that women belong in all places where decisions are made—in parliament,
in the courts and in the media. Many more women.
Laws made by men and judged by men have historically protected men,
and those same laws have failed—and silenced—women. This structural
issue affects how the law regulates gender-based violence. Harmful
stereotypes and gender bias pervade how violence against women is
reported in the media. and how it is treated in the justice system. This is the
reality women are coming up against. As we will explain, it also can affect
the outcome of cases involving women speaking out about gender-based
violence.
 Chapter 2

HOW MANY WOMEN ARE

SILENCED?

In 2021, Chinese tennis star Peng Shuai accused a former vice premier of
the Chinese State Council, Zhang Gaoli, of coercing her into having sex.
She posted the accusations on the Chinese social media site Weibo. The
allegation was the first to be made against one of China’s most senior
political leaders.
After she posted the accusation in November 2021, Peng Shuai was not
seen or heard from for several weeks. The original post disappeared and
news reports began to circulate that her personal feed had been censored.
The BBC reported that search terms such as Peng Shuai’s name were also
temporarily blocked from social media.
International concern mounted for her wellbeing, with the United Nations
requesting proof that she was safe and well and able to speak in her own
terms. Serena Williams, Naomi Osaka and Novak Djokovic, some of the
biggest stars in world tennis, spoke out and raised their own concerns. The
Women’s Tennis Association (WTA) pulled out of all tournaments in China
the following month.
Then, in December, Peng Shuai gave an interview with media, wearing a
red national tracksuit. In the interview, she walked back her accusations,
saying, ‘I never said anyone had sexually assaulted me in any way.’ She has
since been seen on social media and in person, but many are still concerned
for her welfare. Some even noted that, in the video of her interview, there
was a mirror showing a man standing there—likely her minder. The WTA
has maintained its concern, and no events are taking place in China in 2022.
Peng Shuai’s case was a window into the censorship that has stifled the
MeToo movement in China: the hashtag #MeToo is itself blocked, along
with other key phrases, including ‘rice bunny’, a Chinese homonym for the
MeToo campaign. Prominent MeToo figures like Xianxi, who was sued for
defamation after raising sexual harassment allegations against CCTV
presenter Zhu Jun, and their supporters, have been blocked from posting on
Weibo too.
Others have been arrested and imprisoned. For example, Huang Xuequin,
an investigative journalist who has been involved in several MeToo
campaigns to provide support and assistance to survivors, is currently in
prison on charges of ‘subverting state power’. Human Rights Watch reports
that many Chinese MeToo activists have been ‘[s]ilenced by their home
country’ and have fled overseas, where they have freedom to speak, post
online and be heard.
Just as there is a continuum of violence against women, from wartime
rape to all different forms of violence, abuse and harassment, there is also a
continuum of silencing. In this chapter we set out how human rights
activists, women advocating for sexual and reproductive rights, journalists
reporting allegations of sexual abuse and harassment, and individuals
speaking about their own experiences of abuse are being silenced through
the use of the law. We explain how the law is being used around the world
—in different places and in different ways—to silence. And with different
levels of silencing. This is what the United Nations has called ‘gendered
censorship’. Women are being silenced and their right to free speech is not
being protected, or respected. From the conviction of directors of domestic
violence shelters for speaking out about violence, to the targeting of those
advocating for the decriminalisation of abortion, to the detention of migrant
women who report their abuse to the police, there has been a global failure
to uphold and protect women’s free speech when speaking out against
violence and abuse and advocating for their rights.

Criminal laws that silence

Criminal laws are punitive. They can result in jail sentences. They can also
silence women’s accounts of sexual violence. As Indian superstar lawyer
Karuna Nundy explained to us, different criminal laws can work to make
women reticent to come forward about abuse and punish them when they
do. For example, in some countries adultery (or sexual relations outside of
marriage) is a criminal offence. The United Nations has noted how the
criminalising of sexual relations between consenting adults is a violation of
human rights, and how in some countries such laws penalise only women.
Such discriminatory laws and the criminalisation of adultery also mean
that a woman faces legal penalties if she makes an accusation of rape or
sexual violence and the man alleges it was consensual or the authorities
decide that she should be punished. The UK public were shocked in 2016
when the BBC reported that a British woman was ‘arrested in Dubai after
reporting rape’. She reported that she was raped by two British men, but
was then charged with having extramarital sex and detained. That media
report followed the sentencing of a Norwegian woman to sixteen months’
imprisonment for extramarital sex after she reported her rape to police in
Dubai (though she was pardoned a few days after sentencing).
Organisations such as Amnesty International have brought attention to
extreme examples: girls as young as thirteen were stoned to death in 2008
after being accused of adultery following their rape in Somalia. None of the
men accused of rape were arrested. The European Court of Human Rights
heard how Polish authorities opened a criminal investigation into a
fourteen-year-old girl for the crime of unlawful intercourse after she
reported a rape and requested an abortion. The girl was deprived of her
liberty, separated from her mother and treated ‘in a deplorable manner’,
breaching her fundamental human rights.
Research carried out by experts at the United Nations has underlined that
most of these laws are specific to women: it’s fine for a man to have an
affair, but a crime if a woman does. In Iran, if a woman was drinking
alcohol when their rape occurs, they could face criminal prosecution for
engaging in unlawful activity. How many women are going to come
forward and report their rape, or even risk telling anyone about it, if they
may be charged with adultery, sent to prison or stoned to death? How many
women have been silenced from speaking about their abuse because of laws
like these?
 Discriminatory criminal laws also affect the LGBTQI+ community, who
in many countries around the world remain at risk of criminalisation for
reporting sexual abuse. It remains a crime in 78 countries, including 35
Commonwealth countries, for LGBTQI+ people to engage in consensual
intimate relationships. In some countries, including Iran and Pakistan, the
punishment is a death sentence. Such laws produce a chilling effect: they
prevent LGBTQI+ victims of sexual crimes from going to the authorities to
seek protection from violence or justice for abuse for fear of their own
criminalisation. If a same-sex rape is reported by a victim, the moment the
perpetrator claims it was consensual, the victim may face prosecution
themselves. Societal notions of heteronormativity continue to discriminate
against queer communities. This means that sexual and gender minorities
live in fear of persecution by the state and fear of others who use criminal
laws to blackmail and exploit queer people. How many women—or men—
would report their sexual or domestic abuse if it meant their own arrest?
How many queer people have been silenced because of laws like these?
Who is going to come forward to speak when the law fails to protect you?
This was the problem explained by Rosanna Flamer-Caldera, a leading
LGBTQI+ activist in Sri Lanka, in her legal challenge against the laws
criminalising consensual sex between women. Keina acted for Rosanna in
her case before the UN Committee on the Elimination of Discrimination
Against Women. Rosanna explained that the criminalisation of same-sex
conduct meant that lesbian, bisexual and trans women were too scared to
report gender-based violence or abuse to the police, since it could lead to
their own arrest. CEDAW ruled that Sri Lanka had violated Rosanna’s
rights by enacting a law to criminalise same-sex conduct between women,
finding that it prevents people from coming forward to seek protection.
In England, there is a campaign to introduce a law that would protect
undocumented migrant women from violence by safeguarding their ability
to report it without risk of criminalisation and deportation. We have seen
through our work that when migrant women try to speak out about their
abuse, they often find themselves in an impossible dilemma: do they go to
the police for protection and risk being arrested and placed in immigration
detention, or do they remain silent and thus vulnerable to the abuse?
Migrant women, and the organisations representing them, have been
advocating for a law to make sure that when they come forward to report
sexual or domestic violence, they are not arrested and detained for
immigration offences or deported. In response to this blind spot in the
Domestic Abuse Bill in the UK, Baroness Meacher said:

Migrant women with insecure immigration status are, in my view very

understandably, reluctant to report domestic abuse to the statutory
services. Would you, one might ask, particularly to the police? This
reluctance is due to the current data-sharing agreements between
statutory services, including the police and the Home Office, for
immigration control purposes. This means that women affected cannot
seek support or a safe place to go, with the most appalling
consequences, as one can very easily imagine. Perpetrators are not
being brought to justice.

And vulnerable women are being silenced about their abuse. It is

reported that 60 per cent of UK police forces share information with the
Home Office. In response to the problem, Southall Black Sisters and the
Centre for Women’s Justice filed a super-complaint against the police to
challenge this practice. Following the super-complaint, the UK policing
authorities issued a report in 2010, Safe to Share? The report found that in
25 out of 36 case examples, the police forces caused harm. This included
taking no action in response to the crime and leaving the perpetrator of the
abuse against the victim unchallenged; treating victims as perpetrators and
detaining them in custody because of their immigration status; and telling
victims to sort out their immigration status before reporting abuse, exposing
them to further abuse. The report identified a risk that perpetrators use their
victims’ immigration status as a ‘weapon’ of control, and that this deters
victims from coming forward. Clearly the law needs to change.
The enactment of a hostile environment policy for migrants stops women
—especially Black women—from reporting violence by their intimate
partners in the United Kingdom, for fear that they will be removed from the
country. Women do not report violence to police because they do not trust
that police will protect them. Associate Professor Marie Segrave of Monash
University has explained that fear of deportation and loss of custody of
children is a key barrier to temporary migrants reporting their abuse, and
that these fears are often exploited by abusive family members.
 In Australia, a long history of colonial and police violence—including
high rates of Indigenous deaths in custody—means there is widespread
distrust and fear of police. According to a 2020 report by Australia’s
National Research Organisation for Women’s Safety, led by Professor
Marcia Langton AO and Dr Kristen Smith, factors such as the fear of child
removal and isolation from their family and community prevent First
Nations women from reporting and speaking out about their abuse. To put
this fear in context: Indigenous children are 9.7 times more likely to be
removed from their families than non-Indigenous children, and one in every
16.6 First Nations children lives in out-of-home care.
For those paying attention, story after story shows how the authorities
fail First Nations women, subject them to further violence and even to arrest
and prosecution for reporting domestic violence. For example, Ms Dhu died
in custody after her grandmother called the police to save her from
domestic violence at home. When the police arrived, they didn’t just arrest
her violent partner, they also then arrested Ms Dhu over unpaid fines. She
later died in custody from injuries sustained from the domestic violence,
after what an inquest described as ‘inhumane’ handling by police, who had
ignored her reports of pain.
In another case, in 2013, Tamica Mullaley was stripped naked and
brutally beaten in the street by her boyfriend, who then fled the scene.
When the police arrived, she was uncooperative, so they arrested her
instead and left her baby at home. The infant was subsequently murdered by
her boyfriend, the domestic violence perpetrator. It wasn’t until 2022, after
almost a decade of campaigning, that Tamica received an apology from the
Western Australian government.

#LetHerSpeak: When speaking out is contempt of court

In Australia, Grace Tame’s case—and her #LetHerSpeak campaign with

journalist Nina Funnell—has led to much greater awareness of laws which
silence victims of sexual assault. The campaign has shown not only that
women often face public contempt for speaking out about their abuse, but
also that speaking out itself can amount to contempt of court.
Contempt of court laws in Australia, England and Wales, and elsewhere
are designed to protect against conduct or reporting that might prejudice a
fair trial, and to sanction those who disobey or ignore court orders. This
includes enforcing reporting restrictions or non-publication orders, which
protect the anonymity of victims of sexual offences by making it a criminal
offence to publish their names or otherwise reveal their identities. These
laws aim to encourage women who might otherwise be deterred from
reporting their abuse if they are publicly identified as victims of sexual
assault to come forward and make complaints.
This makes sense—but the way the law has been drafted in some states
has had unintended consequences, especially where victims want to tell
their story and yet are not permitted to waive their right to anonymity in
order to do so. For those survivors, like Grace Tame, the law functioned as
a gag order, preventing them from talking about their assault, from naming
their assailant and from telling their own story.
In England and Wales, all victims of sexual offences are autonomically
guaranteed anonymity for life from the moment they make an accusation.
This right to anonymity continues even if the accusation is withdrawn or the
police decide to take no action. Victims and survivors have the power to
waive their right to anonymity, provided they are over sixteen years old and
they provide their consent in writing. Victims under sixteen cannot waive
their right to anonymity.
Breaching contempt of court laws and identifying a victim of sexual
assault is a criminal offence, and can result in a fine or even prison time.
These laws aim to ensure the administration of justice by—for example—
prohibiting behaviour such as shouting in a courtroom, disrupting court
hearings or taking photographs during court proceedings. They also
regulate what you can say publicly about a court case, in order to protect the
right of the accused to a fair trial. For example, it is an offence for a
newspaper to proclaim someone’s guilt before a verdict is reached, or to
publish anything that could prejudice a trial. Usually, victims of crime,
witnesses and offenders under eighteen years of age cannot be named, or
their images published, in the news media or on social media.
The rule ensuring anonymity for victims of sexual assault was introduced
in the United Kingdom 1976 out of concern about the community shame
associated with being a victim of sexual assault and how victims had been
treated in the media. It makes a lot of sense, too, particularly in cultures and
communities where sexual matters are taboo, or where there continues to be
shame and stigma around being known as a victim of sexual abuse, which
can lead to exclusion or retaliation. Ensuring victims and survivors can
come forward without being associated with the abuse or the crime is
important.
In Colombia, by contrast, as the feminist journalist Catalina Ruiz-
Navarro explained to us, there is no law preventing sexual assault victims
from being named. This means that women complainants in rape and sexual
assault cases are identified in the media, and they are often vilified, their
reputations attacked, and their names forever associated with the abuse. On
the other hand, privacy laws and threats of libel suits keep the names of
alleged abusers out of print, meaning that the crimes are associated only
with the victims. For this reason, in countries like Colombia, there are
efforts to introduce similar anonymity provisions to ensure that survivors do
not face media intrusion and attacks, and are not forever defined by what
was done to them. How many victims of abuse have been silenced after
watching other women be attacked and vilified in the media for reporting
theirs?
Contempt laws provide significant protections for those who want
anonymity. We spoke to one of Australia’s leading media lawyers, who
sadly became the victim of what is colloquially known as ‘revenge porn’.
She did not want to be named but wanted to share her story. Her ex-partner
pleaded guilty to threatening to share intimate images of her—images
which, she said, she later found out did not exist. She was shocked when
her name, and the details of the case, were suddenly all over the tabloids,
and she had to obtain a court order to protect her right to anonymity. She
explained how she discovered, through her own horrific experience, that
when parliament had introduced new sexual assault laws to incorporate the
non-consensual sharing of private images as an offence, the legislators
forgot to extend anonymity protections to victims and survivors. It was an
oversight that enabled the media to report about the case, naming her as the
victim.
She shared her story for this book because she wanted to explain that—
like many victims and survivors—she simply would not have come forward
if she had known her anonymity would not be protected and the details of
the story would be published to the world, and be online for her children to
read. She also made the point that she was in a unique position to move
quickly to protect her anonymity. How many women have the legal
knowledge, networks and resources to instruct counsel and, if the material
has been shared or published online, to get it taken down?
But there is a flipside to these laws, which has been seen most clearly in
Australia. The desire to protect women from being identified has,
inadvertently, led to women being silenced. In Tasmania, as in some other
Australian states, women can’t simply give their consent to waive their
anonymity and tell their own story: they must get a court order and
convince a judge that it is in the public interest.
Grace Tame’s case brought this issue into the national spotlight. Her
#LetHerSpeak campaign aims to abolish sexual assault victim gag laws—
and led to her being named Australian of the Year in 2021. Tame was a
victim of child sex abuse. As a vulnerable fifteen-year-old, she was
groomed and repeatedly sexually assaulted by her 58-year-old teacher
Nicolaas Bester. Bester was convicted and sentenced to two and a half
years, serving just eighteen months.
After being released from prison, Bester started making vile, victim-
blaming comments online about the sexual assault he had committed
against Tame, including the tired old excuse that ‘she wanted it’. She could
not respond—under section 19K of the Evidence Act in Tasmania, it was
illegal to identify someone as the victim of a sexual assault, even if that
person was you. It was a strict liability offence, and newspaper editors or
anyone else who published Tame’s name could face up to twelve months in
prison. Unlike in the United Kingdom, Grace couldn’t simply waive her
right to anonymity. She had to convince the courts that it would be in the
public interest to let her speak.
This was not just a dormant law still on the books—it had been enforced
as recently as 2012, when the Supreme Court of Tasmania fined the Sunday
Tasmanian newspaper and its acting editor for contempt of court for
publishing an article with the name, photograph and age of someone who
said she was a victim of rape without first obtaining a court order. The
Supreme Court stated:

Such a provision may encourage representatives of the media to pester

victims to consent to publicity. It is undesirable to expose victims to
this pressure at a time when they are likely to be in considerable
emotional turmoil and may be ill-equipped to weigh up and assess the
consequences of publicity.
 Grace Tame’s only option was to get a court order that would permit her
to identify herself as a sexual abuse victim and speak about her experiences.
It took two and a half years and cost $9000 of in-house legal fees and
application fees to obtain that court order. It was only in August 2019, after
her court order was granted, that Grace was able to speak out for the first
time. The front-page story by Nina Funnell carried a picture of Grace with
the headline: ‘My name is Grace Tame and I am Jane Doe’.
As a result of her experience of silencing, Tame and Funnell started a
campaign to change sexual assault victim gag laws around Australia and
prevent other survivors from being silenced. Thanks to their #LetHerSpeak
campaign, sexual assault victim gag laws in the Northern Territory, Victoria
and Tasmania have now been amended to allow survivors of abuse to self-
identify in the media where they consent to be named and where they will
not identify another survivor.
Grace Tame’s campaigning also resulted in another important change to
the law. The Tasmanian criminal offence of ‘maintaining a sexual
relationship with a person under the age of 17’ has been renamed as ‘the
persistent sexual abuse of a child’, in order to properly reflect the abuse to
which she was subjected as a child. As Tame explained in her campaigning,
the description of the offence in the law diminished its seriousness and
contributed to victim-blaming in the media. At the time of Bester’s criminal
trial for abusing her, some media and TV programs covered the story as ‘an
affair with a student’, suggesting that Grace was somehow an equal
participant in her own abuse, or that it was an illicit affair rather than a
crime. The renaming of the offence calls it what it is: sexual abuse. It makes
clear the gravity of the offence and its non-consensual nature—it is not a
‘sexual relationship’ between equals, it is the ‘sexual abuse’ of a child.
Far too often, survivors who speak out about their abuse face media
intrusion, online trolling and unacceptable attacks. For this reason,
anonymity should be ensured for the survivors who want and need that
protection. But laws that result in the gagging of victims are not fit for
purpose, and only end up harming those who want to speak out and those
who feel it is healing to go public. This is why it is important to listen to
victims and survivors when they speak. Tame’s activism and her
#LetHerSpeak campaign has not only changed the law, it has also started to
change the national narrative: it is not shameful to have been abused, or to
talk about being abused. You can talk about it if that is right for you, and
you can be recognised and celebrated for speaking out.
________

As we reflected on Tame’s campaign, we began to notice a pattern whereby

anonymity rules have prevented victims and survivors from speaking about
their abuse. In the United Kingdom, there is a growing debate around
anonymity provisions in family law cases, and it came to a head in late
2021 with the publication of the judgment in Griffiths v. Griffiths.
In family court settings, the normal order of things is that the matter
remains secret in order to protect the privacy of the family and the children
involved. When judgments are published, they are commonly anonymised
to protect the identity of children. It is a contempt of court to speak about or
publish what happens in family court proceedings without the permission of
the court. Some have argued that while the privacy rights in family court
proceedings provide important protections for children and for families who
want to maintain anonymity, the laws also can have the inadvertent effect of
silencing victims. Women may be isolated from important support networks
if they are barred from being able to tell their friends and families about the
abuse.
In 2020, a former Conservative MP, Andrew Griffiths, was found by a
family court to have raped his then wife, Kate Griffiths, who is now also an
MP, having taken over her ex-husband’s seat. While Andrew Griffiths
denies the allegations of rape and domestic violence, the family court found
that, on the balance of probabilities, Kate Griffiths was telling the truth.
Kate Griffiths gave evidence of coercive control, sexual assault and
domestic violence inflicted over almost a decade, including while Andrew
Griffiths was an MP.
Initially, the judgment in Griffiths v. Griffiths was not published—
meaning the findings in relation to the rape and domestic abuse remained
secret. Louise Tickle, a journalist for Tortoise Media, one of the
organisations that challenged this secrecy, explained that this also meant
Kate Griffiths was silenced: ‘Kate Griffiths would have been banned—
forever—from telling even her family and friends about what the court had
determined had happened to her, had I at Tortoise, and Brian Farmer at PA
Media, not fought for over a year to publish.’
 The media organisation argued in court that the judgment should be
published: it was in the public interest to do so because the public had a
right to know that an elected MP had been found in law to have repeatedly
raped and abused his wife while in office. Andrew Griffiths initially
opposed the application made by the media, saying the judgment should
never be published. He then changed his position and said the court should
publish the judgment, but only on the condition that all names were
removed—that is, the judgment would be anonymised so that he couldn’t be
identified.
The organisation Rights of Women, represented by our colleague
Caoilfhionn Gallagher QC, intervened to support the media organisations’
applications. In their intervention, Rights of Women argued that women
who are victims of domestic abuse are entitled to choose between
anonymity and publicity, and that they have a right to freedom of
expression and ‘informational self-determination’. In other words, women
have the ‘right to tell their own stories’.
Kate Griffiths supported the application by the media, and argued that the
judgment—including her and her ex-husband’s names—should be
published. Her right to free speech and to share her experience as a survivor
of rape and domestic abuse was affected.
As the judge summarised, she argued that she ‘should not be “silenced”
by the court, at the instance of the father [of her child]’, and noted that ‘if
family proceedings had never been commenced, she would have been free
to share publicly the abuse she had suffered, and she should not be barred
from speaking publicly after seeking legal protection for the child through
the family courts’.
In the High Court, Lieven J decided that the judgment should be
published, along with their names, but that the identity of their child was to
be protected. In reaching her decision, Lady Justice Lieven noted that Kate
Griffiths had ‘a right to speak to whomsoever she pleases about her
experiences’, and that the courts should be careful in situations where there
have been findings of coercive control to ensure that proceedings didn’t
become a means of seeking further control. ‘For women who have been the
subject of domestic abuse to be unable to speak about their experiences,
including their experiences through litigation, must often be extremely
distressing. And may in some cases be re-traumatising.’ Considering the
balance between Kate Griffiths’ right to speak and his right to privacy, the
judge found that it tipped in favour of allowing publication of the judgment
and the parents’ names.
Tortoise Media has now published details of the many legal steps that it
took to enable it to report the findings against Andrew Griffiths and to
allow Kate Griffiths to speak.
These campaigns and cases raise important questions about who gets to
speak and when—and whether the law is adequately protecting the right to
free speech. How many women have been silenced from speaking about
their experience of abuse by anonymity or non-publication orders? As a UK
judge explained in a case called Re Roddy, free speech ‘is the right, as a
human being, to share with others—and, if one so chooses, with the world
at large—one’s own story’. The right to tell one’s story is a fundamental
part of who we are. The freedom to report the truth has been described by
the courts as a basic right. Yet many women we have spoken to have
described feeling like the Little Mermaid—having had their voices stolen
from them by the law. The family courts are important venues for the
protection of victims of domestic violence and abuse, and of children, but
non-publication orders and the laws of contempt can also lead to silencing.
These are just some of the legal battles that women face in order to tell their
stories.

Silencing the campaigners

Should women face criminal charges for walking down the street with a
large plastic vagina, or for marching for the right to have legal and safe
abortions? While most places in the world advocate for freedom of
expression, there seems to be a double standard when it comes to
campaigning for women’s rights. Religious freedom is often used as a
means of silencing women, just as defamation is used not as a shield but as
a sword.
In Spain and Latin America, ancient criminal laws on injury to religious
feelings are used to prosecute and criminalise women’s rights marches. For
example, in Spain, a woman was given a criminal record for marching with
a plastic vagina down a street because ‘it was evidently with the intention of
ridiculing and laughing in a gratuitous way at Catholic tradition’. The
criminal investigation was instigated by a complaint from the conservative
lawyers’ association that carrying a ‘powerful vulva’ down a street is a hate
crime. The convictions and the censorship of vaginas and vulvas are a
ridiculous violation of the freedom of expression of those who march for
greater respect of the rights of women to choose and to have bodily
autonomy. It would all be funny—and ludicrously so—if women weren’t
ending up with criminal records.
In the United Kingdom, women have found themselves having to
challenge bans on protests about women’s rights and gender-based violence.
A recent example is the vigil organised in the wake of Sarah Everard’s
disappearance, kidnapping and murder. Women and girls took to the streets
en masse, to ‘reclaim the streets’, to advocate for the right to live a life free
from violence, and to say enough is enough. The organisation Reclaim the
Streets, represented by lawyers including two of our colleagues, had to go
to court to challenge the Met Police’s handling of the proposed vigil—
which effectively banned them from organising an event to express their
collective grief and to campaign for changes in attitudes and responses to
violence against women. The Met threatened the organisers with fines and
prosecutions if the event went ahead. The High Court found that the four
organisers’ human rights to free speech and freedom of assembly had been
breached.
There is a long history of silencing women who campaign for the right to
access safe abortions.
When Keina was a law student at Trinity College Dublin, one of her
professors was Ivana Bacik, who is currently leader of the Labour Party in
Ireland. Ivana was then a criminal law professor and well-known feminist
activist. In 1989, she was threatened with prison. For what crime?
Providing the phone numbers and addresses of abortion clinics in England
to Irish women. She was prosecuted not for being involved in an abortion,
but for simply giving information to women about where they could safely
access an abortion outside the country. At that time in Ireland, many women
were forced to travel to England, and pay a lot of money, for access to legal
abortions. This was because abortion was unlawful in Ireland—and this
remained the case until 2018, with the groundbreaking movement and
referendum to repeal the Eighth Amendment to the Constitution of Ireland,
which finally changed the law.
Ivana avoided prison, largely thanks to her lawyer, Mary Robinson—who
would go on to become the first female president of Ireland. But her case
showed that the law could be weaponised against women to stop them from
sharing information. Information is a form of power—it educates and
empowers women to know their rights and to take action for change—and,
eventually, the law was changed. This shows the power of advocacy, but
also the power of silence. Silencing women slows progress, if not
preventing it altogether. And when there is a vested interest in silencing
women to protect the status quo, the law can be and has been used as a
blunt tool to shut us up. This should be deeply worrying—and should
prompt us to question who is really entitled to freedom of speech, and why.
The weaponisation of the law to silence abortion activists occurs in a
broader context, and often comes together with non-legal silencing
techniques, including intimidation and harassment. Women speaking out
and informing other women are facing legal threats, as well as physical and
online attacks, and the ultimate silencing tactic: assassination attempts and
extrajudicial killings. This builds on the broader continuum of silencing
which is produced by the criminalisation of abortion. Women who have
been raped are too scared to come forward and seek medical abortions
when they fear criminalisation for doing so.
We recently caught up with the Colombian feminist and human rights
activist Mónica Roa. Mónica is well known across Latin America for
bringing a case that legalised abortion in Colombia, which paved the way
for similar court decisions elsewhere in the region. She was only in her
twenties when she brought that case, but it would change her life forever.
She was sued, received death and rape threats, had to have 24/7 bodyguards
for years and her office was shot at; eventually she was forced to leave the
country. Throughout and despite all this, she continued her work with
Women’s Link Worldwide, where Keina also worked, to implement the
legal decision to make abortions available for women whose life or health
was at risk or who had been raped.
After Mónica took and won the case that overturned the abortion ban, she
filed another lawsuit on behalf of 1201 Colombian women, claiming that
the state had violated their right to information by failing to provide
accurate sexual and reproductive health information—including about how
women could get an abortion. The lawsuit challenged misinformation by
the inspector-general—the equivalent of a minister responsible for ensuring
compliance with the constitution—and the government officials charged
with implementing the Constitutional Court’s decision on abortion.
 ‘I had faced harassment and threats since the beginning from litigating
abortion rights,’ Mónica said. ‘But when it became about the inspector-
general, I had people walking up to me on the street, screaming at me,
calling me a baby killer.’
She told us about how, in 2011, she was shot at while working in her
office in Bogota. This was despite having 24/7 security guards provided by
the state. After that, she told us, she realised she would never feel safe in
Colombia, even with state protection. She received a huge number of
threats online, many of which were motivated by religious extremism. She
was sent emails with quotes from the Bible, such as ‘the one who spills
blood will be the one whose blood is spilled’, and ‘pictures of babies in
clouds, saying they would send me to heaven too’. She recalled how people
even ‘threw shit at the door of the office’.
In 2012, out of the blue, Mónica was informed that a criminal
investigation had been opened against her for criminal defamation. She
learned via the press that she was being prosecuted, but her lawyers were
unable to find out who had made the original complaint. She believes a
powerful government official made the criminal complaint against her
because of the ‘right to information’ lawsuit she filed before the
Constitutional Court and her public statements calling for the state to make
access to abortion care a reality. Mónica explained to us: ‘It’s difficult to
understand, but the reason the government official denounced me for
criminal defamation and calumny is simply because I filed a lawsuit.’
Women’s Link Worldwide released a press statement raising its concerns
that a high-level government official could file a criminal defamation
complaint against a women’s rights activist, and emphasised that women’s
rights would be seriously undermined if the state criminalised the work of
human rights defenders. The American Bar Association wrote to the
president of Colombia to outline its concerns over the attacks against
Mónica Roa and the fact that a criminal defamation complaint had been
made against her apparently in response to her filing of a legal case on
sexual and reproductive rights.
Mónica decided to protect herself from retaliatory legal suits—and the
risk to her life—and went to stay with Keina in London. Ten years later,
Mónica continues to live outside Colombia. She continues to work on
human rights, but she still faces security issues.
 In 2019, when she travelled to Mexico, Mónica became a victim of
digital kidnap, inhuman and degrading treatment, and sexual abuse. Digital
kidnap is an emerging form of online violence whereby criminal groups
intimidate and threaten someone by cloning their phone, and then they
convince the victim’s loved ones and friends that they have been kidnapped.
At the same time, they make the victim believe that they are in a hostage
situation.
Mónica took to Twitter to raise the alarm that she had been a victim of
this new form of violence: she had been made to believe that she was in a
hostage situation in her hotel room in Mexico, and at the same time her
friends and family were told that she had been physically abducted. It was a
nightmare for Mónica and her loved ones, until the Mexican and Colombian
authorities stepped up and helped them. Monica’s legal work underlines the
personal impact and security challenges that many lawyers and activists
face for standing up for human rights, protecting the environment and
trying to ensure the world is a more equal place. It also shows how the law
can be used against us. It is judicial harassment, and the organisation
Frontline Defenders calls it out as such.
The trend of criminalising and silencing activists and those working on
women’s rights issues is also affecting those working in frontline domestic
violence services. This silencing, and the fear of legal repercussions for
speaking publicly about violence against women, is a problem that
organisations often raise with us.
It is a serious issue for many small, grassroots and frontline organisations
working with migrant women, Black-led women’s organisations and rape
crisis centres in the United Kingdom and elsewhere. It is especially a
problem in countries where the law enables police officers, state officials or
abusive men to file criminal defamation claims against those who report on
their abuse or criticise their failings.
In Latin America, celebrated journalists such as Lydia Cacho have been
arrested, detained and subjected to cruel, inhumane and degrading treatment
on charges of criminal defamation. The Mexican journalist had written a
book about corruption and child sexual exploitation. The powerful figures
she criticised wanted to silence her, so they had her arrested for criminal
defamation. The UN Human Rights Committee held that her rights had
been violated, and that Mexico should repeal its criminal defamation laws.
In Chile, the feminist dance group Las Tesis is also facing criminal charges
of defamation for creating a song titled ‘A Rapist in Your Path’, and for
calling out the police for their inaction on violence against women. The
police filed a criminal defamation suit against Las Tesis.
These cases demonstrate how the state shuts down women’s activism—in
fact, it SLAPPs them down. ‘SLAPP’ stands for ‘Strategic Litigation
Against Public Participation’, and it’s a term that is increasingly being used
around the world to explain legal actions in which the law is used as a
weapon to silence.
When we spoke to Mónica Roa about her situation, she told us that we
needed to speak to two Colombian journalists who were facing criminal and
civil suits for reporting on MeToo allegations. Catalina Ruiz-Navarro had
been the communications officer at Women’s Link Worldwide at the time
Keina had worked there and when Mónica had faced her criminal
defamation suit in Colombia. When we spoke with Catalina, we were
shocked to learn that she was facing multiple suits, along with her co-
founder and editor-in-chief of the online feminist magazine Volcánicas. It
was time to talk to Catalina.

Silencing the journalists

We caught up with Catalina Ruiz-Navarro and Matilde de los Milagros

Londoño in early 2022. Catalina and Matilde are currently facing multiple
lawsuits for reporting allegations of sexual misconduct made by eight
women against Ciro Guerra, one of Latin America’s most famous film
directors.
Their commitment to feminist perspectives means that, on their website,
you can find articles on the rising Colombian singer Lido Pimienta, on
friendships, love and sex, on political protest, and on sexual and
reproductive rights. You can also find an interview with the Colombian
journalist Jineth Bedoya, who talks about how she was kidnapped, raped
and tortured by paramilitaries while doing her job, and how she has since
fought for justice, setting a landmark human rights precedent on the
protection and rights of women journalists. Volcánicas, their website, also
carries out investigative journalism into allegations of sexual impropriety.
Volcánicas was born from the debris of sexual harassment allegations
which blew up the media outlet where Catalina used to work. That journal,
which was based in Guatemala, promoted itself as a feminist organisation
but was far from it. The founder was accused of sexual harassment, which
Catalina later reported on—risking her personal safety and her financial
security. But, as she recognises, Catalina was privileged enough to be
married to someone with a stable job, so she could take that risk. And she
did not live in Guatemala at the time.
Catalina published her article about her former boss in 2020, and the
fallout was immense: the journal was shut down, international funders
pulled out and her former boss’s wife left him. She was concerned he might
sue her, but he didn’t. After her publication of the article online, Catalina
and Matilde decided to start their own feminist-led news site—Volcánicas
—and to prioritise feminist reporting, including on public-interest stories on
gender-based violence.
Reporting on gender-based violence and sexual assault is extremely
difficult in Latin American countries. Most outlets will not publish
allegations without a verdict against the alleged perpetrator, because to do
otherwise could open them up to liability for defamation, including criminal
defamation. But prosecution and conviction rates for these crimes are
extremely low, and this means only a fraction of the stories about sexual
abuse cases are ever reported. There are many women and girls who
experience sexual violence but never see justice, and they can never speak
publicly about what happened to them. And this matters: we know that
media reporting about sexual abuse encourages more women to come
forward and report to police and to family. It also raises awareness and
sparks protests about gender-based violence, and forces policy change.
Volcánicas saw that they could change this culture of reporting, or lack
thereof—even though they were at risk of being sued. But both Catalina and
Matilde felt it was important to tell the stories of women who chose not to
go to the police—because they felt it would be hopeless if they did—and
who just wanted the abuse to stop. As Matilde told us, the ‘main goal’ for
these women ‘in making their stories public was that they didn’t want him
to abuse and harass women again. The only thing they want is for their
abuser to stop abusing. They didn’t want him to go to jail, they didn’t want
money, they just wanted it to stop.’
On 24 June 2020, Volcánicas published allegations about Ciro Guerra, an
Oscar-winning director. They named him in an article reporting accusations
from eight different women of alleged sexual assault and abuse—all of
which he vehemently denies. Guerra responded by launching a series of
lawsuits against Volcánicas. He also launched a PR campaign that
represented him as a loving father and husband, with statements of support
from powerful industry figures.
In May 2021, the journalists published another article about Guerra, this
time about the various lawsuits he had taken against them, accusing the
director of ‘a strategy of judicial harassment against them’. He had sued
them in a civil claim for the equivalent of US$1 million, and initiated
criminal defamation proceedings and a number of other legal actions
against both journalists. In total, they have faced at least five different
lawsuits so far for publishing the allegations.
As a small, new and independent media organisation, Volcánicas didn’t
have the money to defend the legal actions, so Catalina and Matilde had to
find pro bono support from lawyers. The cases, which are ongoing, take up
their time and expose them to massive risks: if they lose, Guerra could
bankrupt them both. But they aren’t backing down. The articles remain
online, and the journalists stand by the women making the accusations and
affirm their belief that there is clear public interest in publishing the stories.
The physical and mental toll that it takes to publish such accusations and
handle the legal consequences that follow are clear. ‘It has been very hard
for our body and our minds. It’s very scary,’ they told us. Matilde said: ‘I
didn’t anticipate how bad it would be—journalists being sued is portrayed
as a brave and courageous thing, it feeds ego and, as a journalist, it’s seen as
brave; when I thought about the possibility of being sued, I didn’t think it
would be so traumatising and make me feel so economically unsafe and
physically unsafe and that I would become so depressed that I couldn’t
work anymore.’
Guerra filed and obtained a ruling from a court in Colombia that
Volcánicas had to correct its article by adding more information. The
journalists responded by adding not only further information, but also more
allegations against the director.
Despite intense pressure, they have maintained source anonymity; they
know that if they revealed the names of the women who accused Guerra,
the women would face an onslaught in the media. In many other countries,
there are laws designed to protect the identity of these women and their
anonymity. But in Colombia, there is no such protection: it is completely
legal for other media outlets to plaster their names and faces across their
front covers, opening these alleged victims up to personal attacks and to the
possibility of more violence. By refusing to identify them—even to police
—the journalists are protecting these women.
Media Defence, an NGO, has emphasised how Volcánicas is insisting on
source protection and maintaining the confidentiality of its sources, as
journalistic ethics require. It is an important aspect of the right to free
speech that journalists are not forced to reveal their sources. Media Defence
is supporting the journalists’ legal defence to ensure that journalists
reporting on matters of public interest don’t face legal actions for
defamation for reporting on these stories or suits that seek to force them to
reveal their sources.
Talking to Catalina and Matilde, it’s hard not to be struck by their passion
for feminist journalism and their desire to make the world a more equal
place. The David and Goliath nature of their legal fight is clear. Here are
two young women, who can’t afford legal fees, facing multiple legal actions
—civil and criminal—for publishing allegations of misconduct by a
powerful industry figure, who is using the law to protect his reputation. We
see these competing legal interests time and time again in cases around the
world: his right to privacy and reputation versus her right to free speech.
In 2021, the national Colombian weekly magazine Semana published a
story under the headline ‘Strategy of Intimidation and Abuse’. It detailed
how the organisation FLIP (Fundación para la Libertad de Prensa), a
leading free-speech organisation in Colombia, has argued that Guerra’s civil
demand for nearly US$1 million is so disproportionate that it amounts to
judicial harassment of the Volcánicas journalists. FLIP explained that these
types of cases against journalists chill publication on public-interest
matters, leading to self-censorship. They also accused Guerra of trying to
achieve censorship by not only suing for money, but also seeking an order
that the journalists can never again print anything about Guerra, whatever
the subject matter.
Catalina and Matilde’s case is now going to the Constitutional Court in
Colombia. It will ultimately decide whether their right to free speech has
been violated. The journalists and their lawyers are hopeful, since
Colombia’s court has in recent years had some of the most advanced
jurisprudence on free speech.
Ana Bejarano, one of Catalina and Matilde’s lawyers, is one of
Colombia’s leading free-speech lawyers. She explained to us that while the
Constitutional Court has not yet decided a case about journalists reporting
on gender-based violence, it has decided a number of cases involving the
rights of women to speak out about their own abuse. The court has
considered the balance between her right to speak and his right to reputation
and has decided in favour of free-speech rights, explicitly stating that a
woman’s right to live a life free from violence informs that right and
outweighs his rights to honour and privacy. It remains to be seen whether
the court will follow its previous reasoning in Catalina and Matilde’s case.
Catalina and Matilde’s battle underlines how it’s not just the women who
speak out about their own sexual abuse and gender-based violence who face
risks—so do the journalists who report these facts. In May 2022, an
international free speech organisation, Article 19, published a report that we
wrote following interviews with leading free-speech and women’s rights
experts around the world. The picture for journalists and social media
communicators is grim. They are frequently targeted and face a range of
security risks, from murder, death threats and sexual violence to online
targeting and hacking. Women journalists often face a specifically
misogynistic form of online abuse. A similar pattern was observed in
research in countries from Bangladesh, Sri Lanka and Nepal to Brazil, Chile
and Paraguay. Women journalists require greater protection and enhanced
security measures for the work that they do. And criminal and civil
defamation laws are just one problem—increasingly, women are being
targeted through the use of cyber-security and cyber-harassment laws. But
they are also facing laws specifically designed to silence them.
In early 2022 we spoke with Galina Arapova, a leading Russian human
rights lawyer and director of the Mass Media Defence Centre. She told us
how the Russian government is using draconian laws designed to
criminalise espionage, and a mechanism called ‘foreign agent designation’
to silence journalists and the lawyers representing them.
Journalistic freedom in Russia is facing massive issues generally, but this
is a specific issue facing women who report on gender-based violence and
sexual assault. Galina told us a chilling story about a young journalist, one
of her clients, who fled the country after investigating and publishing a
story accusing a teacher of sexual misconduct. The teacher had allegedly
harassed and abused underage students for more than twenty years at an
elite Moscow school. Yulia Lukyanova, a brilliant young Russian
investigative journalist, published the story in news outlet Proekt, which
was famous for reporting on high-level corruption in Russia, and the
teacher was fired from the Kolmogorov Boarding School. In a familiar
pattern we see around the world, Yulia was then sued in a civil court for
defamation. She was also threatened with criminal defamation proceedings
by the teacher’s lawyer during the court proceedings. Yulia has since won
this case at first instance, which Galina explained was a very important
victory. But she is unsure if the case will be appealed. The story is still not
over, she told us.
For Yulia, it got worse. On 15 July 2021, the Russian authorities
suddenly banned Proekt and classified its staff, including Yulia, as foreign
agents. That designation not only silences Yulia’s reporting in Russia, but it
makes it more difficult for Galina and her colleagues at the Mass Media
Defence Center to defend her in the civil defamation case.
Galina told us that most of the journalists on the government’s list of
‘foreign agents’ are women journalists, who are increasingly being
pressured to keep silent. The Proekt website was blocked; dissemination of
the information on it is now banned. There are ‘different levels of silencing
that operate in Russia’, Galina explained, and this action against Proekt and
Yulia was ‘full silence’. Not only is Yulia having to fight the defamation
case, she also now has to fight her designation as a foreign agent. That
designation not only silences Yulia’s reporting in Russia, but it is also now
more difficult for Galina to defend Yulia in the defamation cases. It is a case
of silencing upon silencing.
It would soon become worse for Galina too. Days after a Russian
journalist was awarded the Nobel Peace Prize in 2021 for the risks he faced
for doing his job, Galina became the first lawyer in Russia to be designated
as a foreign agent. She explained to us that the designation means that
before she gives a lecture or speaks in public, and even before she posts
something on Facebook—whether it is work-related or personal, and even if
it is as trivial as a post about a restaurant she has just been to—she has to
state, in pro-forma language provided by the Russian government, that she
has been designated as a foreign agent.
Galina has since lost her job as a lecturer and faces stigmatisation and
discrimination. The designation also means she faces onerous reporting
requirements and state surveillance of her expenses and bank accounts. It
has hampered her ability to defend Yulia and her other journalist clients
who are fighting the same designation. The government is silencing Galina
for her work defending free speech. Her life and livelihood are in danger
simply because she is standing up for human rights and journalistic
freedoms.
We spoke to Galina in January 2022, just before Russia invaded Ukraine.
She told us then that she was seriously worried for her own safety, and for
the safety of others who were working for human rights, including free
speech, in Russia. The outbreak of the war has undoubtedly made the
situation for journalists in Russia even worse, with new laws having passed
that criminalise journalists for reporting the truth about the war, about
Russian opposition to the war, and about war crimes by the Russian forces.
Not long after we spoke with Galina, she was forced into exile.
Our conversation with Galina Arapova was an important reminder of
how free speech is the cornerstone of a democratic society, and just how
central it is to all our rights, including the right to live a life free from
violence. Reclaiming free speech—and reclaiming feminist politics on free
speech—is therefore an essential aspect of holding governments to account,
and of ensuring our right to live in peace and free from violence. As the
writer and feminist Audre Lorde says, we have to be able to transform
silence into action.

Silencing the silence-breakers

At the heart of the MeToo movement has been a willingness by women to

break their silence. Silence is a powerful weapon that protects and enables
abusers. But breaking silence still comes at a very real cost—which can
include facing defamation lawsuits and public backlash and abuse. Both are
powerful and effective ways of silencing women, which is why so many of
us are fighting for change.
One story that has moved us both, and that shows how both these
silencing methods play out, is that of Shiori Ito, a woman who is fighting
for change in Japan. Shiori prefers to be known as a silence-breaker, rather
than as a rape survivor or victim, and here we share her story.

Keina’s perspective
Today, Shiori Ito is instantly recognisable in Japan; she was one of Time
magazine’s people of the year in 2020. But the first time I met her, back in
2018, it was not long after she had gone public about her allegation of rape.
She was living in London, having been subjected to horrendous abuse in
Japan after speaking out about her experiences.
When Jen and I discussed writing this book together, Shiori immediately
came to mind as someone who has been changing the national conversation
in Japan. I’m Japanese-Irish, and spent some of my childhood living in
Tokyo. I go back to see my family there every year. I’ve always been
fascinated at how the outside world views Japan as a progressive, techno-
capitalist Asian country, full of pikachus and kawaii or ‘cute’ culture. But
the idea of Japan as a ‘progressive’ country should be more nuanced.
Japan still has the death penalty and carries out executions. According to
the global Gender Equality Index 2021, Japan ranked 120th in the world,
which makes it one of the lowest-ranked countries in the Asia-Pacific
region (only ranking higher than Papua New Guinea and Vanuatu). By way
of comparison, Ireland, my other country of nationality, ranks ninth; Spain,
where I live now, ranks fourteenth; the United Kingdom, where Jen and I
work, is 23rd; and Australia is 50th. In other words, Japan’s track record on
gender equality is abysmal. Of course, there is incredible activism and
organising by feminists within Japan, and Japan has a surprisingly good
record in appointing Japanese candidates to CEDAW. But Japanese women
are subject to stereotyping and are more limited in their opportunities to
participate in public life than women in most Western countries.
This is why Shiori Ito is such a hero of mine. She is breaking down
barriers, fighting to change laws, and advocating for a society in which
gender equality is discussed. By speaking out at a press conference about
her own experiences of reporting her allegation of assault to the police, she
forced open a conversation in a country where rape and violence against
women often goes unreported in the media. There have been only a handful
of cases in Japan where sexual violence has been discussed so widely in the
media; one was the Waseda Super Free case in the early 2000s, when an
elite university social club became known as a ‘rape club’ after members of
the group were convicted of raping three women. But Shiori is the first
woman I have seen come forward in Japan and speak on her own terms
about the need for justice for her experiences of alleged abuse and assault.
But for daring to speak out, she has paid a high cost.
I first met Shiori Ito at the offices of the Centre for Women’s Justice in
London, where we were gathered to discuss law reforms for sexual offences
in Japan. The Centre for Women’s Justice is led by the formidable human
rights lawyer Harriet Wistrich. She founded Justice for Women, a law-
reform group, and has specialised in fighting for justice for women who
have killed their violent partners after years of abuse.
Harriet represented Sally Challen, who was convicted of murder for
killing her controlling husband Richard; Challen later walked free after
Harriet’s intervention highlighted the impact of coercive and controlling
behaviour. Harriet and I have worked together on Fiona Broadfoot’s case.
Fiona had been in local authority care when she was groomed, pimped and
prostituted. Instead of being protected, she was prosecuted by the police and
convicted by the courts for street prostitution. The law that was meant to
protect her actually punished her, and then prevented her from getting jobs
years later, so we fought to have her criminal record—which stated she was
a ‘common prostitute’—removed.
Harriet is a feminist lawyer who is tireless in making women’s rights to
live a life free from violence and misogyny a reality. So it’s little wonder
that people from around the world ask for her advice and her perspective on
law reform. On this occasion, it was a group of Japanese lawyers,
prosecutors, psychologists and journalists, who were on a study tour to
learn from organisations in the United Kingdom about how to improve the
law in Japan on sexual offences and how to provide better victim support.
Shiori was among the expert Japanese group seeking to reform the law. I
was invited along as a half-Japanese barrister working on issues of violence
against women.
I remember Shiori clearly, as we were two of the younger members of the
group squeezed into a small conference room. Shiori has a presence that I
quickly warmed to. She speaks English with an American lilt and is the
kind of person you want to be friends with. Her eyes sparkle with
intelligence and she has a passion for justice. She handed me her business
card after the meeting, a Japanese custom, and I apologised for having
forgotten to bring mine.
In the years since I first met Shiori, a lot has happened. Shiori has since
become a symbol of Japan’s MeToo movement and has battled multiple
defamation cases, both as a claimant and as a defendant.
________
In 2013, Shiori Ito was a young journalist trying to find her way into the
news industry. She was ambitious and talented, and decided to study in
New York. It was there that she met Noriyuki Yamaguchi, the Washington
bureau chief for Tokyo Broadcasting System, a major media network.
Yamaguchi was powerful and well connected, with close ties to the
Japanese prime minister of the day, Shinzo Abe. Yamaguchi introduced her
to colleagues and she got an internship.
In 2015, Shiori met up with Yamaguchi again at a restaurant in Tokyo to
discuss a job opportunity that he had emailed her about. Five days after the
meeting, Shiori Ito went to the police and reported that, after their dinner,
she had allegedly been raped in a hotel room by Mr Yamaguchi while she
was unconscious.
Shiori asked for a female police officer at the police station. But the only
one available worked in the traffic department, so her case was handled by
male officers. The police officers made her re-enact the alleged sexual
assault, using a life-sized doll. They took pictures. She was asked again and
again whether or not she was a virgin. It was not until two years later, in
2017, that prosecutors said there was not enough evidence to bring the case.
In Japan, the definition of rape requires evidence of force or violence—
it’s not enough to show that you didn’t consent. Because Shiori told the
prosecutors she was unconscious, her rape was considered, in law, a ‘quasi-
rape’. And the prosecutors said she did not have enough evidence to
prosecute even for this lesser charge. Shiori has publicly stated that
prosecutors in charge of her case told her that because the incident occurred
behind closed doors, it was a ‘black box’. They meant the ‘truth’ of what
happened could never be known, so prosecuting the case was not
worthwhile. (Shiori would later use this term as the title of a book about her
experiences, Black Box. Yamaguchi would countersue following its
publication and, according to newspaper reports, win.)
Her hopes for a trial—and for accountability—vanished. There was no
way for her to get justice, or even to be heard. So she decided to go public.
In May 2017, she held a press conference, calling upon the police to reopen
the investigation, and bringing attention to the unjust laws and practices in
the criminal justice system. Shiori’s decision to speak out soon led to an
avalanche of media reporting and internet speculation. She was called a
North Korean spy, and many commented that her allegation was politically
motivated, since Yamaguchi was by now close friends with former prime
minister Shinzo Abe. The media also judged her for the way she dressed,
questioning whether a ‘real victim’ would have had the top button of her
shirt undone at a press conference—or given a press conference at all.
At the same time she faced this public backlash, Yamaguchi brought a
defamation claim, for an amount so high it would have bankrupted Shiori.
Instead of backing down and being silenced, Shiori decided to countersue
him for calling her a liar, arguing it was defamatory for him to allege she
was making the accusation up. This had never been attempted before in
Japan: using defamation against the alleged offender.
In 2019, Shiori Ito won damages in her civil suit against Yamaguchi, with
the court dismissing his 130 million yen defamation claim against her. The
court found that she had been ‘forced to have sex without contraception,
while in a state of unconsciousness and severe inebriation’.
In July 2022, the Japanese Supreme Court dismissed Yamaguchi’s appeal
to the civil suit and finalised the lower court’s ruling that he had sexually
assaulted Shiori. Shiori was awarded 3.3 million yen in damages
(US$24,000). The Supreme Court also made a separate ruling awarding
Yamaguchi 550,000 yen in damages (US$4000) and ordered Shiori to pay
this for claims made in her book that he might have drugged her. On 21 July
2022, Shiori gave a press conference following the Supreme Court ruling,
stating that, while sexual assault victims are finally being heard, the burden
of filing a lawsuit has been mentally and financially huge for her. The
Supreme Court judgment brings an important end to a long-running lawsuit
and vindicates Shiori’s decision to speak out.
But Shiori’s legal battles are not over. In Chapter 8, we will explain how
she is using the law to fight back against the online harassment and trolling
that she receives because she went public. She is campaigning to make the
internet a safer space for women and girls, and to reform Japan’s sexual
offences laws to be based on consent—rather than requiring victims to
prove the use of violence or intimidation, or that they were ‘incapable of
resistance’.
The trolling Shiori receives is so bad that she needs a team to go through
her social media so that she does not have to see it and take on all of the
trauma. It is so bad that she decided to live outside of Japan for a while.
This is the other cost of speaking out: it’s not just the legal battles, but the
enormous personal and financial pressures that come from advocating for
change and for women to be able to live lives free from violence.
 As we were discussing the similarities of the arguments made about ‘real
victims’ in court cases around the world, Shiori said simply, ‘Different legal
systems, same story.’ That perfectly sums up the problem, and the pattern
we are seeing around the world. Like us, Shiori wants to solve it by
changing and improving the law.

Breaking the silence

The law as it stands is silencing the voices of victims and survivors. Some
of these laws were designed to protect women, but in practice they have
often ended up protecting perpetrators by silencing victims who want to
speak out. Some of these laws censor or ban certain speech—or ban speech
from certain individuals. Others result in a less direct form of silencing, but
with similar effect, making journalists fearful of reporting allegations
because of the risk of lawsuits, which are expensive and can result in
bankruptcy or even prison.
This global picture of silencing—especially in how it undermines
women’s rights and the right to be free from violence—underlines why it is
so important to defend free speech as a women’s right and as an equality
issue. We must ensure that journalists can do their work and report abuse,
that domestic violence shelters can raise money and campaign, and that
silence-breakers can speak out, inspire other women to come forward, and
advocate for changes in the legal system. We need to free her speech and
end gendered censorship.
 Chapter 3

WHAT HAPPENS WHEN WOMEN

SPEAK?

Women had been speaking about sexual assault and violence long before
MeToo—it was just mostly behind closed doors or in whispers. They might
pull a new colleague aside, whispering the names of men she should ‘watch
out’ for. Maybe they would be waiting in line for the bathroom, quietly
talking about what they’d heard about how a guy at the party treated one of
their friends. Maybe it would be in the form of a joke—the kind of joke that
has the sting of truth underneath.
Far from being rumours designed to ruin reputations, this ‘whisper
network’ existed for one main reason: protection. It was a way women
could protect themselves and other women. It was especially important
when the men in question were in positions of power—when speaking in
more than a whisper might have serious personal and professional
consequences for her—and went far beyond not being believed. But it was
imperfect and inefficient, and it did not address the root of the problem—or
provide a meaningful mechanism of justice for survivors. That’s where
MeToo came in.
In a lot of ways, MeToo brought the whisper network into the public
sphere. These whispers were no longer whispers, they were statements
made out loud, and on the record. MeToo recognised that while whispering
might have protected some women, it also protected the men and the
institutions that sheltered them.
 The MeToo movement took off in the United States and around the
world. There was a clear message for men who were used to being
protected by silence: women were speaking. And they were being heard. A
new form of justice began to take shape. We saw how just one woman
having the courage to speak out could encourage so many others to come
forward. We saw even powerful men held accountable—and prosecuted.
We saw how, together, women speaking out could spark protests, and legal
and political change.
But in making violence against women more visible, the MeToo
movement also made more visible the cultural and legal obstacles women
face when they speak out. This is what had maintained the status quo of
silence for so long. In the backlash, we saw these same cultural and legal
tools being used to reassert that status quo—to silence the women who
spoke out, and deter anyone else who might be thinking of speaking out in
the future.
In this chapter, we look at the MeToo movement in Australia—how it
started and what happened when women spoke out—as a case study to
show the intersectional, cultural and legal issues that women come up
against in their efforts to seek justice and create change.
When the movement kicked off in Australia in 2017, the legal backlash
was swift: defamation claims and threats rained down on women and the
media who reported their stories. Many mused about whether the law had
killed the movement. That oversimplification ignored the complex cultural
reasons in Australia—established as a penal colony, with an ambivalent
relationship to its own racism, and renowned for its sexism—that meant the
MeToo movement didn’t catch on in the same way as it did in other
countries. But a few years later, a group of young women started to stand up
and say—again—enough. Their stories came together to spark a national
controversy and protest movement in 2021, which shifted public discourse
and political space and started to force change.

MeToo and the Australian media

Soon after Hollywood adopted and amplified the MeToo movement, social
media in Australia was set alight. And from the fire that was starting to
burn, one Australian figure promised to bring the same reckoning as
Weinstein faced to Australian shores: journalist Tracey Spicer. She called
for women to come forward with their stories, promising to read and
respond to every single one. Soon, she was overwhelmed. Spicer has said
that more than 2500 women reached out to her with their stories of sexual
abuse and harassment.
The first big MeToo story in Australia—prompted by disclosures made to
Spicer, and published by The Sydney Morning Herald and the ABC in
November 2017—reported multiple allegations of sexual harassment
against the gardening TV personality Don Burke. Burke denied the
allegations and called it a witch-hunt. But in a later case against him, which
we discuss in Chapter 8, his denials were found to be ‘implausible’.
Media organisations suddenly clamoured for more MeToo stories, and
others soon followed: about former Neighbours star Craig McLachlan, and
the Oscar-winning actor Geoffrey Rush. Both men sued for defamation:
McLachlan sued the media and Christie Whelan Browne, the woman who
had made the allegations. He would withdraw his case in 2022, but only
after the trial had started and $2–3 million in costs had been incurred. Rush
sued Sydney newspaper The Daily Telegraph and won (we discuss both
cases in Chapter 6).
Even women who hadn’t wanted their story to be made public faced
defamation cases and threats. A troubling aspect of the early days of MeToo
in Australia was the number of women who became the subject of media
reporting without their consent, including for the political objectives of
men.
The Daily Telegraph story on Rush had itself been rushed: the matter was
reported without ever seeking comment from the woman at the centre of it,
Eryn Jean Norvill. She had made a confidential sexual harassment
complaint at the Sydney Theatre Company and never intended for it to be
public. But it ended up on the front page and in court.
Under the cover of parliamentary privilege, a NSW government minister
outed his political opponent, opposition leader Luke Foley, alleging he had
sexually harassed a journalist. That journalist, ABC reporter Ashleigh
Raper, had chosen not to complain about the incident and never wanted it to
become public. She said she had feared she might lose her job, and worried
about the publicity and the pressure she and her family would face. But her
choice was taken from her. After her story was ‘outed’ in parliament, she
decided to tell it herself. Foley denied her allegations and threatened to sue
the ABC for defamation for having published her story.
Catherine Marriott had made a confidential internal complaint to the
National Party against the former party leader and deputy prime minister
Barnaby Joyce over an incident of alleged sexual harassment at an official
event. It was leaked and she became front-page news. She said the publicity
was ‘horrific’. Joyce said her allegations were ‘spurious and defamatory’
(i.e. she lied), questioned why it took her a year to report it and claimed ‘it
should have been dealt with immediately’; he said she should report it to the
police so he could defend himself.
How many women will report sexual harassment—even confidentially—
if it might end up on the front page of the newspaper and they are
threatened with defamation? Incidents like these did not empower women
to report or speak out, and only exacerbated mistrust. Women must be
allowed full agency over whether or not they speak out about their
experience—and the media should always seek their consent before
reporting it and before naming them.
At the same time, all of these defamation threats fuelled commentary that
Australia’s defamation laws were stifling the movement, deterring women
from speaking out and stopping the media from reporting on it. The
backlash was not just legal—and it was directed at those speaking out and
the journalists reporting on it: Spicer said she received death threats and
vicious online abuse for her work exposing sexual misconduct. Christie
Whelan Browne, who spoke out about McLachlan, received an avalanche
of online abuse, including comments like ‘hope she gets raped’.
Spicer spoke about being swamped and said she was, understandably,
unable to handle all of the disclosures on her own. She co-founded NOW,
an organisation which was meant to be the Australian answer to TimesUp.
It promised a triage service to help women who wanted to speak out: it
would direct survivors to journalists and the legal support and counselling
they needed. She told BuzzFeed that she started NOW ‘after it became clear
our defamation laws were severely restricting the movement’ and
‘protect[ing] the rich and powerful’.
Then came the magazine cover. Latte, a women’s business magazine,
featured the headline ‘Tracey Spicer and the women dismantling
discrimination’. As Jess Hill writes, it showed ‘Spicer, strong and defiant, at
the centre of a circle of mostly white women in power suits’. This was the
image that would come to define the movement in Australia but it also drew
criticism. As Laura La Rosa, a Darug woman, feminist writer and critic,
wrote, the movement was ‘glaringly white and middle-class in its
representation’.
Soon after the magazine cover incident, Spicer would step back from her
work with NOW ‘to allow more diverse voices into the space and to look
after her mental health’. She was later awarded the Sydney Peace Prize in
2019, together with the US founder of MeToo, Tarana Burke, for her work
spearheading award-winning investigations into sexual abuse and
harassment. In accepting the prize, Spicer spoke of the privilege of bearing
witness to the stories of survivors, and of the emotional burden of being
entrusted with those stories.
But the criticism and legal issues continued.
When an ABC TV documentary about Spicer, Silent No More, was
shared with journalists for media publicity prior to its broadcast in late
2019, an error was made: the program failed to blur out survivors’ names
and the details about their stories. Spicer drew criticism from survivors for
identifying them without their consent, and many took to social media to
complain about her handling of their personal information. Having
criticised the use of defamation laws to silence survivors, Spicer herself
threatened to sue survivors and others for criticising her over the privacy
breach—an irony that did not go unnoticed after her earlier critique of
defamation laws. The ABC issued an apology for its error and the breach of
privacy in identifying survivors. By June 2020, NOW had been dissolved.
Around this time, many began to think the Australian MeToo movement
was over. Dr Karen O’Connell of the University of Technology Sydney
wrote that it ‘seems to have gone quiet’, and high-profile cases (such as
those involving Burke, McLachlan, Joyce and Foley) had ‘mostly faded
from public view’. As O’Connell observed, while all were alleged sexual
harassment cases, none of the women had claimed or received any remedy
under sexual harassment laws. Instead, she wrote, ‘what most of these cases
have in common is that the men involved have sued or threatened to sue for
defamation . . . [and] may lead someone who has experienced sexual
harassment to think that the reputational interests of the accused are better
protected by law than those alleging harassment’. And if not better
protected by the law, they are certainly better remunerated for it: as she
explained, damages for defamation claims over allegations of sexual
harassment far exceed the amounts women would ever receive in damages
in claims for suffering sexual harassment.
So what went wrong? Was it our defamation laws? As detailed by
journalist Jess Hill in her Quarterly Essay, the problem with trying to
reproduce the MeToo movement in a different context became apparent
very quickly. The early days of MeToo in Australia were characterised by
its spotlight on the experiences of white, middle-class women—which left
women of colour, working-class women and queer folks out of the
conversation altogether. This lack of intersectionality matters: in media
coverage and the public conversation in Australia.
But the next wave of the movement was about to break. At the forefront
was Dhanya Mani whose fight to be heard spurred her into action—for
herself and for all women, including women of colour. But was Australia
ready to listen?

Dhanya’s story
I joined the Liberal Party when I was 17. When I began attending
social events, I was given a list of the men I should avoid due to their
lengthy records of sexual harassment. When I asked whether these
serial offenders had ever been reprimanded, I was laughed off. I was
told these men were ‘good guys’ but this was ‘just how they were’ and
so I should be aware.

These are the words Dhanya Mani wrote in an essay for Women’s Agenda in
2019. The child of first-generation migrants, a Liberal Party member and
survivor-advocate, Dhanya told us that she experienced sexual harassment
and assault by a fellow political staffer while working in the NSW
Parliament in 2014, when she was just 21. For years, her internal
complaints had gone nowhere. As a result, she left politics to pursue her
career in law and landed a prestigious job as a judge’s associate on the
NSW Supreme Court. But while working there, she says she faced sexual
harassment from one of the most powerful men in the legal profession:
former High Court justice, Dyson Heydon AC QC. She said it happened
several times and in the court building. It was 2018 and two years before
the Sydney Morning Herald’s explosive ‘Dirty Dyson’ exposé about how a
culture of silence had protected Heydon when he sexually harassed a
succession of young women lawyers who worked for him on Australia’s
highest court. And it was two years before Australia’s first woman Chief
Justice, Susan Kiefel AC, apologised to six women after an independent
inquiry found they had been sexually harassed by Heydon. (Heydon
‘categorically’ denied the allegations.) So Dhanya didn’t know then that it
had happened to others: the women were still in silos of silence. She
reported it to the judge she was working for, but nothing was done. ‘I felt
there was nowhere else to go. I had left politics because of the sexual
assault. I went into the law, then I faced sexual harassment from someone
who was revered . . . I just thought, that’s it, if I confront him, I am done, if
I don’t confront him, I am done. My boss idolises him, all the judges in the
equity division are mates with him . . . This is why I reached out to
[Spicer].’ The MeToo movement gave her the confidence to speak out.
Encouraged by Spicer’s willingness to take on men in power and NOW’s
promised nonpartisan approach, she contacted the journalist.
Months passed and she received no reply.
‘I felt like I was suffocating,’ Dhanya told us. ‘I had nothing left. It didn’t
matter how much I had overcome odds to be there [in the law] and it was all
for nothing. I thought there must be some way to get justice . . . and it’s
speaking out. And then nothing . . . if Spicer didn’t want my story, when she
was asking for people to speak to her, who else would?’
After a lot of self-reflection, Dhanya chose to tell her own story—in her
own words and on her own terms—or at least, part of it. ‘I knew how to
write it in a way where I couldn’t be sued. I could achieve what mattered to
me on an emotional level,’ she told us. She wrote the essay for Women’s
Agenda about her experience of the culture within the Liberal Party and the
failure to properly deal with her complaint about the sexual harassment and
assault she had experienced in politics. Having been warned that her
credibility would be attacked if she spoke out before the state election, she
deliberately waited to publish on the day after the election—and the Liberal
government was returned to power. Pre-empting predictable attacks,
Dhanya didn’t want her allegations to be dismissed as politically motivated
to damage the government’s re-election. In her essay, she explained the
victim-blaming culture she saw, observing negative comments about
women who had raised complaints, such as ‘she was drunk’, ‘desperate’,
‘easy’, ‘ambitious’ or ‘asking for it’. When Dhanya raised her own
complaint, it went nowhere and she was deemed a troublemaker. Various
MPs and political staffers asked her questions like, ‘Oh, I feel sorry for him
—why don’t you just date him?’ and ‘Are you sure you didn’t lead him
on?’ and ‘You do realise you could ruin his life and he could lose his job,
don’t you?’ Dhanya explained how she had come to understand, from her
own experience, the gaps in legislative protection for women working in
parliament and the inadequacies in processes within both parliament and the
Liberal Party itself. Her essay advocated for engagement by the Australian
Human Rights Commission on sexual harassment in parliaments and for
better workplace protections in parliament.
It was brave to speak out about Liberal Party culture when no one else
was. Dhanya said she knew that she was sacrificing opportunities that had
been offered to her within the Liberal Party, but she felt she had ‘a moral
imperative’ to speak out. Her courage would encourage more women to
speak out.
But she didn’t tell her story about Heydon. ‘I was too scared,’ she told us.
Dhanya explained that she already felt marginalised in the law, as a woman
of colour and one of only two ethnically diverse people working on the
court. ‘I didn’t have any friends or mentors I could rely on to support me.
My parents were poor migrants. If I had spoken about my experiences, I
was going up against one of the strongest legal minds in the country—what
chance did I have? Be sued for defamation and be bankrupted? It didn’t feel
like an option to me. I would be committing career suicide and exposing
myself to bankruptcy.’ She would tell her story about Heydon in 2020,
inspired by the courage of the six women who had come forward before her
and broken the silence.
After her essay was published, Dhanya was contacted by another woman
who had her own story: Chelsey Potter. Chelsey had worked for the Liberal
Party in federal parliament and, like Dhanya, says she was sexually
assaulted by a fellow staffer. Together, they took their stories to a journalist.
Reflecting on this, Dhanya said, ‘I didn’t think anyone would care about it
if it was just me; I needed to do it with a white woman. I regret that I felt
that way, and I regret that I was actually right.’ Months after Dhanya had
first spoken out about her story, Nine Media published an ‘exclusive’ story
about sexual harassment in the Liberal Party, reporting her story (again)
along with that of Chelsey. The story made clear that, ‘[f]or legal reasons,
9News has chosen not to identify the two men, who strongly deny the
allegations’. It emphasised the fact that neither woman had chosen to report
her allegations to the police or their MP at the time. Dhanya told us that,
like many women, she didn’t go to the police because she didn’t want to
relive the trauma again. She didn’t speak out because she wanted to see him
in prison; she spoke out because she wanted the culture and processes in
parliament to change.
Suddenly, now she was not alone, there were headlines: ‘Liberal Party
rocked by allegations two young female staff were sexually assaulted’.
Dhanya and Chelsey co-founded ‘Changing Our Headline’, a network for
survivors of sexual assault and abuse that happened while they were
working in Australian politics. They aimed to create a ‘campaign and
community for survivors and allies to come together for a better political
future’, and for laws, policies and complaint mechanisms to ensure a culture
where survivors could speak out without fear—and be heard and supported.
Dhanya was the driving force behind the creation of the network and has
continued with the work since Chelsey stepped away. Motivated by her
experience with NOW, Dhanya told us she has made sure that every
survivor who contacts the network receives a response. She also created
clear policies on privacy and on how survivors’ information could be used.
Survivors who contacted her had options: they could share their story and
seek support and advice, and even if they didn’t want to speak out publicly,
they could contribute their ideas about what needed to change to inform
advocacy. ‘It was important to me to include survivor input on necessary
law reform . . . so they could be given a voice and their experience could be
utilised. I created as many pathways as possible so I could afford them
some agency, even if they didn’t want to be public.’
Disclosures of assault and sexual misconduct poured in—this time, to
Dhanya. She was contacted by women in both state and federal politics. She
reached out to Prime Minister Morrison’s office to try to seek support and
informed Morrison’s principal secretary of the ‘overwhelming’ number of
complaints she had received, including about cabinet ministers. Dhanya
says, ‘I was vulnerable and desperately attempting to seek help for myself
and other women,’ but she said he seemed more concerned about political
risk. She never heard back.
Among the many women who reached out to Dhanya for advice and
support were two women whose stories would become public—and would
send shockwaves through the halls of power and inspire more women
around Australia to speak out. [redacted text] The second was a woman
called Kate, whose allegations against the then federal attorney-general,
Christian Porter, resulted in a national controversy about accountability and
a controversial defamation case. Dhanya would later rename her campaign
Kate’s List to recognise and celebrate the life of her late friend Kate.

Kate’s story

Kate reached out to Dhanya to tell her story, more than 30 years after her
alleged rape. This is not uncommon: many women wait to come forward
with their stories, especially if the person they are accusing is powerful. By
the time Kate felt able to speak out and take action, the man she was
accusing had become very powerful: Christian Porter was the chief law
officer of Australia, and a federal cabinet minister.
The facts about her alleged rape are taken from Kate’s statements, which
are now public on the Federal Court of Australia website as part of
documents in separate legal proceedings associated with the defamation
case. They are all allegations that Porter denies vehemently.
Kate, as she was known by her friends and referred to by the ABC in the
subsequent defamation proceedings, was a promising young Australian
woman: at sixteen years old, she was intelligent, articulate, ambitious and
one of ‘the most brilliant debaters of her generation’. Her future looked
bright, with friends suggesting she would one day take high office. But after
a debating event in Sydney in 1988, Porter—a fellow debater—took her out
drinking. She claimed that he gave her a date rape drug, escorted her home,
forced her to have oral sex and then raped her after she fell asleep. Initially,
she said, she didn’t tell anyone because she was so ashamed.
Porter went on to have a brilliant career in law and politics—and was
even tipped as a future prime minister. Meanwhile, the bright career Kate’s
friends had predicted for her had not yet come to be—though she still had
plans and aspirations. Mental health issues surfaced. Kate was later
diagnosed with bipolar disorder, and eventually sought counselling from a
sexual assault counsellor in 2013. She had never told anyone about what
happened to her, but after the counselling she decided to tell her friends,
including those who had been on her debating team at the time of the
alleged rape. They believed her.
 Kate later reached out to Dhanya’s organisation for support. They soon
became friends and were in almost daily contact. Before getting into the
story, Dhanya pauses to provide important context to Kate’s story: ‘One of
the greatest failures of the MeToo discussion in Australia has been the
singular focus on younger women.’ She points out how older women, like
Kate, ‘have more to lose in speaking out’ and ‘the complexity of this has
been completely left out of the narrative’. They are more advanced and
established in their careers, which makes any forced pivot harder, they have
families who will be affected, their perpetrators are also older and often in
positions of power—‘and yet, they are not a cultural priority’. For this
reason, Dhanya admired Kate’s courage in coming forward: ‘It was heart-
breaking to hear her say to me, “seeing you say these things helped me
realise I could stand up to people in politics”. I found it bizarre that I
enabled her; I looked up to her, I was half her age. We don’t really have
approachable contactable figures for anyone in that demographic, so it was
brave for her to reach out to me.’
Kate was very clear in her intentions. She wanted Porter to face trial. She
did not want to be identified until after any criminal trial and conviction.
Dhanya explains, ‘She wanted it to be a story about abuse of power, about
what survivors are put through, about the inadequacy of mental health care.
She wanted to run for parliament. She wanted to be a voice for change.’ But
things took a tragic turn. ‘Kate didn’t want it to happen the way it did,’
Dhanya says, in grief and anger.
Encouraged by her friends, and by Dhanya, Kate reported the rape to the
police in November 2019. By June 2020 the police had still not taken her
statement. Dhanya was dismayed by the police failures. Kate was
encouraged by the specialist detective who was assigned to her case in
Sydney, but repeated requests for them to travel to enable Kate’s statement
to be taken were refused. Kate had worked with a lawyer to prepare her
statement and supporting documents—all that was left was for her to meet
with police and sign it. ‘There is no good reason why her statement wasn’t
signed. There were so many options to get it done,’ says Dhanya. Dhanya
told us how this had been the cause of further upset and anxiety for Kate. ‘I
kept saying “keep the faith, it will work out”. But thinking about it all now,
maybe I should have validated her complaints about the delay with the
police—because clearly my faith was misplaced.’
 In the interim period, Kate sought further psychiatric care. Dhanya said
Kate was proactive about seeking help and encouraged Dhanya to look after
her own mental health too. She was released from care but, while waiting
for further treatment, she was isolated at home, kept apart from her family
and friends by Covid-19 restrictions. After a week of being isolated at home
alone, on 23 June 2020 she sent an email to the police to say she could not
continue with the complaint for medical and personal reasons because she
couldn’t take it anymore. The next day, she killed herself.
In the days leading up to Kate’s death, Dhanya had been busy: she had
just gone public with her story about being sexually harassed by Heydon.
But she had noticed something strange: she hadn’t heard from Kate after the
news broke and Kate didn’t respond to her messages about it. Kate had
supported Dhanya in her decision to speak out about Heydon—she would
have been the first to message or call her about it. Dhanya knew something
was wrong. She was devastated when she was told of Kate’s suicide. ‘Kate
had never wavered for a moment from her ultimate motivation to speak
about what had happened to her and to hold power to account to give other
women hope.’ Dhanya believes Kate was failed by the police and by health
services—and that this should be explored in a coronial inquest.
Kate had been believed by her friends, but the man she accused was
powerful. The police let her down. And after Kate’s death, what hope was
there for accountability?
A few months later, in November 2020, the ABC’s Four Corners
program ran an episode titled ‘Inside the Canberra Bubble’ about the
culture in parliament, featuring Porter. It painted a portrait of Porter as a
man who had a long history of misogynistic behaviour and attitudes—even
as far back as his law school days, he was ‘tipped’ as the most likely to
become prime minister, and the most likely to be dismissed for
inappropriate sexual misconduct. He had once argued in a debate that his
opposition’s arguments ‘had more holes than Snow White’s hymen’. A
barrister who knew him at law school described him as ‘deeply sexist’, and
said he had ridiculed women for how they looked. As a university law
professor, he was accused of making sexualised comments to students.
When he got to parliament, he was accused of making unwanted sexual
advances towards staffers and even received a warning from then Prime
Minister Malcolm Turnbull over his sexual relationship with a junior staffer
—despite having a wife and toddler at home.
 The program did not include Kate’s allegations about Porter. Kate’s
friends say that the ABC had originally planned to include her story in the
program—but it was cut out because of the defamation risk. Porter was
protected from any public discussion about Kate or her allegations, for now.
After the program aired, Porter said he regretted things he had said in the
past, but he denied (and continues to deny) all accusations of mistreating
women. Maybe it’s possible to look at each of the details the ABC had aired
and say they were just examples of Porter ‘joking’, or the kind of childish
sexist humour often seen from those who went to elite boys’ schools. He
wasn’t a bad guy—he was just a bit of a larrikin. And a lot of men did think
that way—including Prime Minister Scott Morrison. He said he thought
Porter’s conduct had passed ‘the pub test’, because ‘Australians understand
more about human frailty than perhaps you are giving them credit’. Boys
will be boys, as they say. Porter remained attorney-general.
Months went by after the ABC’s story about sexism and the culture of the
federal parliament. But another brave young woman would soon capture the
nation’s attention: on 25 January 2021, Grace Tame was announced as the
Australian of the Year, and gave a powerful speech about the silence that
had protected her abuser. Her words reverberated around the nation. Grace
was being recognised and celebrated for being a silence-breaker about child
abuse, and for her #LetHerSpeak campaign, which helped break the silence
for other survivors. She would encourage many more women to come
forward, [redacted text]

Brittany’s story

[redacted text]

Speaking out as a mobilising force

[redacted text] Kate’s friends decided to take action against Attorney-

General Christian Porter. On 23 February 2021, they wrote to Prime
Minister Morrison with a dossier of evidence, including a copy of the
witness statement she had prepared to report Porter to the police. Since the
police were not investigating the case after Kate’s death, they said they
wanted the matter pursued because that’s what she had wanted. Her friends
urged Morrison to undertake an inquiry:

This is a difficult issue. Victims share information in confidence and

sometimes do not want to pursue claims, at least initially. In this case,
a victim shared her story with many and begged the people to help her
seek justice. To date, defamation law and political inactivity have
adversely impacted the ability of [her] claim to be properly addressed.
The Commonwealth Attorney-General has the right to protect his
name. Given the facts of this case, we suggest that you could . . .
conduct a discrete parliamentary investigation into the matter to see
what facts could be established.

[redacted text]
Having learned about this letter, a journalist decided it was time to tell
Kate’s story. ABC journalist Louise Milligan reported the story of how the
prime minister, senators and the Australian Federal Police had been
informed of the historical allegations made by Kate about a cabinet minister
and that Kate’s friends were calling for an inquiry into the allegations. Her
stories did not name Porter. Social media was set alight with speculation—
who was the minister being accused of rape? Off the back of Milligan’s
earlier, ‘Inside the Canberra Bubble’ story, many pointed the finger at
Porter.
After widespread speculation and intense public pressure, Porter outed
himself as the subject. In his press conference, Porter vehemently denied
that the alleged rape ever happened, and said he had never been contacted
by anyone—by Kate, by the police or by the ABC—before the allegation
was published. ‘It just didn’t happen,’ he said. Porter claimed that he was
being placed in the position of having to ‘disprove something that didn’t
happen 33 years ago’.
Prime Minister Morrison praised Porter’s decision to identify himself as
the subject of the rape allegations, and his decision to take mental health
leave—‘to get support to deal with what has obviously been a traumatic
series of events’—and said he ‘looked forward’ to Porter returning to work.
Treasurer Josh Frydenberg emphasised Porter’s right to be presumed
innocent and pledged his full support. Meanwhile, the new Minister for
Defence, Peter Dutton, praised Porter as ‘a first-class act’ for naming
himself. But what about the suffering and trauma of Kate and her friends
and family? Where was the support for them? What about the trauma the
news, and the response from the prime minister and senior ministers,
triggered for survivors around the country?
Meanwhile, the media went hard on Kate’s mental health history—even
publishing her diaries. ‘She was made to look crazy,’ Dhanya said, arguing
that she wasn’t and that she had put together a credible case with her
lawyer. In his later public statement, Porter would complain about his ‘trial
by media’ and claim Kate’s allegation lacked ‘credibility’ because she was
‘unwell’ and that it was based on ‘repressed memory’—an allegation Kate’s
sexual assault counsellor had refuted. Dhanya raised concerns that because
Kate had died, she couldn’t be defamed—and couldn’t defend herself or
push back on the narrative built about her.
Women went to social media to share their stories and how triggered they
were by the high-profile rape allegations and the lack of accountability—
and support for #March4Justice swelled. The movement was started by
Janine Hendry and quickly gained 27,000 followers on Facebook. Women
across the country began to organise protests in other capital cities and
regional towns. As one sexual assault survivor, Carol Shipard, said, the
government’s response [redacted text] felt like ‘a punch in the guts’; ‘the
closing of the ranks’ by powerful men had to stop. Another organiser, Aoife
McGreal, told The Guardian, ‘I feel like every woman has a story. Whether
it’s workplace harassment, or abuse in the home, or on the street, even. It’s
time for women to speak up. I feel like it’s a time of reckoning for
Australia.’
Kate’s family supported an inquiry into the allegations she had made, and
public pressure grew. As attorney-general, Porter had ordered the inquiry
into sexual harassment allegations against former High Court judge Dyson
Heydon. Why shouldn’t an inquiry be held into Porter, many asked. But the
prime minister stood firm against any inquiry because, he said, it was a
matter for the police. Instituting an inquiry ‘would say the rule of law and
our police are not competent to deal with these issues’. As Dhanya made
clear, the police had already failed Kate. And worse: even before the prime
minister asked the nation to leave it to the police, the police themselves had
told the media that the investigation into the matter had been closed because
of ‘insufficient admissible evidence’. It would only emerge six months later,
after an internal review, that the NSW Police had never even commenced an
investigation. In fact, the police had asked to close the case the very same
day they had received the dossier of evidence with Kate’s witness
statement.
There is a common refrain in rape and sexual assault cases: if it
happened, why didn’t she go to the police? The implication is that what this
woman says cannot be true because if it were true, she would have gone to
the police immediately. And the presumption is that, if she goes to the
police, the police will do their job, and that all women must therefore take
the criminal justice route.
In Kate’s case, she had gone to the police—but she gave up in dismay
after police delays. That’s why it was so frustrating that the prime minister
said he thought it should be a matter for the police: the police had already
bungled it. And as Laura Tingle, the ABC’s chief political correspondent,
pointed out, Morrison’s position that the Porter matter should be left to the
police was ‘disingenuous at best’, because he knew full well that Kate’s
death ‘made it virtually impossible for NSW Police to investigate the case’.
Dhanya, on the other hand, rejected the proposition that Kate’s death meant
the case could not be prosecuted, pointing out that the Catholic Cardinal,
George Pell, had been prosecuted for historic sex offences in relation to two
men when they were aged thirteen, one of whom had since died (Pell’s
conviction was later overturned on appeal to the High Court). ‘Why not
Porter? It was police negligence that meant Kate’s statement had not been
signed,’ Dhanya said.
At the same time, concern was raised about Porter’s right to due process
and the presumption of innocence—and that he should not face ‘trial by
media’. ABC journalist Annabel Crabb noted that while the media was the
forum in which the allegations were being ‘thrashed out’, it was ‘the only
institution with current access to both sides of the story’, given the
incapacity of the criminal law to deal with the allegation for both people
involved: ‘In death the woman is forever denied her day in court. In life, Mr
Porter will never get his either.’
As women across Australia were preparing to march, Porter and his
lawyers were making preparations for him to get his day in court—but in a
defamation lawsuit, rather than a criminal case. His defamation claim
against the ABC and journalist Louise Milligan over Kate’s rape allegations
was filed the same day as the March4Justice protests (see Chapter 6 for
further discussion of this case). The significance of the chief law officer of
Australia filing his defamation case on the same day of protests fuelled by
women’s frustration over the government’s failure to hold him and other
alleged perpetrators to account was not lost on anyone.
If that wasn’t enough, Prime Minister Morrison took to the floor of the
House of Representatives to proclaim that it was a triumph of Australian
democracy that the women protesters outside Parliament House were not
‘met with bullets’.
The defamation claim Porter filed over the historic rape allegation—and
not the rape allegation itself—cost him his job as attorney-general: he
couldn’t oversee Australia’s defamation law reforms while suing the public
broadcaster for defamation himself. But he remained in cabinet. And while
the defamation claim cost him his job as chief law officer, it gave the prime
minister an answer to calls for a public inquiry into Kate’s allegations. The
prime minister then started saying that her rape allegations would now be
determined by a court in the defamation claim against the ABC, so it would
not be appropriate to conduct a separate inquiry. When Porter later settled
his defamation case before trial, so there would never be that day in court,
the prime minister shifted again: there would still be no public inquiry over
Kate’s allegations—and no accountability for Kate.
The March4Justice protests ended up being the largest protests seen in
Australia in years, with an estimated 110,000 people protesting in 40
different cities and regional centres to demand ‘equality, justice, respect and
an end to gendered violence’. Jen joined her local protest with her eleven-
year-old half-sister and her 85-year-old grandmother. It was her little
sister’s first ever protest and one of many for her grandmother, who had
protested for equal pay and funding for domestic violence refuges in the
1960s and ’70s. She told Jen she was ‘too old to still be out protesting about
this shit’—but there she was, joining with thousands of other women in a
massive inter-generational protest. Amid these protests, it was announced
that Kate Jenkins, the Sex Discrimination Commissioner at the Australian
Human Rights Commission, would lead an independent inquiry into the
culture of Parliament House. It was the very action that Dhanya had called
for two years earlier. The power of more women speaking out and of protest
was clear: things had to change and reform recommendations were coming.
[redacted text]
 [redacted text] Look at Dhanya Mani and the other women who spoke
out about Heydon, who have spoken of losing their passion for the law.
How many women have left politics, law—or other careers—after having
similar experiences? How many women have left careers they love after the
institution in which they worked failed to protect them from abuse or
harassment?
And how many women had to speak out and protest about this before it
would change?
Even after the protests, Porter remained in cabinet and was later
promoted to temporarily fill in as leader of the House of Representatives—a
move by Morrison that Grace Tame would call ‘a proverbial slap in the face
of our entire nation’ and ‘an insult to all survivors’ that would only
embolden perpetrators. Tame wrote that Porter’s were ‘circumstances
steeped in the protective privileges of a patriarchal parliament’ and ‘[g]iven
the seriousness of the allegations against Porter, the bare minimum test of
his fitness to hold ministerial office would be an independent inquiry’. Only
later, when it emerged that Porter had accepted $1 million in a ‘blind trust’
to fund his defamation case against the ABC, were questions raised about
the integrity of that arrangement and whether he had complied with his
code of conduct as a cabinet minister—or as an MP. Porter would later
resign from cabinet and from politics: not over the historic rape allegation,
but over the shady financial arrangement that had funded his defamation
case. He is now back in legal practice. There would be no inquiry into him
accepting funds from anonymous donors who funded his defamation case—
or into Kate’s allegations. If the man holding the highest legal office in the
country would not face accountability, who else would?
Accountability for his party would come at the ballot box. Spurred by the
events of 2021, a group of independent women, ‘the teal independents’, ran
for federal parliament to knock off Liberal Party seats. Running on
platforms of equality for women, accountability, transparency and climate,
they were elected in record numbers in 2022. Julie Bishop, former longtime
Liberal MP and foreign minister said, [redacted text] that women ‘didn’t
see [Morrison and the Liberal Party] as having any empathy for the
concerns of women’. Simon Birmingham MP pointed out the obvious:
‘What we can’t do is abandon the space on listening to women . . . We can’t
have a situation where women are voting for us in lesser numbers than
males.’ The rest of his party seemed to have forgotten: women’s votes count
in a democracy.

Chanel’s story: enabling speech to challenge rape culture

As Australia was grappling with the culture of parliament [redacted text]

another young woman was spurred into action. Chanel Contos was
motivated by her own experience—and that of too many of her friends—to
start an initiative to help young women share their stories and to show up
rape culture in Australia.
After the MeToo movement kicked off, Chanel had been away with
friends from high school when they had a conversation—similar to the
many other conversations that had quietly started in living rooms, bedrooms
and around dinner tables, in an inversion of the old ‘whisper network’. She
and her friends were sharing their experiences of sexual assault. Like so
many others, Chanel was horrified to learn that most of her friends had been
sexually assaulted—and pretty much all of them had had a ‘close call’.
Chanel told her friends about her own assault by a guy they knew. It turned
out he had done something similar to another woman a year later. Chanel
started shaking, and became very upset. She would later learn that these are
trigger symptoms—the body reliving the experience of assault.
Chanel felt it was time to do something. She started by disclosing her
assault to her brother. Then she expanded the conversation she’d had with
her close friends to others. A pattern emerged: she and many women she
knew who, like her, had attended elite girls’ schools in Sydney, had
experienced sexual violence at the hands of young men from privileged
private boys’ schools.
It wasn’t until Chanel left Australia that she could see this more clearly.
She told us that her time living and studying in the United Kingdom, among
students from around the world, helped her to understand the culture she’d
grown up in at home. She said, she had ‘never spoken to anyone who has
experienced rape culture the way me and my friends had growing up in
Sydney amongst private schools’. The problem suddenly seemed obvious to
Chanel: it wasn’t about any individual person. It was a problem of culture—
a rape culture—and the general lack of understanding about consent.
 In early 2021, Chanel decided it was time to act. She started an
anonymous Instagram survey, whereby survivors would simply say the
name of the school the perpetrator had attended. The point was not to ‘name
and shame’ perpetrators, but to get a picture of the culture from which they
came and put the onus on schools to better educate boys. She received
thousands of testimonies. Overwhelmed by the response, Chanel decided to
create a website for survivors to share their stories, so that people could
understand just how big the problem was. The powerful and well-heeled of
Sydney were glued to the screen, watching for a story that could be about
their brother or son to appear. Chanel’s efforts showed just how pervasive
sexual assault was, sparking a crisis meeting of 100 private schools.
Soon the threats started: letters from school principals, from lawyers,
saying they would sue Chanel for defamation. It didn’t matter that the boys
(some now powerful men) were not named—they would claim they were
identifiable from the anonymised details she had published. The letters and
messages kept asking: didn’t she know she might ruin the careers, and the
reputations, of these men? ‘But what about the trauma and impact on her
life?’ Chanel said, highlighting how society is often far more concerned
about his reputation in facing an allegation than about women’s suffering
and their ability to speak about it.
Chanel told us that many dismissed her project and the value of the
anonymous testimonies. She said that one prominent Australian figure had
claimed that ‘the testimonies are performative and made up’. If a woman
speaks out and tells her story in the media, she is fame-hungry; if she does
it anonymously, she is ‘performative’. It doesn’t seem to matter how
women speak out—whichever way they do will be used to attack their
credibility—which makes clear the problem isn’t how they do it, but the
fact they do it.
Meanwhile, the NSW Minister for Women, Bronnie Taylor, said the
stories were ‘extremely concerning’ and experts mused on the reason for
this ‘worrying sexual assault trend in Australian schools’.
Chanel went on to start a petition calling for better consent education in
schools, and within just three weeks it had 30,000 signatures. She founded
an organisation, Teach Us Consent, which calls for earlier and ongoing
holistic consent and sexuality education for children. Chanel wants all
young people in Australia to receive comprehensive sexual education, to
empower teenagers to identify sexual assault situations when they see them
or experience them—and to stop it before it happens. In February 2022, the
organisation achieved this goal: the federal and state governments have
agreed to provide sexual consent education for schoolchildren from age
five.
Chanel also helped NSW Police launch a campaign to inform survivors
that there is an alternative reporting option that enables them to report their
assault to police without the requirement for them to press charges
immediately—or ever—so that the police have a contemporaneous report of
the crime. Survivors can also consent to be contacted by police, or not, if
the perpetrator is reported by another woman. And she can decide whether
to pursue charges or whether she wants to support the other survivor. This
—and the profile of Chanel’s campaign about rape and sexual assault
among teenagers—has resulted in an unprecedented 60 per cent increase in
reports to police. Chanel explains that many women don’t want to see their
perpetrator in prison and just want to protect others from it happening
again. She told us:

Culture needs to change. We need to stop pretending that rapists aren’t

common and aren’t all around us, our friends, people we know—we
know the figures. Our society couldn’t function if every rapist was
sent to jail. It’s hard for women to speak up about it, so we have to
change the way we deal with that and make it easier.

Prompted by the success of Chanel’s initiative in Australia, a young

British woman, Soma Sara, reached out to Chanel. She had launched a
similar initiative, ‘Everyone’s Invited’, a movement in the United Kingdom
focused on ‘exposing rape culture through conversation, education and
support’. Encouraged by the response to her campaign in Australia, Chanel
told us that Soma began asking those posting their stories to start naming
their schools and universities to ensure the institutions could be held
accountable. By April 2021, she had 15,000 responses—a figure that has
since risen to 55,000 and has since sparked an Ofsted review.
These two award-winning campaigns have made visible the extent of
sexual violence among young people in a way that we have not seen before.
Both women created innovative campaigns and spaces to enable women
and girls to speak out about their sexual assault—without facing the legal
risks they would if they did so on their own. Their aim was to raise
awareness about rape culture in order to try to change it—and it’s working.
Their examples show the common problems, challenges and solutions that
women encounter around the world, as well as the benefits of sharing
insights and innovations across nations—and the importance of women
being able to tell their stories—to tackle violence against women.

Australia and intersectionality

We first reached out to interview Dhanya Mani in early 2022, before Prime
Minister Scott Morrison announced that he would make an ‘apology’ in the
federal parliament to women who had suffered sexual harassment in
parliament. At that time, she told us that very few journalists or
commentators had contacted her to report on her story or her work. Dhanya
feels very strongly that she has been left out of the media conversation.
Dhanya was not invited to parliament for Morrison’s speech or
acknowledged alongside the other women who had spoken out about the
culture of parliament, [redacted text] women who came to prominence
after seeking advice and support from Dhanya. Grace Tame and Chanel
Contos were invited given their important work, which was unrelated to
parliament workplace culture. ‘Somehow I had disappeared,’ Dhanya said.
On the day of Morrison’s apology, Dhanya spoke out about her erasure—
and that of all women of colour—and there was a flurry of media interest in
her story. It started an important and much-needed conversation about the
visibility and recognition of women of colour in Australia. A few days later,
Greens senator Larissa Waters read Dhanya’s words in her speech to the
Senate: ‘I will not stop until skin colour and minority status do not
determine whether we are acknowledged, whether we are recognised by
politicians and the media, and whether cultural and historic milestones built
on our advocacy and labour belong to us.’
What we didn’t realise until we met her was just how hard and how long
Dhanya had been fighting to be heard and seen. She had been fighting for
visibility—a fight that continues.
When Dhanya first raised her complaint in the NSW Parliament she said
she was ‘gaslit and ignored’. She was the first to speak out about her
experience in the Liberal Party and the person who established an
organisation that encouraged and supported so many other women to come
forward and made recommendations for reform. It took years—and more
white women—to speak out before anyone really listened.
[redacted text] Her work was not acknowledged in the federal apology
either. Even after all the media controversy that followed, when the new
NSW premier, Dominic Perrottet, apologised to Dhanya in state parliament
this year, it barely got a mention in the Australian media.
‘How many more women might have come forward earlier if I had only
been white?’ Dhanya asks. Even now, Dhanya says she hasn’t been offered
the support or opportunities offered to the other young women who came to
prominence for speaking out, [redacted text] the mentorship, institutional
support, employment or funding opportunities. All three women have book
deals; at the time of writing, Dhanya does not. The problem is structural. As
Dhanya told us:

The media landscape hasn’t changed and the work of women of colour
has not been recognised or credited . . . The absence of this has limited
the conversation in Australia, and until and unless we have voices in
the media acknowledge their bias and the mistakes that have been
made, it will not open up space for conversations about how people of
colour are treated . . . there is an empathy gap. There is a particular
difficulty in finding resonance if you are not white or if you are First
Nations. I think that is why it’s hard for our stories to take off.

As author Sisonke Msimang wrote for The Guardian in 2022, people like
Grace Tame represent the ‘acceptable’ white faces of Australian feminism.
Msimang makes very clear how much she admires both women—and how
she struggled to find a way to express in her critique about how Black
women are not ‘greeted with the same kind of public solidarity or
sympathy’ they receive. Msimang writes how, in Australia, ‘a narrative
emerge[d] of white women as fighters, as eloquent challengers of the status
quo, as upholders of the feminist legacy with little to no reference to Black
women who have been doing this for years.’ Perhaps it is as simple as Scott
Morrison said: these are the faces of the daughters of Australia’s most
powerful men.
 Msimang rightly points out that Black women have always been at the
forefront of struggles for equality and justice in Australia. ‘There is no
reckoning for Australian women if the media and the public aren’t able to
listen and relate to the stories of Aboriginal women, women in hijab,
women whose skin is far “too” dark, and women who live on the wrong
side of town; who can’t go to university and who will never report from
parliament or file stories in newsrooms.’
In an essay in 2018, Amy McQuire—a Darumbal and South Sea Islander
journalist—wrote about how ‘white liberal feminism . . . finds the loudest
voice in mainstream media,’ while the deaths of Aboriginal women are
found in footnotes. Violence against First Nations women has not sparked
nationwide protests of women, but it should. As McQuire writes, the issue
isn’t that First Nations women are ‘silent’: ‘Aboriginal women have been
talking about violence for decades—the “silence” is not the issue. It is that
no one listens unless it is spoken in a way that bypasses the role of white
Australia, and places blame right back onto Aboriginal people themselves.’
A feminism rooted in racism, colonial violence and ableism is not really
feminist at all. Activism rooted in a deep and meaningful appreciation of
intersectionality is the work that needs to happen to bring about meaningful
change, change that ensures the voices and stories of women of colour are
not erased or silenced. ‘There is so much injustice in this country,’ said
Dhanya. ‘But we are where we are today . . . We need more white people
talking about this and to showcase white women and women of colour
working together and creating positive and mutually affirming
relationships.’
Women are—and have been—speaking. We all need to ask: who will do
the work of listening to and amplifying what they say to push for real
change? All of us have a responsibility to ensure that all women are heard,
and that we are not complicit in the silencing.

When speaking out [redacted text] becomes contempt

[redacted text]

Turning silence into action for change

Women telling their stories is powerful. When the whisper network in
Australia became public, it lit a fire that burned all the way through the
halls of power.
One woman speaking helps give others the courage to speak. But we also
need to acknowledge the extreme personal and professional costs each of
these women accrue for their courage—and the legal risks they face. And
while women should speak if they want to, the burden placed on them to
enter the spotlight is not fair—and must change.
It has been encouraging to see the law reform, activism and change that
has been sparked by these stories. It could only happen once women were
given a platform to speak. And there is still a long way to go.
These stories show how cultural and legal obstacles come up when
women speak—and can have the effect of silencing. We need to
acknowledge the role of the law in silencing women and maintaining
cultures of silence. And we need to think about how these laws might need
to change if we are serious about allowing women to speak. And it’s not
just about protecting women: it’s about creating a system of justice that puts
survivors at the centre—and recognises their right to speak.
Chapter 4
 HER GUIDEBOOK TO HIS
PLAYBOOK

On 27 March 2022, The Sunday Times published an explosive piece about

Charlie Elphicke, the former Tory government minister who was jailed for
sex offences in the United Kingdom. ‘Elphicke had spent four years suing
The Sunday Times for revealing a woman accused him of rape [and] used
British libel law to silence her and prolong her pain,’ explained Gabriel
Pogrund, the journalist who broke the story.
In 2017, a young parliamentary worker in her twenties went to the police
to report that she had been raped by her then boss, Elphicke—an MP,
former government minister, lawyer and married father of two. She was
scared and worried that she would not be believed. According to the
newspaper, this woman, to whom it referred as ‘Jane’, approached The
Sunday Times in 2018 after the police failed to carry out an investigation.
By then, Elphicke was already under investigation for allegations of sexual
assault by two other women, a nanny and a parliamentary staffer. But The
Sunday Times published another story: Jane had accused him of rape and
the police had failed to investigate.
Elphicke sued, alleging The Sunday Times had published ‘serious
untruths’. The disgraced former MP was able to use libel and privacy laws
to suppress any further reporting of the allegations. It wasn’t until 2022,
after Elphicke was convicted of sex offences and withdrew his legal claims,
that The Sunday Times revealed for the first time the long and expensive
legal battle it had faced for publishing Jane’s story. In Elphicke’s criminal
trial, the sentencing judge had described him as ‘a sexual predator who used
. . . success and respectability as a cover’. But The Sunday Times’ story
showed how he had also ‘used his power, and the law, to protect himself’.
According to The Sunday Times, Elphicke hired Carter-Ruck, a law firm
it described as being ‘notorious for aggressively defending oligarch clients’.
The Sunday Times’ journalist explained that Jane’s story ‘never entered
public discourse’ because other media outlets were too scared to print the
allegations in case they were also sued. Pia Sarma, the head of legal for
Times Newspapers Limited later explained that it spent an estimated
£600,000 defending the publication: defending Jane’s truth and the public
interest in reporting her story.
The Sunday Times exposé came amid public outcry in the United
Kingdom about a slew of high-profile defamation claims, including those
brought by Russian oligarchs against journalists and authors, and sparked a
nationwide debate about how the rich and powerful are using and abusing
libel law to suppress free speech and avoid scrutiny for wrongdoing. When
we spoke to Pia she explained that stories about sexual misconduct are
particularly vulnerable to libel suits and notoriously difficult to print:

It takes courage on part of the complainant and warmth and tenacity

on part of the journalists, and commitment and resources on part of the
newspaper. The organisations that have the time and commitment
usually don’t have resources and they are vulnerable to libel actions.
The knock-on effect is chilling free speech and the right of women’s
voices to be heard. Women are coming to the media instead of the
police so that other women are warned.

In this chapter, we explain the set of strategies used by rich and powerful
men to silence women and the media. We know this story: we have seen it
play out, over and over again, with our clients and with the women and
journalists with whom we have spoken. We also explore what women go
through in order to speak out, and the legal risks they face. We understand
what she might come up against, and what journalists face when trying to
report on these issues. Think of this as her guidebook to his playbook. And
as we will explain, it is a playbook enabled by the law.
The sheer scale of allegations of misconduct against the rich and
powerful might make it seem like publishing these stories is easy. But the
fact is that publishing allegations of violence against women takes a lot of
hard work—and resources—behind the scences. Perhaps his celebrity or
power has protected him so far. The journalist wants to tell your story,
which, let’s face it, will be damaging to his professional and personal life.
Then lawyers get involved. The financial risks for speaking out are huge.
Even before you enter the courtroom, hundreds and thousands of pounds of
legal costs start to ratchet up. He is litigious and will probably threaten to
sue. Even where the allegations are well known in certain circles or where
rumours are already circulating, publishing them for the world to read is
another matter entirely.
This is the story behind the stories you see in the papers. It’s the story of
what it takes to get a story over the line and into print. It’s a practical
illustration of how the different laws play out and how the rich and
powerful don’t always—in the words of Gill Phillips, head of legal at The
Guardian—‘fight fair’.
We tell this story of silencing through what we know from our work with
survivors, journalists and media organisations. We tell it through the
example of what has been reported about the experiences of those silence-
breakers and survivors who chose to go to the media about their abuse at
the hands of Jeffrey Epstein and Ghislaine Maxwell.

Speaking out

Before a newspaper prints a story with accusations of sexual or domestic

violence, there will be a woman (or several women) at the heart of that
story who has made the very difficult decision to speak out.
In our experience, women take this decision for a range of reasons. They
may have no faith in the police, or they may have had faith in the police but
been failed by them—if their allegations weren’t taken seriously or weren’t
properly investigated. In some cases, they have no interest in sending their
perpetrator to prison: perhaps they still love him, have children with him or
are related to him. But in our experience, the overwhelming reason that
women decide to speak out is to warn other women and prevent the man
from abusing anyone else. They want to highlight police or employer
failures in the hope it will help others in future. Some consider this to be
part of their own healing process.
It is a woman’s right to speak out if she chooses. But there are many legal
rules and risks that come into play.
If she has gone to the police to report a crime, this will have an impact on
how and when the media can report her story, and will affect what she can
say and when. During an active police investigation in the United Kingdom,
the media will be nervous about reporting the suspect’s name because of his
privacy rights. Most newspapers, at least in the United Kingdom because of
ever-expanding privacy laws, are unlikely to print a story about him until an
arrest is made. And even then, what they will print is very limited because
the rules on contempt of court make it a criminal offence to report on the
proceedings in any way that might prejudice his jury trial.
‘Don’t speak about it.’ This will be one of the first things police and
prosecutors will advise her. ‘Don’t speak about it to other potential
witnesses’, they will be warned because they will be cross-examined in
court about it and be accused of colluding or having contaminated their own
or others’ evidence. ‘Don’t speak about it to the media: it could prejudice
the trial or provide more material for his defence counsel to use to
undermine you in cross-examination at trial,’ they will say. If she has her
own lawyers, they will also warn her not to speak about it outside of court
because of the risk of being sued for defamation. If a woman is sued for
defamation, the case will be stayed, pending the outcome of his criminal
trial. (And it’s much easier for her to be sued successfully for defamation
than it is for him to be convicted of rape.)
While the police investigate, she can’t tell her story because his privacy
rights will protect him from any media reporting (at least in the United
Kingdom). If the police decide not to investigate or don’t charge him, this
will then also probably make journalists wary of reporting her story—
because they might think there isn’t anything to it, or because of the risk
they will be sued for defamation too. It could also prejudice her in any
future defamation case. If the authorities didn’t prosecute him, then her
allegations mustn’t be true, it will be said.
If the matter goes to trial, journalists can report what happens there
without being sued, but it must be a ‘fair and accurate report’ of the
proceedings. In practice, as we have seen, this often means that the
reporting of the criminal trial is dominated by his narrative, not hers. She
has no control over what is said in court because she is not a party to the
proceedings—she is a witness for the state prosecutor—and she does not
have the ability to respond to or rebut the narrative his lawyers are building
in his defence. She often isn’t even allowed in the courtroom except when
she gives her evidence, so she might not even hear what he says about her
until she sees it in the media. All she can do is answer the questions put to
her when she is on the stand.
 Many women report feeling silenced and disempowered by the situation
they are placed in by the criminal law: they cannot rebut his claims in court
(including baseless allegations like ‘she wanted it’ or ‘she was into rough
sex’), which are then dutifully reported by the media. This ensures the
media is protected by the law—it is providing a ‘fair and accurate report’ of
proceedings—while she remains liable to a defamation claim if she rebuts
them outside of court. In the 1 per cent of rape cases in the United Kingdom
that result in conviction, she will be free to speak about her case. If he is
acquitted—i.e. if this is one of the other 99 per cent of cases that don’t
result in a conviction—then many will claim she lied (even though it just
means it couldn’t be proved ‘beyond reasonable doubt’—a very difficult
evidential standard—or worse, he might have been acquitted because of
juror prejudice and the harmful myths we explained in Chapter 1).
Journalists will be even more wary of reporting her claims and she is at
even greater risk of being sued for defamation if she speaks out. We can’t
report that he is a rapist if a jury has acquitted him, it will be said. Women
face different forms of silencing throughout the criminal justice process—
and after it.
Given the extremely low level of prosecution and conviction in cases of
domestic violence and rape, many women decide not to go to the police.
Some women don’t want to be retraumatised by going through the criminal
justice system. Some women feel they cannot go to the police, as we
explained in Chapter 2, for fear that they will be arrested for immigration
offences or under other morality laws. Some women don’t want to see their
former partner or boss in prison. You need only look up the hashtag
#WhyIDidntReport to get a sense of why only 14 per cent of women in
Australia, Canada, the United Kingdom and the United States ever report
their abusers to the police.
Whatever their reason for not reporting to the police, women and other
victims and survivors of violence should not be criticised or penalised for
choosing not to do so—but, as we show later in this chapter, too often they
are, in public and in the defamation claims brought against them. ‘You’re
damned if you do go to the police, and you’re damned if you don’t,’ one
woman told us. Justice comes in many forms and, for women, the criminal
justice system is but one forum, and a deeply flawed one at that. While
there is a certain kind of silencing of women in the criminal justice system,
there are different legal risks and associated forms of silencing when
women choose to speak out.
As Pia Sarma explained to us when we interviewed her in early 2022,
many women decide to approach journalists to tell their story to obtain a
different type of justice and to warn other women. As Pia explained,
‘MeToo triggered an enormous wave of women coming forward’, with
women choosing to go to the media instead of the police, or resorting to the
media after the police failed them.
This is what motivated Maria and Annie Farmer to speak out about
Jeffrey Epstein back in 2002. They decided to tell a journalist at Vanity
Fair, Vicky Ward, about their 1996 abuse by Epstein and Ghislaine
Maxwell—and to go on the record about it—because telling the FBI, ‘did
not lead to either of them being held accountable’. When the Farmers
approached Vanity Fair, rumours were already circulating. Ward had heard
these whispers about Epstein and young women, and that Maria Farmer had
had ‘a bad experience’ with him. Indeed, future US president Donald
Trump had told New York Magazine, ‘It is even said that [Epstein] likes
beautiful women as much as I do, and many of them are on the younger
side.’
But it would take more than a decade for the full story of Epstein’s abuse
to be told—and it was not told by Vanity Fair, which decided against
publishing the Farmers’ allegations for legal reasons. It was only in 2006—
three years after Vanity Fair silenced their stories—that Epstein was
arrested for the first time. It would take many more years to understand the
sheer extent of his abuse: more than 150 women have since accused him of
sexual abuse, including many who were underage.
It is also what motivated Virginia Giuffre to speak out to ABC News in
the United States in 2015. But ABC didn’t air her interview either—again,
for legal reasons. It was not until 2019, after reporting by Julie Brown at
The Miami Herald, that Epstein was arrested for sex trafficking of minors—
but he committed suicide in prison before he could be put on trial. Maxwell
was convicted in late 2021 for her role in Epstein’s sex trafficking of
underage girls.
As David Folkenflik has written for National Public Radio (NPR), until
2018 Epstein’s abuse largely escaped media scrutiny. Why was it that
Epstein’s victims’ stories were silenced for so long? And how many women
could have been warned and protected if the Farmers’ story had been
published in 2003 and Epstein was exposed then as the criminal he was?

Going to a journalist

Some women decide to take their stories to the media. But once you speak
to a journalist, it is not up to you whether the story will be published: it will
be up to them, their editors and their lawyers to decide whether or not to
investigate your claims, to determine whether there is enough evidence for
them to publish your story, and to decide if and when your story will be
told. Those investigations can take weeks, months and sometimes even
years.
When speaking to the media, survivors need to consider whether they
want to be named or not—and an ethical journalist will discuss your options
and the risks of identification with you. In some countries, you will
automatically be entitled to anonymity. Some, like ‘Jane’ in the Sunday
Times story, choose to remain anonymous. But some women decide to
waive their legal right to anonymity in order to more effectively tell their
personal story to fight for justice and change. But with that comes the
scrutiny, the online trolling and the sadly inevitable attacks on your
reputation and credibility—and even death and rape threats.
If you don’t want to be named, how can your identity be protected? The
journalist will have to be careful about the details they report to protect you
from the risk of ‘jigsaw identification’—that is, where there is enough
information in the article and elsewhere in the public domain for people to
piece together the story (like a jigsaw puzzle) and identify you. It’s
important to be clear with journalists about whether you want to protect
your identity. It’s also important to be clear about how much of your story,
and of the information you give them, is on the record (which they can
publish) or off the record (for their background knowledge but not for
publication). Some women don’t want all the graphic details of their assault
reported—and it’s often not necessary to tell the story—so don’t be afraid to
be clear about what you’re comfortable with being reported.
One of the first things a journalist will ask is if a woman has gone to the
police. For the reasons we explained earlier in this chapter, this can affect
what they can report and when—and it may even affect whether they
investigate the matter at all.
Alongside the ‘has she gone to the police?’ flow-chart of legal
considerations, the journalist has to carefully consider all the circumstances.
The journalist knows that allegations of this kind are serious. Jeffrey
Epstein was reportedly one of the richest and most powerful men in New
York in the early 2000s—and had a lot of powerful friends. Allegations of
violence against women can seriously harm a person’s reputation and have
consequences for his work and his family life. Any story that includes them
comes with significant legal and cost risk, and could also have serious
consequences for the journalist’s reputation—and their publication’s—if
they get it wrong. Each investigation and each story is its own legal
adventure.
Is there a non-disclosure agreement, or NDA? If there is—whether from
an earlier settlement of her legal claims against him or as part of her
employment contract—things are legally very tricky (see Chapter 5). She
has been contracted to silence. An NDA cannot stop her reporting him to
the police, but it will likely be a breach of her NDA for her to speak to a
journalist, and even for the journalist or their lawyer to look at the terms of
her NDA to know what they are dealing with. She would need to seek
independent legal advice on her NDA before any investigation could
progress. He could—based on the NDA—get an injunction to stop
publication, and sue her and the newspaper for damages if the story is
published. The courts will typically uphold her contractual obligation to
him to remain silent. Most people can’t afford to bring proceedings to try to
get out of an NDA: the fees can run into the thousands; if he fights it,
maybe the millions. That could be the end of the road for the story.
While it was reported that some Epstein victims had signed NDAs, Maria
and Annie Farmer had not—so their story could go ahead.
If the investigation proceeds, it will often take months of detailed
investigation before the story ever makes it into the newspaper. It will
involve interview after interview with the woman, or women, about what
happened—both to assess their credibility and test the facts. Who is the
perpetrator? Where did it happen? Are there witnesses? Did you tell anyone
else? If not, why not? If so, who and when? Why didn’t you go to the
police? Do you have any documentary evidence to confirm what you say?
Her motivations will be questioned. It will also involve gathering as much
contemporaneous evidence as possible to corroborate her truth: text
messages, emails, medical records and evidence from friends, family,
colleagues or anyone she might have told about it. Some media
organisations require the women to give a formal witness statement or make
a statutory declaration to affirm the truth before they will publish her story.
Some survivors can feel demoralised by the barrage of questions they
face from journalists and their lawyers. Even if a journalist believes you,
they have to conduct a rigorous investigation of the facts and they have to
get it past their lawyers and editors. A good journalist should explain this to
you, and the legal reasons for which they have to question everything you
tell them. Journalists aren’t prosecutors, but reporting these stories should
(but doesn’t always) involve a rigorous process of building a strong case,
with the mindset that it may well one day end up in court.
The difference between a prosecutor and a journalist is that the latter
needs to be able to prove your case to the civil (rather than criminal)
standard of proof: the truth, on the balance of probabilities. They have to be
able to show their editors and counsel that, if they were ever sued for
printing your story, they could prove in court that what they have written is
true—or at least that their investigation met the standards required of public
interest journalism. That’s what the law and the courts require. It is in your
interests for journalists to do their job properly, as their aim is to protect
themselves and you from the stress and cost of legal claims.
If it is one woman accusing him, then it’s her word against his. For some
journalists, this is too legally risky: some say they would need to gather
testimonies from multiple women before they feel confident to approach
their editor with it, let alone before they will print a story. One woman’s
account is too easily attacked as lacking credibility, they say. One in-house
legal counsel told us the same thing.
Years of feminist advocacy has meant that, in criminal cases, a woman’s
own account is enough evidence on its own to convict an accused offender.
Juries are now specifically reminded that her testimony is enough. But
when it comes to libel, it seems that for some journalists, lawyers and
courts, one woman’s evidence often isn’t enough: it must be corroborated
by other evidence, or by other women. How many women must accuse a
man before a story about his abuse can be published?
One media lawyer we spoke with raised the importance of ensuring that
the allegation is a matter of public interest. Is the figure against whom the
allegation is being made a public figure? Is there something that makes it a
public interest story? She suggested that these questions are important, and
that printing a story that includes an accusation or allegation of sexual
assault or domestic violence of an unknown individual might not make it
over that hurdle, whereas allegations against industry leaders or other public
figures likely would. Recall the case of Andrew Griffiths (see Chapter 2),
where public interest arguments were made in relation to allegations and
civil findings of abuse against a man who had been an incumbent MP.
In Epstein’s case, reporting about his abuse was clearly in the public
interest. Maria and Annie Farmer both went on the record and had agreed to
be named as part of the story. Both women said they were sexually
assaulted and exploited by Epstein, with Maxwell’s help. They had told
their mother and friends, and their mother also went on the record. But
when it came to it, Vanity Fair did not publish their story. Vicky Ward’s
profile, entitled ‘The Talented Mr Epstein’, merely spoke of his tendency to
surround himself with young women.
In the years since, and particularly since Epstein’s death, there has been a
heated debate about why the women’s story was spiked. Ward has since
claimed she was determined to expose Epstein as a sexual abuser, but that
Epstein convinced her editor, Graydon Carter, not to publish the story. ‘It
came down to my sources’ word against Epstein’s,’ she told The New
Yorker, ‘and at the time Graydon believed Epstein.’ It has been reported that
Epstein threatened and pressured Carter not to publish the story, but Carter
disputes the suggestion that this affected his editorial judgement. Instead, he
says, the abuse story was pulled for legal reasons: it would not have
withstood a libel claim. Carter told The Hollywood Reporter that Ward did
not have three sources on the record, which he said he considered necessary
for the story—but he later clarified that Ward did not have three sources
that met the magazine’s ‘legal threshold’.
How many women had to accuse Epstein before the story could be
published? Two or more, according to Vanity Fair.
Whatever the truth about why Vanity Fair spiked the story, there is a
lesson for women wanting to speak out: it is important to think carefully
about the journalist you choose to speak to, and the publication’s track
record in reporting stories of violence against women.
The situation can sometimes be ‘chicken and egg’. It often takes one
allegation to be reported for more people to come forward—reporting the
story about him will ‘shake the tree’. That is to say, reporting one story
about him can encourage more women or more witnesses to come forward
about him. The important public interest role played by the media is
recognised by police, who often make statements to the media appealing to
the public to come forward with evidence to assist their investigations. As
cases from Harvey Weinstein to Bill Cosby show, it usually takes that first
woman to come forward—and the first journalist or media organisation to
bear the initial cost risk to publish—to break the dam. As we saw in those
cases, more and more women coming forward to the media finally
prompted police action and criminal prosecutions. Indeed, when federal
prosecutors finally charged Epstein with sex trafficking in 2019, the then
US Attorney for the Southern District of New York said, ‘We were assisted
by some excellent investigative journalism.’ This kind of public interest
reporting is incredibly important, and can also be relevant in some
jurisdictions when it comes to defending defamation claims.
Even where there are multiple accusations, the story might not get over
the line. It is often said that if the women’s stories are similar—as they were
with Weinstein—it shows his modus operandi and it’s more likely they are
all telling the truth. But it can cut both ways: if their stories are too similar,
have they colluded? Journalists have to assess their credibility, because the
women will inevitably be accused of lying and/or colluding out of revenge.
Did the women know each other? Have they spoken to one another about
their allegations? For Pia Sarma at Times Newspapers Limited, one
woman’s story can be enough, but in practice the media organisation must
always have in mind how a judge might respond to the claimant lawyers
who still ‘churn out those lines about women being devious and
manipulative’, and the sometimes sexist arguments that we still see being
run by what are largely all-male legal teams before mostly male judges.
The fact is that the media’s assessment of the credibility of certain
women’s claims can silence stories. The Weinstein story broke after
powerful, high-profile women in the entertainment industry spoke out on
the record. Why did it take so long for Epstein’s victims’ stories to be
reported? ‘Some critics of the press’s performance say ruefully there may
have been a class element at play . . . Epstein and his associates recruited
young women from working-class backgrounds and disrupted families,’
writes David Folkenflik for NPR.
 Journalist Jim DeRogatis investigated abuse claims against the musician
and producer R Kelly for twenty years before Kelly was finally prosecuted
and sent to prison. He is reported to have harmed as many as 48 women and
girls. ‘Everyone failed these young Black girls,’ he said.
Despite many young Black women coming forward, DeRogatis struggled
to place his stories in the media. His dogged reporting is now credited with
helping to end Kelly’s abuse, but DeRogatis said his conviction was ‘too
little, too late’ for the women whose stories he reported. ‘It was very
difficult for any of them to take satisfaction out of the fact it took two
decades to stop it,’ he said. Throughout his reporting, the most common
comment he heard from women was: ‘Nobody cares about young Black
girls. Nobody is going to believe us.’
Then there is the question of what the journalist will report about the
allegation and how it will be reported. Survivors often want their truth told,
and they want journalists to publish it in definitive terms: she was raped and
he is a rapist. But for legal reasons, in any story about rape or gender-based
violence, you will read the words ‘alleged’, ‘claimed’ or ‘reported’ before
the words ‘abuser’ or ‘rapist’. You will find, somewhere in the story, ‘she
said’ and ‘he said’: a denial from him or words to the effect of ‘all claims
are strongly denied’. Survivors can sometimes feel betrayed by this, but it is
the work of the newspaper’s legal counsel, who is trying to ensure that the
paper, the journalist and the person making the accusation in the news story
don’t get sued. It is easier for the newspaper to defend in court an allegation
that there were grounds to suspect he had raped her, rather than a statement
that he is guilty of rape. Language matters—and it really matters in the law.
Similarly, publishing an allegation of a specific crime like attempted rape
or strangulation is risky: could he allege that he didn’t intend to rape her?
Could he allege that he didn’t intend to kill her? We need only look back at
Nicola Stocker’s case (‘he tried to strangle me’) in the Prologue to see why
language matters. This is why the language is often softened by the
newspaper’s lawyers: the newspaper might use wording such as ‘sexual
misconduct’ or some form of words which is not defined in criminal law.
Again, this is to make it easier to defend a lawsuit later, if they are sued.
We’ve seen time and time again the media’s tendency to minimise violence
against women. But there are also legal pressures that contribute to this.
The story is carefully reviewed and checked by the legal department—
but there is one very important stage left: the journalist has to go to him for
comment. By this time, the investigation could have taken weeks, if not
months. The journalist will have spoken to the woman or women making
the allegation multiple times, and obtained any corroborating evidence there
might be. The story will have cleared the internal steps to prepare it for
publication. Journalists are supposed to contact the subject of any story who
is accused of wrongdoing to give him notice of the story and allow him
time to respond (it is required by broadcasting rules in the United Kingdom
and for journalists who want to later rely on a public interest defence in any
defamation claim).
This is called the ‘right to reply’ and it allows the subject of the story to
ensure their version of the facts are included. In MeToo type situations, the
reply is often simple and predictable: it’s all lies, and all wrongdoing is
denied. But what it also means is that he is put on notice—if he didn’t
otherwise already know—that she is speaking out.
What’s the first thing he does? Make a call to his lawyer (or team of
lawyers)—and his PR team. This is where his playbook begins.

Play 1: The legal threat letter

His first strategy is simple: send a letter. But not just any letter. This letter
will threaten costly legal proceedings: it might threaten the journalist that he
will go to court for an injunction if they don’t undertake to stop publication,
or he might claim the allegations are ‘false and defamatory’ and threaten to
sue if they go ahead and publish. This is what reportedly happened when
The Sun tried to publish abuse allegations about Jimmy Savile, the former
BBC television presenter, in 2009, while he was still alive. The stories were
only reported by the media after Savile’s death in 2011, by which time there
was no risk in doing so because you can’t defame the dead. A Met Police
report in 2013 later found that Savile had commited sex offences against
450 people, including 328 minors. How many women and children could
have been warned and protected if the story was published earlier?
The legal threat letter is an effective tactic because legal proceedings are
extremely expensive—even if the defamation claim never gets to trial,
masses of costs can be racked up. Pia Sarma told us that if you get a story
about rape wrong and later have to pull it and apologise, it could cost
hundreds of thousands in legal fees and damages. Even if you get it right
but you’re forced to defend it at trial, it will cost hundreds of thousands—or
even millions—more. For many journalists and newspapers, the cost risk is
simply too great. For every defamation trial you see, there is an avalanche
of legal letters and threats that have stopped stories from reaching the
public domain: the threat of legal action has prevented publication. No one
knows how many women’s stories have been silenced, because these letters
are confidential and marked ‘not for publication’. No one knows about it
except the journalist, their legal team and his lawyers. In this way, the rich
and the powerful have ensured—in some cases for decades—that
allegations of abuse and harassment, even if widely rumoured, have not
been reported in the media.
For journalists, it is much easier to report on allegations of rape or abuse
where there is a prosecution. As we have seen, journalists cannot be sued
for defamation for fairly reporting on what is said in court. Where there is
no criminal prosecution or any other civil claim where the facts are heard in
court, though, they are at legal risk. In some countries, especially in Latin
America, journalists will only report a case after a trial has commenced, or
even wait to be sure and report only after it has concluded with a
conviction. The problem is that most rape cases don’t go to trial, and 99 per
cent don’t result in a conviction—so for a media organisation to require a
conviction before it publishes an allegation is to effectively refuse to report
on 99 per cent of rape cases.
After the receipt of a legal threat letter, it takes deep pockets, determined
journalists, and editors and lawyers who have an appetite for risk to follow
through and print the story. As Gill Phillips explained to us, the lawyers at a
newspaper advise on the legal risks but the choice to publish ultimately
rests with the editor. While it might be possible for large media
organisations with large legal budgets and experienced in-house counsel to
assess the risk and deal with these letters, for freelance journalists or small
media houses, it is much harder—seeking external legal advice is
expensive, and legal action could mean they face bankruptcy and are shut
down.
When Professor Julie Macfarlane decided to go public about her abuse by
an Anglican priest (see Chapter 1), she went to the Church Times. In her
book Going Public (2022), she explains how the journalists were threatened
with an injunction by the diocese and had to have a barrister on call. The
journalists admitted to her that they wouldn’t normally have the legal
budget to contest an injunction. Happily for Julie, they were able to publish.
The resulting publicity led other survivors to reach out to her—and the
church suddenly became interested in settling her case.
For some small publications, though, the legal threat letter can force self-
censorship: smaller media organisations often just can’t afford to take a risk
on stories about violence against women. Rich and powerful men, and their
lawyers, know this. They know that one warning shot can be enough to shut
the story down, and silence the victim and the journalists who want to tell
her story. The legal threat is not about winning the case at trial, but about
pressuring her or the journalist into self-censoring. The result can be a
silencing of stories about a particular man for years, even decades. If no one
in the media reports on it, then other women who might have come forward
never find out that they were not alone. Women remain in their silos of
silence. That’s often why these letters are so aggressive: their aim is to shut
the story down before it starts rolling, and before other women (if there are
any) come forward.
Vanity Fair’s decision to pull the Farmers’ Epstein abuse story because of
the defamation risk is just one example—there are others. In 2006, the
allegations of almost three dozen more women led to Epstein being
charged. But his lawyers struck a controversial plea deal so he could plead
guilty to reduced state charges of ‘soliciting prostitution from a teenager’,
instead of the more serious charge of sexual assault of minors. Epstein spent
fifteen months in jail, with much of it on ‘work release’. Afterwards,
Epstein was quickly accepted back into society: he hosted a dinner to
honour Prince Andrew at his Manhattan home, and donated large sums to
scientists and institutions for art and music.
Years passed and the story seemed to be over. But in 2015, another
survivor, Virginia Giuffre decided to tell her story about Epstein and the
powerful people around him, including Prince Andrew. She decided to
speak out because ‘Epstein was walking around a free man, comparing his
criminal behavior to stealing a bagel,’ as she wrote in an email to NPR. ‘I
really wanted a spotlight shone on him and the others who acted with him
and enabled his vile and shameless conduct against young girls and young
women.’ Giuffre went to ABC News; she later told NPR that she saw an
opportunity to call out the government ‘for basically looking the other way’
and she wanted ‘to describe the anger and the betrayal victims felt’. But the
story never aired, and she was never told why.
 According to NPR, the story was pulled after Epstein’s powerful lawyer,
Alan Dershowitz, called ABC to speak with the producers and their lawyer.
ABC told NPR their decision not to broadcast the interview ‘reflected
proper journalistic care’, but refused to detail its editorial choices. Giuffre
has said: ‘I was defeated, once again, by the very people I spoke out against
and once again, my voice was silenced.’
After ABC pulled Giuffre’s interview, it would be another journalist’s
work that would result in more of the Epstein story finally being told. Julie
Brown at The Miami Herald continued to dig and investigate Epstein after
the government allowed him to plead to lesser charges—and later revealed
the extent of his abuse. As The New Yorker reports, her persistent reporting
and the role of investigative journalism in helping to hold Epstein
accountable was praised by Attorney General William Barr after Epstein’s
arrest in July 2019. Journalistic inquiry and reporting can assist the criminal
justice authorities. But, as Brown has said, she—and all journalists
reporting on Epstein—lived in constant fear of being sued for defamation.
Even now, at the time of writing—after Epstein’s suicide and Maxwell’s
conviction—we haven’t yet heard Giuffre’s full story for legal reasons. In
2022, Prince Andrew settled the civil claim brought against him by Giuffre
for sexual assault and battery during her time working for Epstein and
Maxwell for a reported US$12–15 million. The settlement came with a
limited NDA: she couldn’t tell her story until after the Queen’s Platinum
Jubilee. Amber Melville-Brown, a media lawyer, said Giuffre’s time-limited
silence under the settlement would be ‘worth its weight in gold to the
Queen’. Prince Andrew denies all wrongdoing.
The Epstein story shows that even large media outlets will silence stories
because of legal risks. Vanity Fair and ABC News silenced Epstein stories.
Journalist Ronan Farrow reportedly left NBC and went to The New Yorker
after NBC refused to run his reporting on Weinstein. It can be seriously
upsetting for the journalists who work with women for months—sometimes
years—to build trust to enable them to come forward and tell their story,
only to have the story spiked by an editor or their legal team, often at the
last minute.
According to Vicky Ward, it was an editor at Vanity Fair who informed
her that the magazine had decided not to include the Farmer sisters’
allegations against Epstein in her story. ‘I must have gone into the office,
because I do remember being there and just crying . . . They had been so
brave, and we just let them down,’ Ward later recalled.
For the women who have trusted journalists to tell their story, it can feel
like a brutal betrayal of trust. In a statement to NPR, the Farmer sisters said:
‘It was terribly painful. We hoped the story would put people on notice and
[Epstein and Maxwell] would be stopped from abusing other young girls
and young women. That didn’t happen. In the end, the story that ran erased
our voices.’
Their lawyer, David Boies, claimed that Vanity Fair’s omission made it
more difficult for other victims and witnesses to speak out. ‘I think it helped
create the impression among many of the victims that the media was under
Epstein’s control, that Epstein had all this power.’
The fact is that women’s stories are often silenced for legal reasons. For
every story you read in the paper, many more have been spiked—thanks to
Play 1.

Play 2: The privacy injunction

His lawyers have written to vehemently deny the allegations. And to

threaten legal action (Play 1). But the media organisation’s in-house counsel
nevertheless signs off to publish the story—provided, of course, that the
journalist includes the accused man’s denial in the story. The next move
from the playbook will now be made.
His lawyers might rush to court to obtain an injunction or suppression
order from a judge to stop the publication. A letter then arrives to inform
the journalist that they cannot publish because there is an interim injunction
or suppression order. There are different types of injunctions, but usually it
means a journalist can’t report certain details of the story, either because it
affects his private life or because she was silenced by a contract (an NDA).
The newspaper cannot legally publish her story, and will have to apply—at
great expense—to challenge the injunction or let the matter go to trial. They
will have to prove to the court that there is some legal justification for
publishing the story, or that the public interest in publishing the story
outweighs his private interest in keeping it quiet.
We want to make it clear here that injunctions aren’t all bad: they can
protect individuals against unlawful intrusion by the media, and the
publication of private information, such as threats to sell or publish intimate
photographs, a sex tape or other sensitive information. Injunctions can also
be obtained by victims of sexual offences to protect their anonymity where
they are concerned that publication would lead to their ‘jigsaw
identification’. In this way, injunctions can provide important protections.
But the playbook injunction is one that seeks to suppress legitimate and
public interest reporting on allegations of sexual harassment, rape, sexual
abuse or domestic abuse, and misconduct. They are sought by those who
have the money to get them, in order to prevent criticism and silence
women and force newspapers into expensive legal battles before they can
tell important, public interest stories. They are increasingly sought in the
United Kingdom—but in places like the United States and Australia there
aren’t the same privacy laws.
In 2008 Max Mosley famously sued The News of the World over a front-
page article entitled ‘F1 boss has sick Nazi orgy with 5 hookers’ and a
video that accompanied it. The court held that the newspaper had breached
Mosley’s privacy, confirming that we are all entitled to have a reasonable
expectation of privacy in relation to consensual sexual activity in private—
even if the sex was ‘unconventional’—but not where it amounted to
criminal conduct. The question is one of balance: does the free speech and
public interest in publication outweigh his right to privacy? In this case, the
sex had involved some ‘spanking’, but it was consensual and no offences
had been committed. On this basis, the court found there was not sufficient
public interest to justify publication, and ordered the newspaper to pay
Mosley £60,000 in damages for violation of his right to privacy. The
problem for Mosley was that the cat was already out of the bag: he was only
able to sue for damages after publication. He complained to the European
Court of Human Rights that the newspaper had not given him advance
notice for him to have the opportunity to obtain an injunction to stop the
story before it ran—and that the law should require the media to give
advance notice. Jen intervened for the media in that case with Geoffrey
Robertson QC, arguing it was too strict a rule and would chill public
interest reporting, and Mosley lost. As confirmed by the European Court,
and the following Leveson Inquiry—the British public inquiry into the
culture and ethics of the British press after the News of the World phone-
hacking scandal—prior notification is ‘good practice but not a legal
requirement’.
 Privacy rights have been developed in cases like this to protect
individuals from excessive intrusion by the press and by the state. It was in
fact model Naomi Campbell who played a leading role in ensuring that
everyone, including celebrities, has their right to privacy protected in the
era of tabloid journalism. That’s a good thing. Privacy is an important right,
and has since developed to stop people from posting or sharing intimate
information, naked images or sex tapes. But there are concerns that privacy
injunctions are being used by rich and powerful men to cover up
misconduct—and, more recently, even to cover up abusive and potentially
criminal conduct.
In the United Kingdom, there have been heated debates about the
availability of super-injunctions to cover up alleged sexual misconduct. A
‘super-injunction’ is an order that prohibits any reporting of the matter, but
with an added extra: not only can you not report on the matter, you cannot
even report the fact that an injunction against reporting the information
exists. Celebrities and footballers used them to prevent what were once
known as ‘kiss and tell stories’. For example, in 2011 the Manchester
United footballer Ryan Giggs got a super-injunction against Imogen
Thomas and The Sun newspaper to stop any reporting on his extramarital
affair with her. We only know about it because an MP later named him in
parliament under parliamentary privilege.
Gill Phillips, the in-house legal counsel at The Guardian, has written
about these injunctions, and how ‘courts are allowing men to treat women
like chattels’. Back in 2010, Gill argued: ‘The real harm of these orders is
not that they gag the press—it is that they stop the wives, partners and
families from finding out about the bit on the side.’ She questioned whether
the courts were confusing private information with public image or
commercial reputation.
Famous people have obtained injunctions to stop reporting about hiring
prostitutes, with the courts holding that ‘sexual encounters in private with a
prostitute’ should also be protected under privacy rights. These privacy
injunctions are often brought by male barristers on behalf of male celebrity
clients, and are granted by male judges. As Gill points out, ‘little or no
regard appears to be given to the rights of women in these cases’. Indeed,
privacy rights have developed to a point where, when it comes to sexual
secrets, ‘his asserted entitlement to autonomous control of information
about his sexual life’ seems to countervail other rights, including a sex
worker’s right or potentially even his mistress’s right to talk about her own
sexual life. The problem Gill highlighted is that privacy injunctions have
been granted in a way that privileges his rights over hers.
We caught up with Gill in 2022 to talk about recent developments in the
law on privacy. As she explained, the MeToo movement in 2017 has shifted
the cultural debate. Allegations which perhaps would not have been
reported back in the 1970s or ’80s are now fearlessly investigated by
journalists around the world. Story after story has emerged since
Weinstein’s downfall. Gill pointed to the reporting on the allegations
against Prince Andrew, a member of the British royal family, which would
have been unthinkable in the 1970s. But Gill also explained that, in parallel
to this cultural shift and understanding, the law has also been subtly
moving. The debates no longer centre on super-injunctions, which are
increasingly rare. Now, there is a creeping shift and expansion in the
circumstances in which injunctions are being made available to protect
privacy rights, including to protect a person’s identity when they are under
investigation and the allegation against them would damage their
reputation.
On 14 August 2014, Sir Cliff Richard’s home was due to be searched by
the South Yorkshire Police. The BBC was tipped off about the search, and
to the fact that he was under investigation in relation to allegations of a
historical sexual offence (which he strenuously denied, and no charges were
ever brought). Sir Cliff’s case established a new precedent in UK law: that a
suspect has a reasonable expectation of privacy in relation to a police
investigation. The High Court held:

If the presumption of innocence were perfectly understood and given

effect to, and if the general public was universally capable of adopting
a completely open- and broad-minded view of the fact of an
investigation so that there was no risk of taint either during the
investigation or afterwards (assuming no charge) then the position
might be different. But neither of those things is true. The fact of an
investigation, as a general rule, will of itself carry some stigma, no
matter how often one says it should not.
 In 2022, in a case brought against Bloomberg News, the Supreme Court
of the United Kingdom confirmed that, as a starting point, when a person is
under investigation for a criminal offence, they have the right to privacy in
relation to the fact that they are being investigated until they are charged.
The Supreme Court ruled that Bloomberg had been wrong to seek to name a
businessman, ‘Mr ZXC’, as facing a criminal investigation into his work
activities—and upheld the injunction that he had obtained to stop
publication. It held that reporting this information before the authorities had
made the decision to charge him would cause unfair reputational damage to
Mr ZXC, violating both his rights to reputation and other aspects of his
private and family life. The lower courts in the case had explained that it is
a ‘human characteristic to assume the worst (that there is no smoke without
fire)’ and that people tend to overlook the legal principle that an accused
person is innocent until proven guilty. The Supreme Court explained that, as
a legitimate starting point, until someone is charged with an offence the
information relating to a criminal investigation is private.
The Supreme Court’s finding has raised numerous questions for the
media: can a newspaper name a person who has not yet been charged with a
criminal offence but who is under criminal investigation? Does a person
have a right to privacy to prevent publication of the fact that they are
suspected of criminal activity? Can a privacy injunction be used to stop
newspapers printing allegations of gender-based violence if there is a police
investigation? When do the circumstances tip towards reporting and when
do the scales tip towards privacy?
‘It’s a legal minefield,’ Pia Sarma told us. She explained that these
decisions have made publishing stories about gender-based violence even
more difficult. It could also potentially thwart investigations and reporting
—for example, if a newspaper has been investigating and gathering sources
for months, and a police investigation then commences, the journalists will
be deterred from publishing what they have learned.
Another big concern for the media is what this decision means where the
person accused of sexual offences is not yet under criminal investigation.
What happens when the press report allegations of serious criminal
wrongdoing, such as sexual assault or rape, but there is not (or not yet) a
police report, investigation or conviction? At present, these allegations will
be published and the accused’s legal remedy is to protect his reputation by
suing for defamation. But the ZXC decision has led media lawyers to
question whether a man might now be able to obtain a pre-publication
injunction for libel as well as for breach of privacy—the very possibility
Jen and Geoffrey Robertson QC had warned the European Court of Human
Rights about in the Mosley case over a decade ago.
Serious concerns exist that the expansion of privacy rights and the use of
pre-publication injunctions will be used to stifle free speech and public
interest reporting about domestic and sexual violence. And there are
indications that this is already happening.
For example, in the United Kingdom in 2018, The Daily Telegraph stated
that it had been gagged from reporting MeToo allegations, running with the
headline ‘British #MeToo claims which cannot be revealed’. The newspaper
reported that it couldn’t publish this MeToo story because a ‘wealthy
businessman’ had obtained an injunction based on the non-disclosure
agreements (NDA) his employees had signed. This resulted in litigation in
which the courts upheld his NDA over the public interest in reporting the
sexual harassment claims against him. After widespread concern about the
courts’ decisions and speculation about the identity of the businessman at
the centre of the scandal—as we explain in Chapter 5—Lord Peter Hain, a
member of the House of Lords, used his parliamentary privilege to name Sir
Philip Green as the businessman at the centre of the scandal. Sir Philip, a
high-profile British businessman and billionaire known for owning high
street fashion stores such as Topshop, was able to get an injunction to stop
the allegations of sexual harrassment and bullying from being printed
because of the NDAs the women had signed when they settled their
employment claims against him.
In 2019, a multi-millionaire businessman applied for ‘secrecy orders’ to
prevent reporting that he was accused of serious sexual harassment and
assault. Sean O’Neill, a leading journalist, reported on how a rich and
powerful figure was preventing The Times from naming him as the person
facing serious allegations. They referred to him only as ‘Mr X’. Six months
later, The Times reported that Mr X was continuing to try to censor
newspaper reporting, and that Mr X was ‘at the centre of a police
investigation over sexual assault allegations’. The Times detailed how he
had ‘enlisted defamation lawyers and a reputation management firm to
further restrict coverage by The Times of the police inquiry into allegations
made by a former employee’. Mr X strenuously denied the allegations. His
identity has never been publicly revealed, but a different story was: how the
most wealthy and powerful use the law to suppress and silence reporting on
their alleged assaults.
But if there’s no injunction forthcoming—or if the media organisation
can afford to fight it, the public interest wins the day and the injunction is
overturned—publication can go ahead. But they can still be sued.

Play 3: Non-legal and unethical silencing techniques

A whole range of other techniques are used to suppress and silence

women’s stories—these represent the darker side of his playbook. We have
seen these techniques deployed both before and after publication. Some
techniques suddenly became more visible after 2017, when the tactics of
powerful men such as Harvey Weinstein were revealed to the public. They
include threats, online attacks, spying and PR campaigns—all with the aim
of undermining and silencing both women and the journalists who are
trying to tell their stories.

Undermine the accuser

Along with letters threatening legal action, those who make accusations of
misconduct have found themselves personally attacked or spied on by the
accused’s lawyers or by an investigative firm. Sometimes this is done to
gather material to attack the complainant’s credibility, with the aim of
deterring the journalists and editors from reporting the story. Sometimes it
aims to damage the woman’s reputation in the media or later in court so the
public and juries won’t believe her, or it may be done to deter other women
from coming forward (in countries without anonymity protection for
women making accusations of sexual violence).
Women have told us how they have been spied on, how their friends,
colleagues or landlords have been approached, how they feel unable to go
out for dinner or speak about certain things in public, and how they have
even moved countries in a bid to escape prying eyes—and worse. Women
report facing immense attacks online, and apparently coordinated
inauthentic online activity, as well as rape and death threats. Women have
told us—and we have seen it happen to our own clients—how every detail
of their life is scrutinised and turned over to try to frame them as harlots or
liars. This includes the use of the harmful myths we explained in Chapter 1
and all kinds of sexist tropes that sometimes mesh with specific cultural
ones.
For example, Shiori Ito, whose story we told in Chapter 2, told us how
she had to leave Japan because of the scrutiny and attacks she faced after
she accused a powerful man of rape.
The use of spies and private investigators to undermine and silence
women received widespread international attention back in 2017. That was
when Ronan Farrow broke a sensational story, ‘Harvey Weinstein’s Army
of Spies’, in The New Yorker, detailing how Harvey Weinstein had allegedly
set out to suppress allegations that he had sexually harassed or assaulted
women by hiring private security agencies to collect information and spy on
those who were trying to expose him. The company Weinstein hired was
Black Cube, an Israeli private intelligence agency that employs former
members of Mossad and other military organisations.
Personal information about each of the women, including their sexual
histories, was collected. Farrow reported that these investigations were run
past Weinstein’s lawyer, David Boies, the lawyer we mentioned earlier for
Virginia Giuffre, who ‘personally signed the contract directing Black Cube
to attempt to uncover information that would stop the publication of a Times
story about Weinstein’s abuses’. The key point was that the law firm had
contracted and paid private investigators to ‘dig up dirt’ on women and
journalists to avoid scrutiny of and publication of allegations of sexual
violence. Farrow continues:

Techniques like the ones used by the agencies on Weinstein’s behalf

are almost always kept secret, and, because such relationships are
often run through law firms, the investigations are theoretically
protected by attorney–client privilege, which could prevent them from
being disclosed in court. The documents and sources reveal the tools
and tactics available to powerful individuals to suppress negative
stories and, in some cases, forestall criminal investigations.

Writing in 2019, Farrow explained that Black Cube was only one of the
agencies hired by Weinstein to prevent the disclosure of sexual abuse
claims. Dossiers were created on journalists and accusers. One of the people
placed on a ‘list of targets’ was Rose McGowan. In her 2018 book Brave,
the actor explained her experiences leading up to the publication of her
allegations against Weinstein. With Jen’s assistance, Rose also made a
submission to the Women and Equalities Committee of the UK Parliament
in 2019, outlining her experiences. In the latter, she said:

I was later to learn that he and his powerful lawyers had another
strategy to silence me: they hired Black Cube, a London-based private
security firm who sent out former Mossad agents using false identities
to infiltrate my life, extract information from me about my book,
Brave (which I was then writing and has now been published), and
about the journalists I was speaking to, so they could stop the story
coming out. Their aim was to silence me and the other brave women
who wanted to speak out. They now have PR people, lawyers and
pliant journalists who troll my every public statement and appearance
to make sure I am always to be harassed and targeted. They first
wanted to silence me … when they couldn’t silence me, they are now
doing everything in their power to discredit me.

McGowan told the committee how she was approached by a woman who
gave the name Diana Filip, who said she wanted to invest in McGowan’s
production company. Rose later discovered that she was a Black Cube
agent, sent to ‘silence and steal’ her story:

‘Diana Filip’ was an alias for a former officer in the Israeli Defence
Forces working for Black Cube. According to their $600,000 contract,
their goal was to stop the publication of any stories about the man who
assaulted me and ‘obtain additional content of a book which is
currently being written and includes harmful negative information on
and about the Client’: that is, my book, Brave. The documents
(obtained by The New Yorker) show that Black Cube delivered more
than a hundred pages of transcripts and descriptions of my book, based
on tens of hours of recorded conversations between me and ‘Diana
Filip’. The contract had provided for them to get a bonus $50,000 if
Black Cube secured ‘the other half’ of my book ‘in readable book and
legally admissible format.’
 The New Yorker investigation, led by Ronan Farrow, also uncovered
a million-dollar bounty on my book, Brave. Apparently, it was not
enough to have assaulted me and ruined my career in film—he then
intruded into my life to silence me and steal my story. Ultimately,
Weinstein succeeded in getting 125 pages of my book before its
publication. I felt violated all over again. I was pursued in the manner
authoritarian governments pursue journalists or human rights
defenders; when all I am is a woman speaking out about sexual abuse
to stop an international predator.

McGowan wasn’t alone. Zelda Perkins, Weinstein’s assistant who went

public about her NDA (see Chapter 5), told us that she too was a target on
this list. Zelda told us that, over the years before she went public, she had
been approached by a number of people posing as journalists: she now
believes these were attempts by Weinstein to sound out whether she was
going to tell her story.

Undermine the journalist

This is another strategy straight from his playbook: undermine the personal
and professional credibility of those working to tell her story—go for the
journalist, the editor or the publication itself. Since Trump, it often starts
with a narrative that the journalism, based on her account, is ‘fake news’.
Two former Vanity Fair journalists claim that Epstein personally
threatened them and their editor in order to silence the stories of the Farmer
sisters and other survivors. According to Vicky Ward, Epstein claimed he
could have her then husband, a venture capitalist, fired. Another Vanity Fair
journalist who investigated Epstein, John Connolly, claimed that Epstein
‘was torturing’ their editor, Graydon Carter—calling him, berating him and
turning up at his office to pressure him not to tell the women’s stories.
Connolly said a bullet was left at Carter’s Manhattan home, which they had
viewed as a threat from Epstein. In 2006, when Connolly was investigating
the story about the charges against Epstein, a dead cat’s head was left on
Carter’s doorstep. Connolly claimed that Carter was concerned about his
children’s safety, and so Connolly decided to drop the story. Carter
acknowledged the threats he faced, but disputed whether they were, in fact,
from Epstein; he denied that it ever affected his editorial approach.
 In 2015, when ABC was going to air its interview with Virginia Giuffre,
the ABC journalist received phone calls from Epstein’s lawyer, Alan
Dershowitz, which resulted in ABC pulling the story because the story
hadn’t ‘reflected proper journalistic care’—essentially, an allegation that the
journalist hadn’t done their job properly.
We have spoken to journalists who have told us about how their integrity
and judgement has been called into question because of their attempts to
publish allegations of misconduct and violence against women. Women
journalists, including Catalina and Matilde from Volcánicas, told us how
colleagues have called them naive or questioned their nous for reporting
stories when the allegation had not been reported to the police. Ronan
Farrow and other experienced journalists have spoken out about how this is
not the journalistic standard required for the publication of stories about
violence against women, and not the standard to hold women to: their
stories can be reported even if police don’t investigate or prosecute—or
indeed if they have chosen not to go to police.

Build up his reputation to undermine both accuser and journalist

Reputation management and crisis management firms—sometimes working
on retainer, sometimes hired anew—go into overdrive to build up his
reputation and trash hers. There are PR campaigns to create ‘himpathy’, as
Kate Manne has termed it: that is, to generate sympathy for the man
through the media.
Wives, ex-wives, female colleagues and other survivors of sexual assault
are called upon to defend the accused. Industry figures often come out to
express their support for him and attest to his character, while colleagues
and friends give positive quotes and interviews. The man is a loving father,
brother, lover, husband or friend, they say, or a great boss or colleague. A
nice guy. He can’t possibly be an abuser or a bully. Former partners or
women friends might say he has never been abusive to them, which will be
used to undermine and isolate the woman or women making the allegations
and question their credibility. If he didn’t hurt them, then he musn’t have
done it, or so it goes.
This is obviously irrelevant to whether or not he did it: just because you
can’t imagine him doing it or because he hasn’t tried it on with you doesn’t
mean he didn’t do it to her. This argument also ignores the reality of power
dynamics: just because a man we know has never harassed us, that doesn’t
mean he didn’t harass or abuse other women—or this one particular woman
—because of his position of privilege and power in relation to her, by virtue
of her class, her race or her disability. As the Academy Award–winning film
Promising Young Woman makes clear: even men who are considered (or
consider themselves) ‘nice guys’ can be predators—or apologists for
predators.
Nevertheless, the himpathy spectacle has well and truly begun—fuelled
by the gender bias in the media and in society, and by the prejudices,
preconceptions and gendered stereotypes that tell us that women are
unreliable and not to be believed.

Unleash the trolls

Often the tactic of burnishing a man’s reputation in the media goes hand in
hand with online trolling and attacks on the woman and/or the journalist
who reported the story—social media campaigns, leaking to the media and
spreading stories about her, her previous relationships, making out she lies
or is mentally unwell or is motivated by politics or money. Journalists are
accused of spreading gossip, of being duped by an unreliable source or of
having their own agendas. Victims who have a legal right to anonymity
have their names exposed, despite it being a criminal offence to do so.
Whether it’s directed and curated or spontaneous and organic, we see this
response time and time again, and across cultural contexts: journalists,
women and their friends and support networks face vicious online trolling.

Play 4: Post-publication legal action

If a newspaper or media organisation decides to publish and the allegations

go public—there was no injunction and the other strategies failed—a whole
new raft of legal options opens up.
In some cases, the men just say sorry and disappear for a while, only to
reappear later as ‘a changed person’ to get on with their lives and careers.
Criminal investigations into the allegations remain rare. When media
coverage results in criminal prosecution, it is often only after a cascade of
allegations, lots of media reporting and significant public pressure.
 This can create a double bind for women who want justice in the courts.
Proving that there is something worth prosecuting or that the police messed
up the first time around often requires a high level of media attention and
public concern. But the widespread media reporting of her allegations can
also be used by him later to argue that he cannot get a fair trial because he
has undergone ‘trial by media’.
Defamation claims may be filed—against her or the journalist and media
organisation, or both. He will claim she lied and it is defamatory. She is
liable for what she has said to the newspaper and is published, and the
journalist and newspaper are liable for what they have published about him.
Defamation cases are incredibly expensive, which explains why wealthy,
powerful men are over-represented as plaintiffs. And the damages and legal
costs can be staggering. As in a criminal trial, she will face retraumatisation
when cross-examined by his lawyers. But this is a civil claim brought at his
behest, so she may also face bankruptcy in defending her truth, and will not
have the financial support of the state.
Women we have spoken to in different parts of the world have had to
reach out for financial support and rely on pro bono legal support in
defending defamation suits. There is no legal aid available. One woman we
spoke to feared losing her house. Another feared losing her job because of
the adverse publicity. It’s little wonder most defamation claims settle before
they get to court—and the rich and powerful know that the cost pressure
can be used to censor. These men don’t face the same cost pressures for
bringing action; in the United Kingdom and some other jurisdictions, men
bringing claims can even get insurance against the costs if they lose. So
there is no cost risk for them.
If he sues only the media organisation, and not her, she has no cost risk—
but she also has no agency in the proceedings, and will have no say in how
the defamation suit is defended. All she can do is volunteer to be a witness
to help prove her truth in court (unless there is an NDA, in which case she
will have to be subpoenaed: see Chapter 5).
‘Don’t speak.’ Whether he sues her personally or the journalist, once he
sues, she will be told not to speak about the matter. The journalist will be
warned not to write anything further, for fear of aggravating the damage to
his reputation and increasing the damages to be paid later, if they lose. This
silences the woman, the media, her friends and any advocacy groups that
might want to support her by campaigning for justice, who will also usually
be advised not to repeat or comment on the allegations.
Once women are sued, they can become isolated from their support
networks. It limits what they can say about their own life experience.
Women have used the words ‘my alleged rapist’ instead of ‘my rapist’, even
in private, because they are scared that they will be overheard or because
they have been conditioned by how the law requires them to speak about
their perpetrator in public. Women have told us how they became scared to
speak. Women have told us how the silencing stopped their healing process:
they could not speak about their own lives, the abuse they suffered, even to
their friends. And women have told us how they were retraumatised by
having to have contact with his lawyers and being forced to revisit what he
did to them.
Defamation proceedings can take years to resolve, and there is nothing to
stop a rich and powerful man from suing in multiple jurisdictions. Some
women we spoke to were tied up in libel proceedings for years. By suing,
he stops people talking about it and he stops further reporting on it—at least
until the matter goes to trial. But not all defamation claims get to trial.
Some women have to settle the claims brought against them for financial
reasons, and can be permanently silenced: it is often a condition of the
settlement that she cannot repeat the allegation or she will face fresh legal
action. In some cases, she is even required to apologise to him. Some
settlement contracts contain a non-disparagement clause, which means she
cannot speak ill of him. Settlements like this can have a chilling effect on
the media too—reporting on the matter now carries the risk of aggravated
damages, because the media company knows about the settlement and her
apology.
When a newspaper settles, it also has the effect of silencing the media
generally—and her. The newspaper might have called his bluff, believing
that he wouldn’t actually sue, and publish anyway. When he follows
through with his threat and sues the newspaper, he will claim that she lied.
The newspaper might choose to settle for commercial reasons: proceedings
are too expensive, their legal budget is under pressure, or maybe they just
want to move on to the next story. But when the organisation decides to
settle, it implicitly says that her allegations are not true and she lied—or
that’s what he will say—which warns off any other journalist who might
report it. In fact, what it often actually means is not that she lied, but that
lawyers have adjudged that her allegations couldn’t be substantiated to the
level of evidence required in court or they couldn’t afford to fight it. But he
will be able to claim it means she lied. Sometimes the settlement requires a
public apology, which you will see printed in the newspaper. Where does
this leave her? She will be silenced too—she won’t be given another
platform to tell her story, and risks being sued herself if she finds one.
Once the matter goes to trial, the problem in media coverage arises that
we are familiar with in criminal cases: the media is protected from being
sued by providing a ‘fair and accurate report’ of proceedings. This means
they’ll be reporting both sides of the story, giving his legal team the
opportunity to spin all kinds of narratives and attack her credibility. The
reporting shifts from allegations of sexual assault, domestic violence or
misconduct to become a sensationalised drama in the media, which repeats
and perpetuates many of the harmful myths, sexist tropes and stereotypes
raised in court in his defence.
Women we spoke to explained the costs that speaking out had had on
their private lives. Domestic violence allegations made in a family court
context are often private and confidential; in the criminal courts, she will
have anonymity if she wants it and may seek additional protections while
she gives her evidence. But once a woman is sued in libel her identity—
along with the allegations—will usually be openly reported. That was the
case for Nicola Stocker: newpapers reported on the libel proceedings,
including the intimate details of their marriage, and journalists doorstopped
her and her family. Newspapers will print her name and her picture, and
report on the allegations made, and the libel trial becomes a form of
entertainment.
Amber Heard’s testimony in the US defamation trial—including about
domestic and sexual assault—was broadcast live on TV and online,
published around the world millions of times and mocked on social media.
Women have told us how the publicity associated with defamation cases is
particularly difficult for their children. In Nicola Stocker’s case, fewer than
ten people had seen her original Facebook post about the alleged assault.
Once the libel trial was underway, the allegation and details about her
marriage were reported in the national press.
If he wins, then the silence will continue—and potentially be permanent.
In jurisdictions like Australia and the United Kingdom, he will also ask for
an injunction, to prevent the allegations from being repeated, and if she or
anyone else does say it again, they will be in contempt of court.
If he loses the libel claim—she will be free to speak, finally. He will have
to pay her legal costs or those of the newspaper (not in the United States,
but in the United Kingdom, Australia and other ‘adverse costs’
jurisdictions). This is only fair, since he brought the proceedings in the first
place, but there are no reparations available to her. No damages will be
awarded to her for the suffering he put her through in suing her for
defamation or for her silencing. He can use the law to silence her for years
—for the cost of paying her legal fees. She can only claim damages against
him if she can countersue him for defamation.
In some jurisdictions, the publication can lead to a criminal defamation
prosecution against her and/or the journalist who published her story. A
charge of criminal defamation—which exists in Colombia, India, Japan,
Uganda and many countries around the world—means that women and
journalists not only face the risk of having to pay damages, but could also
face police investigation and jail time. In Japan, for example, there is no
truth defence to a charge of criminal defamation: you could face prison for
publishing a truthful allegation that harms the honour of the accused
perpetrator. These antiquated laws are being used to target journalists and
women, criminalising those who speak out instead of the perpetrator of the
abuse.
Bizarrely—or perhaps predictably—in some cases, journalists reporting
on MeToo stories have told us that the criminal investigations in their
defamation cases moved incredibly quickly, with police calling them in to
be interrogated just weeks after an online publication. This is in stark
contrast with how police treat allegations of domestic and sexual violence,
where investigations are slow and (in most jurisdictions) prosecutions are
rare. Instead of prioritising investigations into the claims of sexual
harassment or abuse, police are targeting those who have spoken out about
it or reported on it.
International human rights courts and tribunals have advised countries to
repeal criminal defamation laws for their chilling effect on free speech. But
one media law expert told us how civil proceedings can have an equally
chilling effect. Based on our clients’ experience and what women have told
us, we agree: civil proceedings can ruin your life. This expert commented
that many clients would almost prefer to be sued abroad for criminal
defamation and end up with a €3000 administrative fine, rather than face
half a million pounds in costs and damages in the United Kingdom. The
sheer cost of the proceedings is ‘life-changing’, he told us. He explained
how people embroiled in civil defamation proceedings can lose their house,
while the proceedings themselves take over their lives.
Whatever form of defamation claim women and journalists face, it is
terrifying—and him bringing or even threatening a claim can have the
effect of silencing and chilling speech—and stopping the story.

Understanding is the first step towards winning the game

These are the playbook strategies we see being used all over the world to
stop women and journalists speaking out or publishing claims against
powerful and wealthy men. The law is being weaponised. Too often women
have no idea of what they are getting into when they decide to speak out,
and as a result they are not prepared for the challenges they face when they
do. We want every woman and every journalist to know his playbook—so
that when they do decide to speak out, they are informed.
 Chapter 5

CONTRACTED TO SILENCE

Why did it take decades for allegations against Harvey Weinstein, Jeffrey
Epstein and Bill Cosby to become public?
A culture of victim-blaming, shame and silence? Sure.
Power? Definitely.
Being influential figures who could make or break careers, particularly of
the women they targeted? Absolutely.
But there was another reason—a specifically legal one. These men had
got the women they employed, harassed and/or abused to sign contracts,
promising—usually in return for a sum of money—to remain silent. This is
an NDA, or non-disclosure agreement, and it has been used to protect men
for decades.
Before MeToo, most people didn’t know what NDAs were, let alone
about the widespread practice of powerful men and corporations using them
to silence women who have suffered sexual abuse and harassment. NDAs
have been used to devastating effect, prohibiting women from speaking
about their experiences, isolating victims in silos of silence, preventing
them from warning other women and enabling their perpetrators to continue
their abuse.
In this chapter, we share what we have learned—from both our legal
practice and from our interviews for this book—about the many ways in
which NDAs are used and abused. We’ve talked to women who have been
contracted to silence to show how NDAs work, how power imbalances
come into play and what the impact is on survivors who feel forced by
circumstance—if not by pressure from the perpetrator—to sell and sign
away their freedom of speech. We explain what happens when NDAs end
up in court, and the arguments that can and should be used to protect
women’s right to free speech.

What is an NDA?

A non-disclosure agreement (sometimes known as a confidentiality

agreement) is a legal contract in which a person agrees to keep information
a secret. They were typically used to protect trade secrets, intellectual
property and other commercially sensitive information—so that an
employee or contractor wouldn’t share information with competitors and
the world at large. For example, the recipe for Coca-Cola has been
protected by an NDA for over 100 years. Things like patents, which also
protect intellectual property, go on a public register. But an NDA is a
private document. Once it has been signed, no one except the parties
involved or their lawyers are allowed to access the document. Some NDAs
even include clauses stipulating that you aren’t allowed to talk about the
fact that you’ve signed one—and some women haven’t even been allowed
to keep a copy of the agreement itself.
NDAs aren’t all bad: they have been, and continue to be, used for good
reasons. For example, NDAs are used in national security contracts to
protect sensitive information necessary to ensure public safety. In
journalism, they have been used to protect sources and sensitive
information, including on big data projects where journalistic material is
being shared among people working for different newspapers. But there is
also ample evidence of their abuse in keeping information secret that is in
the public interest.
For years, NDAs were used in the settlement of child sex abuse cases
against various religious institutions, which kept the victims and their
allegations quiet, ensured silence about the perpetrating priests and enabled
them to move parishes and molest children with impunity. An NDA—part
of a research grant contract between the asbestos industry and a leading
research laboratory—was used to force the man who discovered that
asbestos caused cancer to keep his research quiet for decades. How many
children and lives could have been saved if we’d known these facts earlier?
 Our own legal practice and the controversies that have erupted since
MeToo have shown us that NDAs have become the go-to solution for
organisations, corporations, individuals and public bodies to settle cases of
sexual misconduct, rape and abuse, and gender discrimination. NDAs are
included in all kinds of employment contracts, divorce agreements and
settlement agreements resolving all kinds of legal claims, and have been
used to cover up domestic and sexual abuse, as well as sexual harassment
and abuse in workplaces, schools, universities and religious institutions. But
how do they work? And where are the problems?
It is important to note that every contract is different, and the terms of
each NDA must be read carefully to understand their implications. But here
is an overview of the sorts of terms you can expect to see in NDAs.

Contracting yourself (and the world) to silence

When a woman is asked to sign an NDA as part of a settlement over sexual

assault or abuse allegations, it doesn’t just stop her speaking to the media—
she is also unable to talk about her experience with her family, friends and
sometimes even her therapist. Some NDAs require secrecy about the
existence of the NDA itself: so a woman who signs one can’t talk about
what happened, or about the fact she has signed an NDA. It is also common
that the agreement includes a denial by the accused person of all allegations
and that they are permitted to publicly deny the allegations if asked about
them, while the woman is prevented from speaking about the matter or
responding to his public denials.
Non-disparagement clauses prohibit the survivor from ever publicly
criticising her perpetrator, sometimes going so far as to require the survivor
to deny what happened to her if she is ever asked about it, and even to
disparage her own friends if they speak out about what they know about her
abuse.
Even more controversially, some NDAs have included non-cooperation
clauses, which prohibit or limit the survivor from cooperating with law
enforcement in criminal investigations into the perpetrator. This kind of
term is unenforceable: no contract can prevent a woman from reporting to
the police; no court will enforce it and it is unethical for a lawyer to include
terms that purport to prevent or limit cooperation with police. But
unfortunately we know that some women have signed contracts like this
and believed that they were bound by them.
However, there are other clauses that don’t prevent a woman from going
to the police but require her to give notice if she intends to cooperate with
law enforcement over her allegations, or to give notice before she goes to
the police. It doesn’t limit cooperation with police, but it does require her to
give him a heads up. For example, the confidentiality agreement in Johnny
Depp’s divorce settlement with Amber Heard—now public thanks to the
defamation proceedings—required her to give his lawyers 48 hours’ notice
if she decided to go to the police with her domestic violence allegations.
NDAs keep settlements and the misconduct secret, buying the silence of
those who have suffered the abuse and holding them to that silence by
contract. Having such contracts, as Weinstein, Epstein, Cosby and others
discovered, can be very effective in keeping the story of their misconduct
under wraps. Once signed, the NDA financially incentivises silence and
deters women from ever going public by increasing the consequences for
them if they do. As if the existing societal and cultural pressure were not
enough to keep women silent, an NDA renders her story confidential by
way of contract.
Later, if the woman changes her mind and wants to speak out, and/or if a
journalist intends to report her story, an injunction can be obtained from a
court to prevent publication of her story. If she speaks out anyway, she is in
breach of contract and might be pursued for damages and legal costs.
‘Clawback’ clauses can mean that the woman is required to pay back her
settlement sum—the amount paid in damages to compensate her for the
abuse or harassment she suffered—and she might also be liable for the
perpetrators’ legal costs, which can run into hundreds of thousands—or, as
we explain later, millions. Some NDAs have also specified an additional
financial penalty for any breach of the NDA, which can be significant: one
Weinstein contract reportedly included a penalty specified at US$1 million,
which was far more than the women silenced were paid in settlement in
damages for what they had experienced. Her silence was clearly worth
more than the damage he had done to her. In the NDA put in place by USA
Gymnastics in order to keep quiet the abuse by former national team doctor
Larry Nassar, the penalty was US$100,000, which is a lot of money for
professional gymnasts. (Chrissy Teigen offered to pay it to release gymnast
McKayla Maroney from her silence.)
 Journalists and newspapers who are not even party to the contract can be
sued, and so can be silenced by the contract she signed. It is no answer for a
journalist (or, indeed, any person) to say they are not party to the contract
and therefore not bound by it: if there is an NDA, they know that the
information is to be treated as confidential in law and they can face legal
proceedings if they publish that information. Before publication, journalists
might face an injunction to stop publication. After publication, they might
face a legal claim for damages for publishing the confidential information.
All they can do is argue for the public interest in disclosure—and, as we
will explain, the courts have consistently found in favour of upholding the
contract.
Whether you need to contest an injunction application before publication
to enable her freedom of speech, or defend breach of confidence or contract
proceedings after publication, it is an expensive business. In the United
Kingdom, Australia and most places around the world, for reasons we will
explain, there’s a very good chance you’ll lose. Whether you are an
individual woman wanting to speak out or a media organisation with your
own in-house legal team and large legal budget, the cost risk is significant
—often prohibitively so—which means staying silent.
The main reason NDAs are used in this context is to silence. NDAs
silence the person who has made the allegations—and anyone else who
might talk about them. NDAs are often deployed when a woman is
traumatised—by the abuse and/or harassment she has faced, and by the fact
that, in many cases, she has been forced to leave a job she otherwise loves.
NDAs are also often deployed in the context of stressful and expensive
legal proceedings. So for the many women who just want to move on, or for
those who are simply unwilling or unable to go through lengthy and costly
legal proceedings, settlement might be her preferred outcome but often
comes on the condition that she never speak about it again. The point is that
the pressure to sign can be immense and, once signed, NDAs can be very
difficult and expensive to get out of.

The tip of the iceberg

We may never know how many women have been kept silent by NDAs—or
how much evidence of abuse will remain hidden, while perpetrators carry
on with their lives and careers.
NDAs are common in divorce agreements, including where a spouse has
alleged domestic or sexual violence, and in employment contracts and
settlement agreements. NDAs have been used to cover up alleged sexual
misconduct by media figures—from both the right (Roger Ailes and Bill
O’Reilly at Fox News) and the left and liberal (Charlie Rose at NBC and
Matt Lauer from Today)—and by political figures including Donald Trump
and the former New York mayor and presidential candidate Michael
Bloomberg.
It is now the norm for celebrities and prominent people to put in place
NDAs with consensual sexual partners to prevent them from later selling
their story to the tabloids. So pervasive is their use that Billie Eilish sings a
song about making a ‘pretty boy’ sign an NDA after he stays overnight,
which a music review in Nylon described as ‘a weird act of power’. Eilish
says her song was about the dark side of fame—the fact that NDAs are
required at all—but what about the dark side of NDAs? What happens if the
encounter turns non-consensual? If it is considered ‘a weird act of power’ to
have a consensual partner sign an NDA, then what should we say about the
powerful men and corporations requiring women to sign contracts to ensure
that they never speak about the abuse they have suffered?
And it’s not just celebrities and public figures: NDAs are also being used
in parliaments, in universities and in other public institutions. Around the
world—from Australia to Canada to the United Kingdom, Ireland and
beyond—religious institutions from Hillsong to the Church of England have
included NDAs in settlement agreements with women and child sexual
abuse survivors, prohibiting them from speaking about their experiences.
In the United States, Congresswoman Jackie Speier revealed that the US
House of Representatives had paid more than US$17 million to settle 260
claims of harassment over the twenty years before 2017 (a figure that
included sexual offences as well as harassment based on race, age or other
factors). In the United Kingdom, between just 2017 and 2019, British
universities had spent more than £90 million on settlements that included an
NDA related to sexual assault. The House of Commons has also used
NDAs in settlements with former staff. The Guardian reports that NDAs
have been widely used to silence women in cases of pregnancy-related
discrimination at work.
 In Australia in 2020, Senator Deborah O’Neill used parliamentary
privilege to air testimony from a whistleblower and former employee of
AMP, a large financial services company in Australia and New Zealand,
after a sexual harassment scandal. The young woman reported that, after
reporting sexual harassment by several senior male executives, one was
promoted while she faced retribution and was told she would lose her job if
she did not sign an NDA. In a clear articulation of the pressure women face,
she explained: ‘I had run out of funds to pay my lawyers and I was
physically and psychologically destroyed, so I signed.’
More and more stories about NDAs are being reported—many of them
anonymously, because of the legal risks for women who speak out in
violation of their agreement.

Rich man’s justice

From Weinstein to Epstein to Cosby to R Kelly, secret settlements including

NDAs have been used to resolve allegations of rape, sexual assault and
harassment, which kept the matters secret and enabled the men’s conduct to
continue, sometimes for decades, before they faced any criminal
consequences. NDAs have allowed men who have behaved abusively—and
potentially criminally—to remain in their jobs or move to other workplaces
without any information about what they had done being revealed, placing
others at risk and enabling them to do it again (and sometimes again and
again).
‘It is a classic case of rich man’s justice,’ said prominent US lawyer
David Boies, himself a notorious go-to lawyer for the rich and powerful.
Boies acted for Weinstein but also represented Virginia Giuffre in her legal
claim against Prince Andrew. He also represents two survivors who signed
NDAs with Epstein. Boies has claimed that as many as eight dozen women
had signed NDAs as part of secret settlements after being groomed and
abused by Epstein.
However, lawyers for some of Epstein’s other victims have made clear
that they ‘refused to allow Epstein to buy control over his victims’ by not
allowing their clients to sign NDAs as part of the settlement of their civil
claims. These women can talk about what happened to them if they choose
to, and are prevented only from revealing the amount they were paid. This
underscores the fact that NDAs do not have to be accepted by default—and
that survivors should get robust, independent legal advice. However, some
of Boies’ clients are so bound—and many of Epstein’s staff are bound by
NDAs in their employment contracts, and so are prevented from speaking
about what they saw while working for him. Despite what many have
claimed, Epstein’s death in prison did not release anyone from their NDA
obligations and it is reported that the attorney general of the Virgin Islands
has declined to release them from those contracts.
Bill Cosby used NDAs as well. Andrea Constand was friends with Cosby
and visited his home one evening in 2004 to discuss a possible career move.
Cosby gave her what he told her were some herbal remedy pills. She passed
out and says that she came in and out of consciousness, unable to resist him
as he raped and assaulted her. Constand says it took months for her to make
sense of what happened, but she eventually went to the police in 2005.
Montgomery district attorney Bruce Castor declined to prosecute, saying
there was not enough ‘credible and admissible’ evidence to merit criminal
charges: her word was not enough. Constand then sued Cosby, and in his
deposition in her civil case he admitted to drugging and assaulting her. They
reached an out-of-court settlement of US$3.38 million, but she also had to
sign an NDA and the court documents were sealed—and remained secret
for eleven years. For over a decade, she remained silent.
It wasn’t until women began speaking out in 2014 and 2015 that
Constand learned that she wasn’t alone: as NBC reported, 60 women spoke
out, accusing Cosby of committing a variety of offences over the past 50
years, including sexual assault and rape. Only through their coming
forward, and the efforts of lawyers and Associated Press journalists, were
the court documents—and Cosby’s admission in Constand’s case—
eventually unsealed in 2015.
In releasing the documents, the court found that Cosby’s right to privacy
was outweighed by the public interest in disclosure, given the number of
allegations made against him, and by his public denials and his public
profile. As CNN reported, Constand’s case was the only one—out of the 60
known cases against Cosby—that wasn’t time-barred by the statute of
limitations. So hers was the first and only criminal prosecution that could
take place. If all those women hadn’t spoken out and the media hadn’t
pursued the documents, the evidence would have remained sealed and
Cosby would not have been prosecuted.
 Cosby was convicted by a jury in 2018 and sent to prison for ten years.
However, Cosby walked free after serving only three years. He successfully
appealed the conviction, arguing that his due process rights were violated
because his admission was made only after an earlier prosecutor had told
him he wouldn’t face criminal prosecution.
Among the many headlines related to Cosby’s trial, conviction and
release from prison, one story was almost lost. Just before his trial went
ahead, Cosby sued Constand, her lawyers and media organisations for
violating her NDA. Constand and her lawyers were accused of breaching
her NDA by voluntarily cooperating with the criminal investigation.
Constand was also accused of violating her NDA because of a media
interview she gave to The Toronto Sun about her case, because of
statements by her and her lawyers criticising the 2005 decision not to
prosecute Cosby, and because of two tweets she posted in 2014, in which
she said: ‘I won’t go away, there is a lot more I will say,’ and ‘It’s not that
everybody just forgot about it, truth is nobody cared.’ Cosby sought
damages and ‘disgorgement of profits’: that is, the entire amount he had
paid her in settlement of her civil claim over the assault.
In motions to dismiss filed by Constand, her lawyers and the media
outlets, the judge ruled that she and her lawyers could not be sued for
cooperating with a criminal investigation, even if their cooperation was
voluntary—that part of the NDA was unenforceable because it was against
public policy to inhibit women from reporting assaults and assisting police
and prosecutors. Importantly, however, the claims against her for speaking
to the media and for her tweets, even though they did not reference Cosby,
were allowed to go ahead. Cosby later withdrew those claims, perhaps
because of the adverse publicity of suing her for publicly criticising the
earlier decision not to prosecute him while he was facing trial for sexually
abusing her. But we don’t know why Cosby withdrew the case—or whether
the court would have upheld Cosby’s NDA contract or found that her
speech was protected and in the public interest.
Constand has now written a book, The Moment: Standing up to Bill
Cosby, speaking up for women (2021). In her book and in interviews, she
has explained her ordeal, the pain she felt at being silenced by the NDA and
how important it was for her to hear from a jury that they believed her. She
is donating a portion of the proceeds from her book to sexual violence
survivors and has vowed to work to ‘close the legal loopholes’ that enabled
Cosby to walk free. Here, we are more interested in the legal agreements
that enabled Cosby to keep his offences quiet for so long.
This is not all old news—more and more stories are emerging. In 2021,
when the footballer Cristiano Ronaldo returned to play for Manchester
United, Level Up—a feminist group—organised a protest at his first match.
A plane flew over the pitch with a banner reading ‘Believe Kathryn
Mayorga’. Level Up said it wished to send ‘a message to football that rape
allegations can’t be kicked off the pitch’. Mayorga claims she was raped by
Ronaldo in Las Vegas in 2009. When her allegation became public in 2017,
Ronaldo said he ‘firmly’ denied it. But the Level Up protest was not just
about the rape allegation—it was also about the NDA that was used to
cover it up, and ‘the culture of silence around abuse from the football
community’.
Mayorga told Der Spiegel that she reported her rape to the Las Vegas
police at the time. Der Spiegel also reported that her medical examination
after the incident showed injuries consistent with the assault she described.
She also told Der Spiegel that she was too scared to name Ronaldo to the
police because of the publicity that she knew would follow. After Mayorga
asked the police not to move forward with her statement, the police did not
lay charges. She later accepted a civil settlement of US$375,000 from
Ronaldo and signed an NDA. As Der Spiegel would later write, ‘She was
supposed to be invisible, damned to silence. Forever.’ But it was not
Mayorga who would make her story public.
Years later, in 2017, the agreement and other documents related to her
case leaked to the media as part of the ‘Football Leaks’ disclosures, which
revealed tax evasion and murky financial transactions among football’s
biggest stars. Der Spiegel published the initial story about Mayorga’s rape
allegation and the NDA, giving her a pseudonym, ‘Susan K’. When the Der
Spiegel journalist first contacted her for comment, she said, ‘No comment.’
Later, when journalists showed up at her house, she ran away from them.
She couldn’t speak about it because she was bound by the NDA.
When Der Spiegel first reported the story, Ronaldo’s management
agency, GestiFute, claimed it was ‘journalistic fiction’. The GestiFute
statement also discredited Mayorga, saying she ‘refuses to come forward
and confirm the veracity of the accusation’. What they didn’t say was that
she was prevented from doing so by her NDA. Ronaldo’s lawyers threated
Der Spiegel with legal action and demanded it ‘desist from reporting’.
Ronaldo said it was ‘fake news’ and that ‘they want to promote
[themselves] by [using] my name’. But within the leaked material,
according to Der Spiegel, was a document in which Ronaldo appeared to
acknowledge Mayorga’s account of the night—‘She said no and stop
several times’ . . . ‘She complained that I forced her’—and that he had
apologised to her afterwards. His lawyers claimed the document was fake
and the sex was consensual. His lawyers did, however, confirm the
existence of the settlement and the NDA, stating that Ronaldo had only
signed it on legal advice to protect his reputation: it was ‘by no means an
admission of guilt’.
After the controversy broke, and inspired by MeToo, Mayorga decided to
waive her anonymity in 2018 to tell her story to Der Spiegel. She told Der
Spiegel she signed the NDA for fear of retaliation and to avoid the public
humiliation she was now facing since the story became public. As a result
of the leaks, she explained that she had faced immense media scrutiny and
online hate, with comments like ‘as if Ronaldo needs to rape a woman’.
Commentators remarked on how sexism and stereotypes about rape meant
Mayorga ‘became the accused’ because of her allegation against the
‘unimaginable rapist’ Ronaldo.
Armed with more information thanks to the leaks, Mayorga reported
Ronaldo again to the Las Vegas police, filed a new civil claim against him,
spoke out about her experience of the NDA and challenged its validity. For
a contract to be binding, it must be a bargain reached between two parties,
exercising their freedom—which presumes competence—to enter the
contract. Der Spiegel reported that her lawyer claimed she was ‘not
competent to enter into the agreement because of the psychological injury
she sustained from the sexual assault’. But the police did not lay charges.
Her challenge to the NDA failed in court.
Mayorga’s lawyers say she has considered suicide and has suffered
severe emotional and mental damage as a result of everything that has
happened. Ronaldo vehemently denies any wrongdoing, and his career
continues. But the story isn’t going away. The Level Up protest in 2021
raised concern that Manchester United had given Ronaldo a ‘hero’s
welcome’ despite the ‘unresolved rape allegations’. ‘As a society, we can’t
let a woman’s story of rape be silenced,’ they said. ‘We’re sending a
message of solidarity to all survivors who refuse to be silenced.’
Silos of silence: isolating survivors

Like Andrea Constand, many women feel traumatised and isolated by the
NDAs they have signed. In our experience, this is common. We have seen
how victims have been gagged, preventing them from speaking to family
and friends about what happened, from warning others about the
perpetrator, and from seeking solace and solidarity with other women who
have suffered at the same workplace or at the hands of the same man, or
with others who have been silenced by NDAs. We have also seen how
NDAs have had a chilling effect on those wishing to speak up about
wrongdoing, and how victims live in fear of the consequences of breaking
the agreement.
To explain the problem, here is a hypothetical example that draws upon
the kinds of cases we have been asked to advise upon in our practice, but
which have never become public.

Katie worked at a large financial services firm in London, in a job she felt
lucky to get in a highly competitive industry. Her boss, Max, was a big
figure in the finance world. He seemed to take a special interest in Katie’s
career, giving her guidance and inviting her to meetings with big clients,
meetings her peers were left out of. He occasionally made jokes about her
coming back to his hotel room, which Katie laughed off. But then he started
buying her expensive gifts. This included a set of lingerie, which made
Katie feel uncomfortable.
They travelled a lot for work. On one business trip, Max insisted she
come to his hotel room before a work meeting. There, he pulled her in for a
kiss. Even though she said out loud ‘stop’ and ‘I don’t want this’, he
continued, and started to grope at her until she was able to push him off.
On her return to London, Katie went to HR to tell them what had
happened. They immediately offered her a settlement package, including a
confidentiality agreement. In retrospect, she said, she felt like she was on a
conveyer belt, in a process that felt like a ‘well-oiled machine’. But she
wasn’t in a position to know anything more—or whether it had happened to
other women—and she accepted the settlement so she could get out of there
as fast as possible and get on with her life and her career.
A year later, Katie ran into her former assistant and learned that her
successor, a woman, had already left the firm. Katie’s former assistant told
her that she’d overheard an office secretary say, ‘Apparently Max did
something.’ Later, another former colleague who had left the firm in hushed
circumstances, Anna, confidentially admitted to Katie—in breach of her
own NDA—that she had left the firm after Max harassed her, and that she
had heard that Katie’s predecessor had left for the same reasons.
Katie was horrified: she realised that when she was hired, the firm
already knew what Max was doing. Without any warning, she had walked
into what the firm knew was an unsafe workplace. And after Katie had
experienced sexual assault, she had left and, like the women before her,
signed an NDA and kept silent about it. She now realised that this had
enabled Max to do it again to the women coming after her.
This was the reason Katie came to us for advice about what she could do:
she didn’t want to go public, but she wanted to make sure Max was held
accountable. It was clear that the silo of silence that each of these women
had been kept in was enabling him to continue to harass women with
impunity because of his power within the company.

Provisions in NDAs that limit what survivors can say to their friends,
family and therapists have the effect of isolating them from their support
networks and even from accessing medical assistance. In our example, the
silos of silence enabled by NDAs meant not only that Max was getting
away with his assaults, but also that the victims were kept isolated from
each other, prospective victims had no idea what they were walking into,
and Max’s company was getting away with it cheaply. Settlement in
circumstances where one woman has experienced abuse is one thing, but
repeated settlements where the company knowingly places women at risk is
quite another. NDAs meant the women did not know there was a pattern, or
that they had knowingly been put at risk.
Katie might have had an interesting claim, but in our experience, women
in Katie’s position often don’t want to come forward and reopen the painful
experience or begin a legal battle. The old trope that women somehow
benefit from going public with their allegations is nonsense: we see time
and time again that women who have legitimate claims, which could
potentially force the courts to look differently at NDAs, don’t go through
with it because they don’t want to become publicly and permanently
associated with the name of their perpetrator and what he has done to them
—and understandably so. Most also can’t afford it, even if they wanted to
challenge the validity of their NDA. Each of them had every right to accept
their settlement and move on, with the confidentiality that protected them
and their privacy just as much as it protected him.
But how is Max’s company able to get away with it? As a private
company without public disclosure obligations, what consequences are
there for men like Max and the companies they control? What are they
telling their shareholders about the repeated payouts to these women? What
are they telling the tax office, and how are these expenses accounted for?
Are they allowed as tax deducations, to reduce what the company pays into
the public purse? We don’t know.
Placing survivors in silos of silence under NDAs creates a culture of
impunity that enables further abuse. How can we as a society tackle gender-
based violence and workplace harassment if those affected by it can’t talk
about it? In this way, NDAs raise public interest and policy concerns, and
potentially impede governments in their obligations to protect women and
girls.
A parliamentary inquiry in the United Kingdom looked into NDAs in
2018. Jen, together with leading women barristers, made a joint submission
to the Women and Equalities Committee setting out the problem and why
governments need to better regulate the use of NDAs:

[R]evelations of repeated allegations of rape, sexual assault and

harassment against Harvey Weinstein, which it appears were
effectively suppressed over decades through the use of NDAs, have
brought to the fore legitimate concerns about the ways in which these
agreements may be misused so as to gag individuals who have either
suffered or witnessed serious sexual assaults and harassment. The
issues raised include not only the concealment of the original
wrongdoing but also the ways in which the misuse of NDAs may
contribute to a culture of silence and otherwise foster an environment
in which wrongdoers feel that they can continue to act with complete
impunity. The result is that serious and criminal wrongdoing may go
undetected over many years, increasing the pool of victims and
otherwise putting individuals unnecessarily at risk. Importantly, the
misuse of NDAs can not only serve to conceal very serious abuses of
power, but can also constitute a powerful incidence of such abusive
 behaviour. Put shortly, the misuse of NDAs is substantially contrary to
the public interest and is a serious social vice.

Fortunately, there have been women who have been willing to lift the veil
of secrecy on this ‘serious social vice’, so that the public and our
parliamentarians can understand the problem. Let’s hear their stories.

Silence-breakers
I want to publicly break my non-disclosure agreement. Unless
somebody does this there won’t be a debate about how egregious these
agreements are and the amount of duress that victims are put under.
My entire world fell in because I thought the law was there to protect
those who abided by it. I discovered that it had nothing to do with
right and wrong and everything to do with money and power.

These are the words of Zelda Perkins, quoted in The Financial Times on 14
October 2017. It was the first time her story about her NDA with Harvey
Weinstein, which had covered up his sexual harassment and assault during
her time working for him at Miramax, was reported. It was also the first
time anyone subjected to a Weinstein NDA had spoken publicly about the
legal tool that had protected him for so long—and how he had used them.
Back in 1998, Zelda Perkins was just 24 years old. She had a great job at
Miramax Films in London, working in an all-woman team. She had never
aspired to work in the film industry, and she now says that her lack of
ambition in the industry is probably what protected her. But she loved her
job, being paid to read scripts in what she told us was ‘a cool Soho office in
London surrounded by bright, but mostly young, women’. Everything
changed when Weinstein flew in from the United States and she started
working for him directly—but it would take twenty years for her to be able
to tell her story.
In the years that Zelda had worked for Weinstein, she says, he sexually
harassed her and pressured her for sexual favours while at work. But it
wasn’t until the 1998 Venice Film Festival, when her even more junior
assistant told Zelda that Weinstein had sexually assaulted her, that she
resigned and resolved to hold him accountable. Outgunned by his lawyers,
overwhelmed by the power imbalance and dismayed by her available legal
options, she and her assistant ended up settling their claims and signed
NDAs.
As the MeToo movement kicked off in 2017 and allegations about
Weinstein swirled, back in London, Zelda took the decision to speak out,
deliberately breaching the oppressive NDA she had felt forced to sign, to
highlight how NDAs had allowed Weinstein to abuse women with impunity
—and in the hope that her disclosure would encourage others to come
forward.
It certainly did.

Zelda’s story

When Zelda jumps onto our Zoom call, she is flustered. Behind her are
chickens, in the yard of her house in the English countryside—peaceful
green hills and winding roads, her place to return to after campaigning in
the public eye. She has been fighting for laws to reform how NDAs are
used, and for better protection for survivors. It is not always easy, and her
name and face mean she is recognisable—tied, always, to the downfall of
Harvey Weinstein.
We are here to ask her to tell us what happened, in her own words. She
tells us what happened and that the versions she tells to the media are
intentionally sanitised, she says, as she doesn’t want the details to distract
from her message. (Out of respect to Zelda, we are only including the facts
we consider to be relevant to show how NDAs function to perpetuate a
culture of silence and enable impunity, and to show the impact they have on
survivors.)
Before Zelda started working for Weinstein, she was given a warning of
sorts. When she was offered the promotion to work directly for Weinstein,
she was told that she really needed to think about whether she wanted the
job. ‘I had been given a light-hearted, jokey warning,’ she explains. ‘Never
sit next to him on the couch . . . Don’t turn your back on him.’ The only
explicit warning she got was about his temper. ‘We all knew he was a
monster temper-wise, but not any other-wise.’
What Zelda wasn’t told was that sexual harassment and pressure for
sexual favours in the workplace would be common and normalised—
Weinstein would appear naked, grab her and request massages and oral sex.
This was not something that was openly discussed among the women
working for him. ‘We were all isolated. We were all young women. We
were culturally silenced,’ Zelda says. ‘We didn’t want to look weak, or
make a fuss, or look like we couldn’t handle him. But later when [our
silence] became contractual, it was even more powerful.’
Zelda did her best to warn others she interviewed to work with
Weinstein. ‘No one warned me about Harvey. I didn’t know [beforehand
that] he was a habitual abuser, but by then I knew what he did to me.’ So
she began telling young women that he would be inappropriate and they
needed to be robust to be able to deal with him. Years later, after she broke
her NDA and more details of Weinstein’s conduct became public, two
young women wrote to her to thank her: both had declined the job offer
after her warning at their interviews.
For years, Zelda put up with and managed Weinstein’s harassment. She
thwarted his physical advances, developing a variety of avoidance strategies
to do so. In some strange way, she said, she felt she was beating him at his
own power game. But then her junior assistant, Rowena Chiu, came to her
at the 1998 Venice Film Festival, upset, hysterical and in shock: she told
Zelda that Weinstein had sexually assaulted her.
‘It was very clear to me that something had happened,’ Zelda explains. ‘I
was so horrified that I had put her in that position. She was my
responsibility.’
This was the first time Zelda knew of Weinstein physically assaulting
anyone. Rowena, who has since told her story to the media, was scared to
lose what was her dream job. She chose not to report him to the Italian
police. Zelda confronted Weinstein, but he denied it.
Zelda and Rowena both resigned. ‘He has left us with no choice,’ Zelda
said she told Rowena. They both loved their work but they were forced to
leave it behind.
But Zelda wanted to make sure Weinstein was exposed and stopped. She
was told she would need a lawyer. She didn’t know where to start: she was
‘so naive’, she tells us, that she called the Citizens Advice Bureau for help.
In the end, she looked up lawyers in the Yellow Pages and found Simons
Muirhead Burton (SMB), a respected, boutique law firm that was just a few
streets away in Soho. It was after her first meeting with a young woman
lawyer at the firm that she realised how bad her harassment had been and
how normalised it had become. When Zelda told her about what happened
with Weinstein, she says the lawyer ‘was shocked, and I was shocked at
how shocked she was’. Zelda again felt naive, and embarrassed that she had
put up with it.
Her next shock was at the lack of legal options available to her and
Rowena. ‘I genuinely thought if we could go to court, it would all be fine,’
she said. Zelda wanted to expose Weinstein and see him prosecuted in
court. But it wasn’t going to be that easy—the assault had happened in Italy,
a different jurisdiction, and they hadn’t gone to the police. Weinstein, with
his almost infinite resources, wasn’t going to go down easily.
‘I was told that he and his lawyers would try to destroy us and our
families, attack you upways, sideways and backways, find every skeleton in
your closets, bankrupt you and anyone near you, and your legal costs will
be beyond anything you can afford,’ Zelda explains. The women were
advised to seek damages through a mediation process.
Zelda was upset at the time, thinking it was the wrong decision. But she
also took it as a lesson about the law and how it works for rich men. As she
told us, she realised after frank discussions with her own lawyers that it
would be futile for her and Rowena to take him on: she felt it would be ‘just
two silly girls’ word’ against Harvey Weinstein, his power and his immense
resources.
Still, Zelda held out hope. She thought the negotiation process would be
a chance to hold him accountable within Miramax, and stop him from doing
this to anyone else. She wrote out a list of demands, including a new
complaints procedure and that Weinstein go to therapy, and make a big
donation to a rape charity. She was told she should just seek a year’s pay
(£20,000 at that time). At this stage, she had no idea that the matter would
ultimately all be kept secret.
Zelda decided to ask for a huge sum, so that anyone who dug up the
papers (which she had presumed would be on the public record) would see
the money and see it as a big red flag, and in her words ‘indicative of the
crime’. She asked for £250,000. Her lawyers said she was crazy for asking
that much. Within hours of their making the offer, though, Weinstein’s team
accepted it. When Weinstein’s personal lawyer flew out from the United
States to negotiate the details, it reiterated for Zelda just how serious the
situation was.
 However overwhelming and unfair the process felt, and however great
the power disparity, Zelda did claim some wins: the contract included a
requirement that Weinstein attend therapy for a minimum of three years,
and Miramax promised a complaints procedure, as well as a provision
requiring that if there was another complaint against Weinstein within two
years of the contract and it resulted in a settlement of either £35,000 or six
months’ salary, Miramax agreed to report the matter to Weinstein’s bosses
at Disney—or to dismiss him. Zelda doesn’t know whether Miramax ever
complied with those requirements.
Zelda says she honestly did not know, going into the negotiations, that
she would be required to sign a confidentiality agreement—it only came up
in the closing parts of the negotiation, by which time she was too exhausted
to fight. She also didn’t know it was going to be so invasive, or the
obligations so extensive. After a long week of late-night negotiations in
Weinstein’s lawyers’ offices with her lawyer, she and Rowena were split
into separate rooms, isolated from each other, and were asked to write down
every single person they had told about the matter. Zelda refused to name
anyone, and instead spoke in general terms. ‘I felt like we were dealing with
the mafia,’ she recalls. ‘I was really scared of these lawyers and thought
that if I named any of my friends or family, these people would go after
them.’
In the end, each NDA included a short schedule describing friends and
family she had told. Both women had to call the people included in the
schedule and say they were never to discuss the story again, not even with
each other. If the women wanted to go to a therapist, they’d have to sign an
NDA. The same if they saw a lawyer, the police or the tax authorities.
Everyone around these women were now also bound to Weinstein—legally
required to maintain the silence that would protect him for years.
Once the NDA was signed, Zelda and Rowena had one last meeting: with
Weinstein himself. They were led into a room, to sit face to face with the
man who had sexually assaulted one of them. He apologised, but Zelda and
her lawyer were not permitted to take or keep any notes of what he said.
But as reported by Tortoise and as she told us, she did keep a record, in
secret: ‘Sometimes [I] don’t know when its consensual,’ Weinstein said.
By the end of the process, Zelda told us she was devastated and felt she
was pressured into receiving what she now describes as ‘blood money’. She
chased Miramax afterwards to find out if Weinstein was in therapy and to
make sure the complaints process was in place, but said they stalled,
refusing to give her any information, and eventually she gave up. She also
had trouble getting work because of the stories circulating in the industry
about what had happened. To get away from it all, she moved to Central
America.
Yet Zelda was deeply troubled by what had happened, and she found that
the matter followed her. Over the years, journalists contacted her to
corroborate allegations against Weinstein, but she kept quiet. That was until
2013, when she felt she could not stay silent any longer.
A journalist from The New Yorker told her that Weinstein was done for:
Italian model Ambra Gutierrez had been assaulted by him, and had gone to
the New York Police Department to report it. She agreed to be part of a
sting operation aimed at getting Weinstein to admit to what he had done.
She wore a wire, and caught him admitting it on tape. ‘Finally,’ Zelda
thought. ‘He is going down.’
Zelda decided to break her NDA to speak to the journalist to back up
Gutierrez’s story. But Weinstein’s lawyers went into overdrive, hiring
private investigators to dig up information on Gutierrez and discredit her.
They launched a smear campaign, accusing her of being a prostitute and
saying she was enacting revenge. Upsettingly, it worked. No charges were
laid. Dragged through the mud, Gutierrez agreed to settle, and joined the
many other women in their terrible little club: people who signed
Weinstein’s NDAs.
Weinstein’s team suspected that Zelda had talked, and she started getting
a lot of calls from ‘journalists’—who it turned out were actually
Weinstein’s investigators, and former Israeli spies. Zelda would later
discover that Weinstein’s lawyer, David Boies, had hired the firm Black
Cube to keep watch on Zelda and others who might break their NDAs. The
actor Rose McGowan and other women were also contacted and harassed in
this way.
When women started coming forward to journalists with their stories
about Weinstein in 2017, Zelda was first contacted by journalists Jodi
Kantor and Megan Twohey. Ronan Farrow also later reached out to her and
told her that he was going to report more stories, including rape allegations.
Zelda was floored: this was the first time she had heard Weinstein had been
accused of rape. She knew what Rowena had accused him of back in 1998,
but that hadn’t gone as far as rape.
 This revelation really affected Zelda, and she told us that she started to
understand that her silence had enabled Weinstein to continue to act with
impunity—and to go on to do worse. It was then, she said, that she realised
‘this piece of paper is protecting a rapist’. She decided then and there that
she was going to speak out: she was willing to break her NDA if she had to.
She wanted to show the secretive legal processes that were being used by
the rich and powerful to silence women about abuse and harassment.
Zelda wanted to take legal advice, but she had a problem: she did not
have a copy of her own NDA, which she needed if she was to figure out a
way she could talk to the media. It is Kafkaesque, but it’s important to
know that this was not unusual. All Zelda had was a document summarising
her obligations under the contract. She called up her former law firm to get
a copy of the agreement, but she was told she was not permitted to have it.
She asked around for recommendations for lawyers, but she told us she was
‘stonewalled’ and that she wasn’t allowed to show it to another lawyer.
Zelda said a lawyer friend made some inquiries for her and was told,
‘You’ve got to be fucking joking—we wouldn’t touch that with a ten-foot
pole—we get these signed all the time for our clients.’ Firm after firm said
that they wouldn’t act for her. Zelda realised there and then that ‘this is a
stitch-up—and it’s not just a Weinstein problem; this is a law problem’.
It was a huge decision for Zelda to speak out. In doing so, she had to
calculate the risk: would Weinstein go for her in the midst of the unfolding
scandal as more and more women came out against him? ‘The people at
[The Financial Times] basically told me, “You’re fucked if you break this
and we can’t protect you, except in the court of public opinion,”’ Zelda tells
us. She thought, ‘Well, fuck it, I’ve got to do it and this is all I’ve got.’ The
Financial Times put the story to Weinstein and his lawyers. According to
Zelda, they threatened to get an injunction and sue for defamation. The
newspaper considered the risk and published anyway.
And it was the right call, because Weinstein didn’t sue. But what if she
had spoken out earlier, before the MeToo scandal engulfed Weinstein?
Would his lawyers have made a different calculation and sought that
injunction, which would have prevented Zelda, The Financial Times and
any other media organisation from reporting her allegations?
After Zelda’s story was published, Weinstein could have sued Zelda for
breach of contract for speaking to the media—and he might have won. He
also could have sued her for defamation for the accusations she publicly
made about the reason for the NDA—Rowena’s allegations that he sexually
assaulted her—and she would have faced immense legal costs and the usual
evidential difficulties to prove her allegations about him in court. But by
then his credibility was shot by the sheer number of women coming
forward, the weight of evidence and the similarities of the women’s
accounts—and by then, as The Financial Times had rightly noted, public
opinion was on her side. The situation had changed drastically since 1998,
when Zelda and Rowena had signed their NDAs and been advised not to
take him on: in a battle of credibility in 2017, the women would win.
Rowena would later take the decision to speak out about her experience too.
While the situation had changed, legally nothing had changed.
After Zelda spoke out, it emerged through the reporting of The New York
Times and The New Yorker that Weinstein had used NDAs to keep all kinds
of sexual misconduct quiet, and that employees from Miramax had felt
silenced from speaking out about other wrongdoing at the company.
For Zelda, the process of going public with her experiences has been
cathartic: ‘Once I started speaking out, I found my voice . . . I found
myself.’ And she began campaigning to end the abuse of NDAs—a
campaign that continues to this day.

Undercover reporting to reveal NDA abuse

Soon after Zelda spoke out, another NDA scandal would break, after which
Prime Minister Theresa May announced a parliamentary inquiry into the
use of NDAs in the United Kingdom (the inquiry in which Zelda’s evidence
and Jen’s legal submissions would later play a key part). The story hit the
headlines thanks to the work of two women undercover reporters, Madison
Marriage and an unnamed colleague, again from The Financial Times.
Marriage replied to an advertisement for waitresses for the annual
Presidents Club dinner. The men-only charity dinner, attended by 360
figures from the British business, politics, finance and entertainment
worlds, had been running for 33 years and had raised £20 million for
children’s charities. FTSE 500 companies sponsored tables and sent their
male executives. The dinner held in January 2018, hosted at the Dorchester
Hotel, would raise £2 million. But charities would soon reject the funds the
Presidents Club had raised.
 The advertisement sought ‘tall, thin and pretty’ women to serve as
hostesses at the event. Marriage wrote for The Financial Times that she was
warned after her initial interview for the job that the women might have to
put up with ‘annoying men’, who will try to get them ‘pissed’. Two days
before the event, Marriage and the other women were informed their
phones would be ‘safely locked away’ at the event and that their boyfriends
and girlfriends were not welcome at the venue. They were advised to bring
black ‘sexy shoes’, black underwear, and do their hair and make-up as they
would to go to a ‘smart sexy place’. Upon arrival at the event, dresses and
belts were supplied, which were short and tight, resembling corsets. The
women were being paid £150, as well as £25 for a taxi home, to work from
4 p.m. until the early hours of the morning. Most of the women were
students working their way towards careers in law or finance, while others
were part-time actresses, dancers, models and performers who did hostess
work to pay the bills and get by. All were contract workers.
But before the women were handed their skimpy uniforms and had their
hair and make-up done, they were handed a five-page document to sign: an
NDA. They were forced to sign this contract before the event started as a
condition of work. They were not given time to read or consider the terms
—let alone to seek independent advice on those terms—and they were not
allowed to keep a copy of what they had signed.
Given who was in attendance and what went down at the event, it is no
wonder the event organisers wanted the women contracted to silence. As
The Financial Times reported, the attendees and supporters of the event was
like ‘a roll call of British wealth and business influence’. Hosting the event
was the comedian and author David Walliams, and attendees included
businessman Sir Philip Green, cabinet minister Nadhim Zahawi (at the time
the Under-Secretary of State for Children and Families), and Lord
Mendelsohn, a Labour peer.
In a later piece for Marie Claire, Marriage provides a vivid description of
what it was like to work at the event, which she describes as ‘grotesque’.
The MC opened the event by welcoming the men ‘to the most un-PC event
of the year’. Women were told to line up and then parade across a stage in
front of 360 ‘braying’ men, as they played the song ‘Power’ by Little Mix,
a song choice Marriage described as a ‘cruel irony’, given the immense
power imbalance between the young women and the powerful men in
attendance.
 The funds for charity were raised by an auction that included items such
as lunch with Boris Johnson (then the foreign secretary). Marriage also
explained that it included items like ‘a night at Soho’s Windmill strip club,
and a course of plastic surgery with the invitation to “add spice to your
wife”.’
While the accompanying brochure included ‘a full-page warning that no
attendees or staff should be sexually harassed’, it is clear from Marriage’s
reporting that numerous men either failed to read the instructions or simply
ignored them. She writes ‘many of the hostesses were subjected to groping,
lewd comments and repeated requests to join diners in bedrooms’ in the
hotel—by men considered to be pillars of society. Hostesses reported men
forcefully pulling them onto their laps and ‘repeatedly putting hands up
their skirts’ and that one attendee had even ‘exposed his penis’ during the
evening. At the after party, one of the hostesses was grabbed, poured a
drink and told, ‘I want you to down that glass, rip off your knickers and
dance for me.’
Marriage’s story was published in January 2018 and resulted in national
headlines off the back of the controversy from Zelda speaking out about
Weinstein’s NDAs. It wasn’t just Weinstein using NDAs to cover up
misconduct; this was happening in the United Kingdom. Marriage has since
written that the impact of her reporting went further than she ever could
have imagined. Within days, the Presidents Club Charitable Trust was
closed, its trustees stepped down from a number of government roles and
directorships, the Charities Commission announced an investigation,
charities refused to accept the promised funds, and those which had already
received funds promised to improve their due diligence procedures. The
story was debated in parliament, and Prime Minister May said she was
‘appalled’ by the behaviour of the attendees. Another prominent woman
MP, Jo Swinson, declared the event to be ‘stomach-churning’ and evidence
of the ‘sexist culture still alive and kicking in parts of the business
community’.
Marriage wrote about her desire that change would follow her reporting:
that men in positions of power would change how they treat women and
that they would be held accountable for their actions. But her story would
also spark a national conversation about the use of NDAs and the need for
better protections for contract workers who face sexual harassment. A
public petition to reform the law to give greater legal rights to workers who
experience sexual harassment in the workplace followed—and gained more
than 100,000 signatures. And, as we noted above, Prime Minister May
announced a parliamentary inquiry into the use of NDAs.

Jen’s perspective

The allegations against Harvey Weinstein in 2017 were no surprise to me—

the only surprising thing was that it took so long for them to reach the
public domain. It was an open secret, and one so widely known that I’d
even been warned by friends at the Cannes Film Festival before we headed
into parties: ‘Watch out for Weinstein—never be in a room alone with him.’
Yet Zelda’s story was something new: it wasn’t just about the sexual
harassment and abuse, but the legal tools Weinstein had used to keep this
‘open secret’ a secret. In telling her story, Zelda gave the public an
unprecedented look into the negotiations that lay behind Weinstein’s NDAs.
I remember reading the Financial Times story and being struck by two
things: Zelda’s bravery in speaking out in breach of her NDA, and the risk
appetite of the newspaper in publishing her story. Both Zelda and The
Financial Times faced the possibility that Weinstein would sue, with
potentially serious cost implications. I respected the newspaper’s in-house
counsel and editor for the decision they took to publish.
It was the right one: by then, Weinstein faced numerous allegations, and
the pattern they created was buttressing the credibility of each woman
speaking out. It was clear that the NDA was the tool by which Weinstein
had kept his misconduct from the public, and from the prosecuting
authorities for decades. There was a public interest case to be made.
Weinstein threatened to seek an injunction, but ultimately he didn’t—which
meant the newspaper could publish—and afterwards he did not sue. But
hindsight is a wonderful thing. More risk-averse editors and lawyers would
have made the call not to publish. Indeed, many before them had known of
but not published the story.
The next time I had cause to turn my mind to Zelda’s case was a few
months later, at a Christmas party in North London. The indomitable Mark
Stephens, with whom I had started out working in media law in London
some years before, asked me over to a quiet corner. He had a new client:
Zelda Perkins. He wanted to know what I thought.
 Zelda had not found a lawyer willing to take on her case—until Geoffrey
Robertson QC referred her to Mark, who is not the type to back down from
rich and powerful men and their teams of lawyers. We shared our outrage at
how she had been treated and the contract she had felt forced to sign. At
this stage, there hadn’t been much legal analysis of her situation, nor had
Weinstein sued—but would he? We mused that, on basic contractual
principles, the agreement could be deemed to be unenforceable for public
policy reasons: from what we knew of it, the contract had covered up a
potential crime or crimes, and enabled ongoing abuse. And wasn’t there a
higher free speech principle at play here? It was an argument Geoffrey had
raised. The public interest in women being able to exercise their freedom to
speak about their abuse, and the public good of preventing perpetrators
from continuing to abuse with impunity, should surely trump any contract.
But, at that time, no court in the United Kingdom had considered this
argument. It is one that academics—such as Dr Jeffrey Gordon of the
University of Sydney, in his article, ‘Silence for Sale’ (2020)—are now
making, and an argument that is increasingly being accepted by courts in
the United Kindgom, the United States and elsewhere. But the most
pressing question at that time was this: how could Mark properly advise
Zelda when she was not even permitted to have access to the contract she
was bound by?
Sometime later, Mark invited me and a group of leading women
barristers to meet Zelda, hear her story and consider an independent
submission into the UK Parliament’s Women and Equalities Committee’s
investigation into NDAs. I had seen Zelda’s powerful interviews on
television, but when I walked into the room, there she was, even shorter
than I am, swamped by Mark’s large conference room and framed by
sweeping views of the Thames and St Paul’s Cathedral. She is fierce, and
fiercely intelligent. I went away inspired by her courage and her
commitment to create change for other women.
Later, we filed a submission setting out what Zelda already instinctively
knew: how the law is failing women when it comes to NDAs. Zelda
addressed the committee in Westminster, and I watched online as she told
her story, peppered by questions from feminist MPs. I knew how nervous
she had been, so I wrote to her to congratulate her: she had nailed it. I
continue to marvel at her indefatigable campaign for law reform, so it is a
privilege to be able to include her story in this book.
A sorry story: Public inquiries and calls for reform

After these women spoke out and reported on NDAs, and exposed the
misconduct and abuse they were covering up, various parliamentary and
regulatory inquiries were conducted (and are ongoing) in the United
Kingdom, the United States, Australia and elsewhere around the world. But
in Australia and the United Kingdom, despite recommendations, no
legislative changes have been made.
The Women and Equalities Committee of the UK Parliament first looked
at NDAs as part of its inquiry into sexual harassment at work in 2018, and it
then conducted a second, follow-up inquiry specifically into NDAs; its
findings were published in 2019. Zelda gave evidence before the
committee, telling her story, and Jen, together with Anya Proops QC,
Aileen McColgan QC and Natalie Connor, made a written submission to
assist the inquiry, setting out how NDAs are used and misused, explaining
the legal issues arising with respect to NDAs in the United Kingdom, and
suggesting a range of reforms the committee could consider.
In its final report, the committee raised concerns that NDAs had been
used unethically by some employers and lawyers to silence victims of
sexual harassment, and that there was insufficient oversight and supervision
of their use. In highlighting the chilling effect of NDAs in silencing victims,
the committee cited Jen’s joint submission on the main risks of the
unethical use of NDAs: ‘individuals will not report serious wrongdoing to
the police; will feel compelled not to assist with relevant law enforcement
investigations or prosecutions; and will feel unable to speak openly and in
the public interest about serious wrongdoing, thus inhibiting public
awareness and debate’.
However, the committee also recognised the value of NDAs for some
victims. As Jen and her colleagues had emphasised, ‘there may be times
when a victim makes the judgment that signing an NDA is genuinely in
their own best interests, perhaps because it provides a route to resolution
that they feel would entail less trauma than going to court, or because they
value the guarantee of privacy’.
Banning NDAs altogether is clearly not the way forward: any protective
regime must protect all victims, so it would be problematic if
confidentiality is not available as an option for those who want to choose to
be protected by the confidentiality NDAs afford. Removing the option of
confidentiality could, in fact, deter some women from reporting. But
confidentiality can be achieved by specifying it in contracts—or by
requiring it in legislation ensuring women in these circumstances
anonymity. The committee challenged the status quo of considering NDAs
as intrinsic to settlement agreements or employment contracts, and made
clear that it was unacceptable that sexual harassment and abuse were being
covered up by NDAs. But it stopped short of recommending that they
should not be used at all.
A lot of NDAs include clauses that would be unenforceable if they were
brought before the courts—including, as we have mentioned, any clause
that purports to prevent or limit reporting to the police. But how many
women who signed one are aware of this? Zelda did not properly
understand her rights—and remained silent for years for fear of the
consequences. How many more women were in Zelda’s position? How
many women felt pressured into signing an NDA? The committee
concluded that the effect of the clauses was that women were afraid to
speak out—even if, legally, they were allowed to. Irrespective of the legal
position, the committee found that many women feared criminal and civil
sanctions if they reported to police, sought legal advice or spoke out.
Who are NDAs being used for? The committee raised concern about
NDAs being used to protect ‘rainmakers’, or people in key positions of
financial influence. Their behaviour is being excused: companies are using
NDAs to settle and silence allegations rather than properly investigate them,
and using their power and resources to draw out legal disputes to pressure
women to settle and sign NDAs.
The committee did make a number of recommendations, including public
education about NDAs to ensure people better understand their rights, and it
demanded that legal professional regulators take action against lawyers if
they misuse NDAs, especially where they are trying to prevent or deter
victims from going to the police. The committee also recommended
providing clarity on permitted terms, ensuring that NDAs do not prevent
discussion of sexual harassment and abuse while keeping protections for
victims who wish to protect their privacy, ensuring adequate financial
support for employees to take independent legal advice on NDAs, and
improving corporate governance and accountability on sexual harassment.
This is important: what the committee had to say about NDAs matters, and
has since been cited in an important court case about NDAs and free speech
—ABC v. Telegraph in 2018—a case about the enforceability of Sir Philip
Green’s NDAs and whether the media could report the story.
But it isn’t enough. As Jen and her colleagues told the committee, ‘There
is no doubt but that the misuse of NDAs is a serious social evil, and one that
requires a robust legal response.’ No legislative changes have been made to
date and, as we explain, the case law has developed since Zelda spoke out
in 2017, but it remains problematic.
In response to the controversy after Zelda went public, the Solicitors
Regulation Authority in the United Kingdom published new guidance and
‘warning notice’. It made clear that a lawyer was violating their
professional ethical duties by improperly pressuring parties to sign NDAs.
But the warning extended beyond clients—they also had to warn the
lawyers who were using NDAs to cover up their own sexual misconduct.
Meanwhile, Weinstein’s solicitor, Mark Mansell from Allen & Overy,
was required to give evidence to the parliamentary inquiry about the terms
of the NDA Zelda had been required to sign; Zelda later made a
professional complaint against him. However, in January 2021, the Law
Gazette reported that proceedings were stayed on the basis of Mansell’s ill
health. The Solicitors Disciplinary Tribunal reportedly said it was of
concern that Mansell continued to practise law but could not appear before
a disciplinary hearing over allegations of his misconduct.
In Australia, it was much the same story. In 2021, there was a Human
Rights Commission investigation into sexual harassment in the workplace
and the use of NDAs. As part of this, the commission asked for large
employers to temporarily waive NDAs so survivors could come forward
anonymously for the inquiry. Only 39 companies did so. This secrecy is a
problem. The Human Rights Commission report Respect@Work noted—as
we saw in the United Kingdom—the benefits of NDAs in protecting the
confidentiality and privacy of victims and in helping to provide closure, but
also the concerns that NDAs contribute to a culture of silence. However, the
commission merely recommended the development of guidelines
identifying best practice principles on the use of NDAs in workplace sexual
harassment matters. Glaringly missing from any of the various official
inquiries and their recommendations was what should happen for women
who have signed NDAs but now wish to speak publicly about their
harassment or abuse. It appears to be accepted that women can sell—and
contract away—their right to freedom of speech.
 For those who have signed an NDA and now want to speak out, there are
few—if any—protections. In some jurisdictions, including the United
Kingdom, there is whistleblowing legislation that can, in some exceptional
circumstances, permit an employee to make ‘protected disclosures’
(including about sexual misconduct) to the media. But as Jen and her
colleagues pointed out to the Women and Equalities Committee, these
protections are very limited. While the committee recommended extending
the regulators to whom disclosures could be made without violating an
NDA, this did not extend the rights of women to speak out publicly to the
media or on social media.
Various recommendations were made in public submissions to limit the
use of NDAs in cases of gender-based violence altogether. For example, in
the United Kingdom, the Centre for Women’s Justice argued that NDAs
should only be allowed to protect women’s identities, and should not be
permitted to prevent discussion of the facts about the harassment or abuse.
In Australia, the Women Lawyers Association of NSW recommended that
NDAs should not be permitted at all in respect of sexual abuse or
harassment. Neither of these proposed recommendations was adopted.
This means that for women who have signed an NDA and wish to speak
out about their experience of gender-based violence, we must consider how
the courts will treat their cases if they are sued. If you’ve signed an NDA
and later want to speak out, all you can do is argue that your disclosure is in
the public interest, and more important than the public interest in upholding
the contract. Will the court protect your freedom of speech?
The answer is the infuriating answer clients so often receive from
lawyers: well, it depends.

Sue me: NDAs in the courts

A disappointing recent decision from the UK courts has made the situation
more difficult for women and for journalists. The Court of Appeal found
that, once an NDA is signed, the public interest in upholding the contract
generally outweighs the public interest in women speaking out.
This was the case brought by Sir Philip Green, the billionaire and former
owner of Topshop. In October 2018, The Daily Telegraph reported that it
had been gagged by a leading businessman from reporting MeToo
allegations, running with the headline ‘British #MeToo claims which cannot
be revealed’. They could not be revealed because of an NDA.
Sir Philip sought an interim injunction to prevent publication. Because of
the NDA, there was both an ‘open’ judgment and a ‘closed’ judgment. The
open judgment was light on details: it merely explained that on 16 July
2018, a journalist working for the Telegraph emailed the claimants (who we
now know to be Sir Philip and his company) saying that she intended to
report ‘certain matters’. On 18 July 2018, lawyers for ‘the claimants’ sent a
letter threatening an injunction, and asked for an undertaking that the article
would not be published. A rapid hearing was arranged for 23 July 2018.
The judge concluded—in a great decision for the media and women
wanting to speak out—that ‘the public interest in publication outweighs any
confidentiality attaching to the information’, and denied the injunction. The
claimant appealed, which meant his identity and the allegations of
misconduct against him remained a secret, for now. All the identifying, and
important, details were in the closed judgment. But the interest of the media
was piqued, and speculation began on who exactly had sought the
injunction—and what he was seeking to cover up.
And on appeal, he won. The Court of Appeal made clear the importance
of protecting and upholding contracts and duties of confidence,
emphasising the public interest in enforcing NDAs so that others entering
such contracts can ‘be confident that they can disclose, without risk of
wider publication, information that it is legitimate for them to wish to keep
confidential’. Freedom of speech can be limited in ways ‘necessary in a
democratic society’. Where a woman has signed an NDA, the court will
generally put more weight on protecting the contract over protecting her
right to freedom of speech. The rationale is that she can choose to sell her
right to speak—and if she does, she must be held to it. But here comes the
infuriating ‘it depends’. The question the court must ask themselves in each
case is ‘whether, having regard to the nature of the information and all the
circumstances, it is legitimate for the owner of the information to seek to
keep it confidential or whether it is in the public interest that the
information should be made public’.
In Sir Philip Green’s case, it was on this question—and the balancing of
the public interest between the right to contract and the right to speak—that
the High Court and the Court of Appeal differed. The trial judge had placed
emphasis on the controversies related to NDAs and the concerns raised by
the Women and Equalities Committee about the misuse of NDAs to cover
up sexual harassment. The Court of Appeal, however, emphasised the fact
that the committee had also recognised the legitimate role of NDAs,
including to protect complainants’ privacy. Despite the Telegraph’s
undertaking that the individuals involved would be anonymised in its
reporting, the court was concerned about their privacy: one of the
complainants did not want their story reported. The court therefore found in
favour of upholding the NDAs over the freedom of speech of the newspaper
and the two people who did want their story told.
In reaching its decision, the Court of Appeal made a strong statement
about the enforceability of NDAs and upholding contracts—provided they
were not procured by bullying, harassment or undue pressure, the person
signing had independent legal advice and the NDA permitted disclosure to
regulatory or statutory bodies. The court upheld the interim injunction and
set the matter down for trial, where it would hear evidence to determine the
validity of the NDAs and whether the public interest, in this case, meant the
women could speak out and the story could be published.
Then, before a full trial could take place, a member of the House of
Lords took matters into his own hands. Using the protection of
parliamentary privilege, Lord Peter Hain named the businessman in
parliament—rendering the injunction, and further litigation, moot. ‘My
motive was to stand up for ordinary employees against a very powerful and
wealthy boss who, as described to me, seemed to think he was above the
rules of decent respectful behaviour,’ he said. Lord Hain claimed the
women had told him that they had only settled and signed NDAs after being
worn down by the spiralling legal costs of the proceedings against Green.
We don’t know whether, on a full trial of the facts of the case, the trial
judge may have come down in favour of disclosure or made any further
statements of principle that may have assisted in future cases.
What we do know is that the precedent set in this case has already been
used to suppress discussion about alleged mistreatment of women at work.
For example, in 2019, the top tier commercial law firm Linklaters obtained
an injunction against a former senior employee, who had said he intended to
give media interviews about ‘the ongoing struggle Linklaters has with
women in the workplace’. In that case, the injunction was granted on the
basis of a confidentiality clause in the former employee’s employment
contract. The court cited Sir Philip’s case, reiterating the importance of
upholding contracts and that this will generally triumph over the right to
free speech, even if the issue is the mistreatment of women. However, the
court did note that the public interest would be satisfied in a Weinstein-like
situation: where the matters sought to be published were ‘serious enough’
and ‘create a compelling picture of persistent or habitual wrongdoing’, or if
the disclosure involved ‘correcting misleading public statements’. But the
court found that nothing of that kind emerged from the evidence in this case
and, taken together with concerns about protecting the privacy of the
women employees who were involved in the relevant incidents of concern,
the injunction was granted.
This case law in the United Kingdom is similar to a trend of cases in the
United States, where the enforceability of NDAs is under challenge in
relation to public safety and student safety, in particular where the NDA is
covering up repeated misconduct and enabling further abuse and
harassment. As Professor Julie Macfarlane, author of Going Public,
explains, this law is developing alongside a growing body of case law
where students have sued their university for failing to protect them from
professors who engaged in repeated sexual harassment. In one case, which
was settled for US$14 million, the students argued that the university failed
to protect them from sexual harassment despite being aware of the
professors’ conduct for sixteen years. In short, institutions need to think
more carefully about using NDAs—and how and when they use them, and
what they are covering up.
So what would have happened if Weinstein had sued Zelda and The
Financial Times back in 2017? Zelda’s lawyer, Mark Stephens, told us that
‘based on what the law is or at least as it was back then, he might have
won’. In Zelda’s case, she could have argued—as Mark and Jen had
discussed back then—that, given the number of women coming forward
with historical allegations, it was in the public interest for her and Rowena
to tell their stories and to show how Weinstein had used the law to silence
women for so long. Given that the courts now recognise that showing
‘persistent and habitual wrongdoing’ will tip the public interest balance in
favour of allowing the woman to speak, she might have won.
But how many women have to have been harassed or abused before the
public interest will allow them to speak?
This also creates a ‘chicken and egg’ problem: how do women know
there was persistent wrongdoing if they are all in silos of silence? If all the
women have signed NDAs, they will need to break their NDAs in order to
talk to each other about what happened just to be in a position to know
whether the court might find in their favour if and when they do speak out.
Or at least one of the women would need to take the cost risk of breaking
her NDA—as Zelda did—without knowing she had protection, in the hope
others might come forward and support her. But what if, by virtue of her
NDA, she isn’t in a position to know there was persistent wrongdoing? And
in what circumstances will an individual case of wrongdoing meet this
public interest test? The law places the women—and the journalists who
want to report on their experiences—in the position of having to take a risk.
It is for this reason that most women don’t speak out, and, if they obtain
legal advice on their NDA, they will be advised to remain silent.
We think this is wrong. We think that there should be better protection for
women who have signed NDAs to be able to speak out, especially when
circumstances change. We agree with Mark Stephens, who believes that the
legalistic approach to NDAs—looking at the issue purely from a contract
law perspective—does not properly allow for the lived realities of women
or the power dynamics at play: the cost risks, the serious inequality of
bargaining power and the inequality of arms. What does ‘the freedom to
enter contract’ mean when women—often traumatised by their experience
—face the prospect of costly, stressful litigation? ‘There is a clear risk that
more powerful perpetrators will seek to exploit the victim’s vulnerability to
procure an NDA in the knowledge that, once it’s in place, most are
unwilling or unable to take the risk of breaking it,’ he told us.
We think it should, with some narrow exceptions, be considered in the
public interest per se for women to be able to speak about their experience
of gender-based violence—and that the courts and parliament need to make
this clear.
In the meantime, how do we get more cases before the courts to
challenge these precedents and set better ones? Many women are frustrated
by the injustice but do not want to go public or just can’t afford it. If a
woman chooses to speak out in violation of an NDA to test the law and then
is sued, the costs to her are huge. When Sir Philip withdrew the proceedings
against The Daily Telegraph because his name was already public, he was
ordered to pay the bulk of their legal costs, which reportedly ran to £3
million. For most women—and most media organisations—running these
cases will be cost-prohibitive. Whatever their legal rights are or whatever
the legal possibilities might be, the cost risk will stifle women’s ability to
speak out.

The interaction of NDAs with defamation cases

Women who are considering signing NDAs should also be aware of the
issue they can cause when it comes to any future legal proceedings. Many
women don’t realise that signing an NDA means that it can effectively turn
them into hostile witnesses in any future defamation claim in which the
truth of their allegations might be tested. For example, where an alleged
perpetrator, having contracted a woman to silence, then sues a media outlet
for publishing that he abused that woman (or another), the NDA may mean
she cannot assist the newspaper to defend the case unless she is
subpoenaed. This gives him a clear litigation advantage.
For example, in Johnny Depp’s case against The Sun (News Group
Newspapers, or NGN), issues arose about whether Amber Heard could give
evidence to support the newspaper’s case. Her US lawyers said that she
wanted to give evidence but was prevented from assisting the UK
newspaper because of the NDA in her US divorce agreement with Depp.
Amber’s US lawyers were concerned that if she gave evidence in the UK
court, she would be in breach of the terms of her NDA in the United States,
which could result in Depp suing her for breach of contract and damages in
that country and threaten their divorce settlement. Despite Depp bringing
the claim—and asserting he wanted the truth to out—he refused to release
her from the NDA for the purposes of giving evidence against him.
In a part of the Depp v. NGN defamation proceedings that has escaped
much reporting, NGN filed an abuse of process application against Depp.
Its argument was simple: it was an abuse of process to sue NGN in the
United Kingdom with the claim it was defamatory that he was a ‘wife
beater’—that is, that Amber lied—while simultaneously refusing to release
Amber from an NDA that would allow her to help them prove it was true.
Amber, like other women who have signed NDAs, could be summonsed, or
subpoenaed, to give evidence in court, and have witness immunity for the
evidence she gave.
There are obvious public policy concerns about private contracts that
prevent people from giving evidence in court. The courts strike a balance
between the public interest in upholding contracts (including NDAs) and
ensuring the court has the evidence it needs to determine disputes in a fair
and just manner. However, Amber would not have been able to discuss the
matter with NGN before giving her evidence in court. In effect, the
existence of an NDA turns a witness—however willing they are and
however much they want to assist the party in the case—into a hostile
witness by virtue of the contracted confidentiality.
But there was an additional complication in Amber’s case: her US
counsel stated that Amber could only respond if she was subpoenaed for the
purposes of legal proceedings in the United States: her NDA was silent on
her participation in foreign proceedings. Despite her requests, Depp refused
to release her to assist NGN to defend her truth.
There was evidence before the court that it would cost Amber between
US$20,000 and $40,000 to use the arbitration mechanism under their
divorce agreement to obtain an order from a judge in California to allow her
to give evidence in the United Kingdom. There was also evidence that
Amber had previously sought to use the same mechanism to seek remedy in
relation to Depp’s defamatory statements to the media claiming she was
lying, but the process had gone nowhere after four months. Depp’s refusal
to release her would cause her costs and significant delay: NGN could not
obtain evidence from its key witness until this process was completed.
NGN argued that it was within Depp’s gift to release Amber to be able to
give evidence so that it could properly test his claim that she lied, and that,
since he had brought the proceedings, he should do so, and his failure to do
so amounted to an abuse of process. As Adam Wolanski QC made clear for
NGN, Depp’s refusal to release her meant Amber’s ‘hands are tied . . . but
she remains ready to assist the court if [Depp] stipulated her giving
evidence would not put her at risk of legal action in the US’. NGN argued
that there could not be a fair trial if Amber was not able to participate, give
her side of the story and help NGN prepare their defence.
The threshold test in an abuse of process application is high: judges are,
quite rightly, reluctant to deny a claimant the opportunity to vindicate their
legal rights. In the Depp case, the judge found that Depp’s refusal to release
Amber was not enough to justify his claim being thrown out or stayed,
because she had a mechanism available to enable her participation and she
should go to the expense of going through that process to seek to release
herself from the NDA. The judge indicated that he would entertain another
abuse application if she were unable to obtain the order she needed from a
US judge.
The Depp case is not the only defamation case where this has been an
issue. In Australia, an NDA created issues in the Ben Roberts-Smith’s case
against Nine Entertainment and several journalists over claims he commited
war crimes and physically abused a woman he had an affair with. The
defence wanted to call Roberts-Smith’s ex-wife, Emma, to testify—but she
had signed an NDA as part of their divorce settlement. Roberts-Smith
refused to release her from the NDA, and even threatened her with legal
proceedings if she assisted the newspaper—threatening the financial
settlement from their divorce. But Nine Entertainment subpoenaed her to
the stand—which no NDA can stop.
Roberts-Smith denied hitting her. He claimed she had been drunk and
fallen down the stairs at an event, and that this caused her the injury and the
black eye—a fact that was later supported by witness evidence at trial.
Person 17 did not contest that she had the fall and was injured by it. She
maintained that Roberts-Smith had punched her when they got back to their
hotel after expressing his anger about her conduct at the event and his
concern that she had exposed their affair. In her affidavit, she said she didn’t
go to the police after the alleged incident because she was scared for herself
and her children. Roberts-Smith said that her allegations were ‘completely
false’ and a ‘fabrication’, and that he abhors domestic violence. It also
emerged from evidence in court that Roberts-Smith had hired a private
investigator to follow Person 17 to an abortion clinic.
Emma Roberts-Smith gave evidence that her former husband had asked
her to lie to the media and make a false statement to his lawyers about his
affair with Person 17 in order to keep custody of her children. She said that
Roberts-Smith had threatened her, saying ‘if you don’t lie you will lose
them’. She also contradicted several other aspects of Roberts-Smith’s
evidence. Her evidence was challenged on the basis of text messages which
his lawyers suggest show that she is seeking revenge against her ex-
husband. The case closed, with lawyers for the newspaper urging the court
to reject ‘outdated and discredited stereotypes’ about domestic violence.
Judgment is expected late in 2022.

Reputation protection or reputation risk?

Just months after Zelda spoke out, The Weinstein Company said it had
released all its former employees from their NDAs, stating this was ‘an
important step toward justice for any victims who have been silenced by
Harvey Weinstein’. But that change only came after Zelda spoke out, and
after the company was sued by the New York attorney general.
Thanks to this and other controversies after women started speaking out,
lawyers are now advising clients that NDAs may be more trouble than they
are worth. We spoke with Rebekah Giles—one of Australia’s leading
reputation management lawyers—who told us that, since MeToo, NDAs
can create more reputational problems than they resolve. ‘I am now
suggesting to some clients that they should not enter into an NDA if the
alleged conduct is disputed,’ she said, because ‘down the track they can be
accused of silencing or covering up an act—even though it’s disputed’. In
those circumstances, she explained, the alternative remedy is to sue for
defamation to protect their reputation against the accusation being made.
As we explain in Chapter 6, the threat of defamation proceedings—and
the cost risk of potential litigation—can work just as well as any contract to
silence.
Rebekah argued that NDAs should remain an option for those who want
to protect their identity, and for those who face the threat of having their
intimate information shared in public. According to Rebekah, it allows
women to have ‘the opportunity to reach financial settlements early and
without a protracted and expensive legal dispute’ and prohibiting NDAs
will mean that allegations ‘will have to be determined in the court or in the
media’. What is important, she told us, is that the process of putting the
NDA in place ensures that the survivor is properly advised of the
consequences of the contract and what it could mean for her in the future.
As Rebekah explained, anyone seeking to put in place an NDA should—to
ensure it will later be enforceable and safe from legal challenge—be certain
that the complainant has independent legal advice and has been assessed by
a medical professional to confirm that their trauma and any associated
mental health issues do not affect their ability to enter the contract.

Can’t buy my silence

While things have changed since Zelda first spoke out about Weinstein’s
NDAs, she doesn’t think it’s happening fast enough. In the four years since
she first spoke out, there have been parliamentary inquiries and
recommendations for law reform have been made—but no action has been
taken to change the law on NDAs. Frustrated by the lack of action, Zelda
has decided to join together with Going Public author Julie Macfarlane to
start a campaign.
Professor Macfarlane had her own bad experience with NDAs. A fellow
professor at the University of Windsor in Canada had left after allegations
of bullying and sexual harassment were made by students. His employment
settlement agreement with the university had included an NDA. When he
applied for jobs at another university and she was contacted by his
prospective employer, Professor Macfarlane was honest about the
accusations that had been made against him in an email. She was concerned
to ensure that the university considering hiring him was forewarned in order
to safeguard students. He then sued her for defamation over her email, and
not in Canada but in Trinidad and Tobago, where he is from and where he
was living. He won at trial—because the university had refused, on the
basis of the NDA, to release any information about the allegations against
him to help her prove her case that what she said was true. She is appealing
and had to sue the university for its failure to provide her with the
information she needed to defend herself in the defamation claim.
As Professor Macfarlane said in a 2022 interview for Elle magazine,
‘What NDAs are doing is taking away the natural instinct we have,
especially as women, to warn one another.’ Professor Macfarlane, herself a
survivor of child sex abuse in the church, has campaigned to end the use of
NDAs by the church in settlements—and, in her, Zelda found a kindred
spirit with a common goal.
Launched late in 2021, Can’t Buy My Silence is a global campaign to
end the abuse of NDAs and the silencing of women who have suffered
sexual abuse and harassment. As Zelda explained, the personal
repercussions for people who are ‘living under that shadow [of an NDA]
are catastrophic’.
As part of Can’t Buy My Silence’s push to get NDAs back on the
legislative agenda in the United Kingdom, the Conservative MP Maria
Miller, who had chaired the committee inquiry into NDA misuse, launched
a bill that intended to restrict the misuse of NDAs. Introducing the bill in
September 2021, Miller said, ‘NDAs have been weaponised to uphold a
culture of abuse,’ and added that the gagging orders continued to act as ‘a
safety net for employers to routinely cover up abuses without consequence’.
The bill is up for consideration in 2022—so watch this space.
The campaign has already had a number of wins: in Ireland in 2021, a
private member’s bill to restrict the use of NDAs in relation to workplace
sexual harassment and discrimination was introduced, and is currently at the
committee stage in the Dáil, the Irish Parliament. This proposed legislation
would restrict NDAs unless the woman prefers to enter into one and has
been offered independent legal advice at the employer’s expense, along
with a host of other safeguards, including that the agreement must allow the
employee to waive their own confidentiality in the future. In Canada, Prince
Edward Island became the first province to ban the use of NDAs in sexual
misconduct cases and other cases involving discrimination, for example,
racism and pregnancy-related discrimination based on the Irish bill. The
legislation, which came into force in June 2022, also preserves space for
women to enter into these agreements where they choose to do so to move
on with their lives and includes safeguards against coercion and the power
imbalance between employers and employees. And in the Australian state
of Victoria, a taskforce was recently established in July 2022 to develop a
legislative response to restrict the use of NDAs in workplace sexual
harassment cases, with the state government pledging to consult with
stakeholders including victim-survivors.
In the meantime, fed up by the UK Parliament’s failure to enact
legislation, Zelda took another approach: she lobbied key organisations to
sign a pledge to end the use of NDAs. In early 2022, the UK Department
for Education committed to this pledge, which will make a huge difference
in the thousands of cases of sexual harassment settled each year in
universities and schools across the country.
And there are success stories elsewhere. In the wake of the MeToo
controversies and the release of all Miramax and Weinstein Company
employees from their contractual NDAs, pressure has mounted on other
major organisations to do the same. Women have been campaigning to be
released from their NDAs—and they’ve been winning. For example, in
2019, the US journalist Rachel Maddow announced that NBC was releasing
all women who had settled sexual harassment claims against the network
from their NDAs.
 In 2021, California paved the way by passing the Silenced No More Act,
which prohibits the use of NDAs and non-disparagement clauses in
severance agreements and builds on enhanced employee protections
introduced by the state in the wake of MeToo. The legislation was co-
sponsored by Ifeoma Ozoma, a whistleblower who broke her NDA to speak
out about the racial discrimination she and other Black women had suffered
at Pinterest, and has campaigned for change since. The legislation was
expected to increase pressure on Silicon Valley’s tech sector, which has
faced considerable pushback against its use of NDAs and mandatory
arbitration clauses. It has since been adopted in Washington State and
Microsoft announced in June 2022 it has dropped all NDAs. (Meta’s board
recently refused to do the same.) Ozoma said it was just the start.
It is clearly better to prevent than to fix after the fact, which is why
women like Zelda are continuing their efforts to get more organisations to
sign onto her pledge and continuing her efforts to change the law to ensure
that contracts and NDAs cannot be used to silence survivors. But as Zelda
told us, ‘the law is a hard thing to move’ and, in order to defend themselves
and advocate for change, silence-breakers ‘have to come to grips with
alienating and technical legal language’.
Zelda also raised her concerns about how hard it was for her—and for
other women she speaks to—to find lawyers who are able and willing to
help, and that even the cost of seeking advice on NDAs is often beyond
most women’s means. ‘Some lawyers simply don’t understand speaking out
to be a fundamental human rights issue,’ she told us—or they ‘had too
much skin in the game’ and ‘were more concerned not to alienate their
high-net-worth clients who all use NDAs’. But there are human rights
lawyers who take on these cases, and change is happening.
It is clear, thanks to MeToo and to Zelda and other silence-breakers who
have spoken out about the abuse of NDAs, that the use of NDAs is
becoming less acceptable from a PR point of view, whatever the law says.
And we believe there is hope that, as more cases go before the courts, more
arguments can be made about the need to recognise the reality of how the
law is failing survivors, and how the public interest should privilege their
free speech over contracts that seek to silence. As Zelda says—things need
to change—and faster than the courts can move, so we hope to see more
take-up of her pledge from institutions and corporates, and law reform.
 Chapter 6

DEFAMATION ON TRIAL

By far the most common legal action we have seen used against women
who have spoken out or reported gender-based violence is the libel suit.
These defamation cases are about protecting his right to honour and
reputation from the damage caused by her speech.
Defamation law allows a person to sue for damage caused to their
reputation. The law is different in different countries; in some contexts, it is
a criminal offence with those losing defamation claims facing penalties
ranging from a fine to imprisonment. Civil defamation claims can involve
monetary damages and legal costs into the millions.
In defamation cases involving allegations of gender-based violence, it is
always a question of weighing his right to reputation against her right to
free speech, weighed on Justitia’s scales. But how and where is the balance
struck? And are the courts getting the balance right?

Defamation, duels and defending the honour and reputation of men

Before there were defamation claims, there were duels. This was how men
defended their honour against lies and libels. Two men, with pistols or
rapiers, would meet at dawn—and had one shot each. It was a manifestation
of an aristocratic honour culture in which nothing was more valuable than a
man’s reputation. Or a rich man’s reputation, at least. And he was willing to
pay for it with his life.
 It was an act borne of extreme entitlement. Duels were known as ‘judicial
combat’ for a while; it was said that God would oversee the encounter and
decide the winner. Winning a duel was not a matter of luck or whoever had
the best shot, but a matter of divine intervention—God was saying, ‘This
man is telling the truth.’
Over the centuries, various kings and governments tried to stamp out the
practice of duelling but it continued well into the 20th century. In one of the
most famous of all duels, popularised by the hit musical Hamilton, former
Secretary of the Treasury Alexander Hamilton died in a duel with US Vice-
President Aaron Burr in 1804. By then, reputation was meant to be decided
in courtrooms, not on battlefields, through the action of defamation. So it is
a great irony that, just months before he died, Hamilton had been in court
defending the free speech of a client in a defamation case. In it, Hamilton
made a crucially important contribution to early defamation law. In an
appeal involving a criminal libel conviction against journalist Harry
Croswell over statements he had published about then president Thomas
Jefferson, Hamilton argued: ‘The right of giving the truth in evidence, in
cases of libels, is all-important to the liberties of the people. Truth is an
ingredient in the eternal order of things, in judging of the quality of acts.’
The case was not ultimately determined, but the year after Hamilton’s
death by duel, the New York legislature adopted his argument and made it
law that truth alone is a defence to libel, regardless of the subject matter.
Whether you are speaking about the President of the United States or about
gender-based violence, your right to free speech and your civil liberties
means the truth must protect you against a defamation claim. As we
explain, most countries around the world now recognise truth as a defence
to any defamation claim—and international law requires it under your right
to free speech.
In Hamilton’s time, those who lost their duel were silenced by injury or
death. The musical Hamilton ends with his death by duel and a song called
‘Who Lives, Who Dies, Who Tells Your Story’—a reflection on narrative
control and historical legacy. Duels may now be dead too, but the language
lives on in defamation and the media’s representation of it: a New York
Times headline in 2020 read ‘The Depp v Heard duel approaches its
climax’. Today, those who lose their defamation claim are silenced not by
death but by the law. Whoever wins gets to tell their story.
Invisible wounds

Today, defamation is the cause of action men most often use to vindicate
their reputation after allegations of gender-based violence. Wealthy and
powerful men sue, and women are often outgunned by men’s teams of
lawyers in this modern-day duel. Defending claims is expensive—and
stressful. But it’s so much more than that. Understanding the impact for
women facing defamation claims requires us to look beyond the law as it
appears in the statute books, and beyond the technical legal arguments we
make in court, to look at the law’s real-world impact.
Journalist Carole Cadwalladr was sued for defamation by Brexit-backer
Arron Banks over allegations she made in her TED Talk about his alleged
connections to the Russian government. Before winning the case in 2022,
she wrote on Twitter about her personal experience of being sued for
defamation:

it’s not just designed to silence you. Although it does. But also to
destroy you. Which it does too. It’s not a pissy business dispute. It’s a
full-frontal multi-million quid existential assault. On who you are . . .
it is a rich man’s sport . . . It’s not just the trial or an act or an event,
it’s a process that goes on over years. It’s a toxin that enters your
central nervous system slowly & insidiously, until one day you can’t
move your limbs.

Cadwalladr wrote candidly about her experience of being ‘trapped inside

the airless machinery of the legal process’, and how traumatic it was for her
to be ‘forced to hand your personal messages against your will in the certain
knowledge that anything you’ve ever said can & will be used against you’.
For Cadwalladr it was a traumatic, life-altering experience. She was being
sued by a powerful, wealthy man she spoke about as a journalist, not
someone she had alleged to have committed violence against her.
Many women are sued for defamation by their alleged abusers. A
common manipulation tactic used by perpetrators to avoid being held
accountable and discredit and silence victims is known as ‘deny, attack and
reverse victim and offender’, or DARVO. As Professor Jennifer Freyd’s
book Blind to Betrayal (2013) shows, one of the ways perpetrators assume
the victim role is by claiming to be the victim of false accusations.
Defamation claims provide the mechanism by which they become the
victim in law, by making her the defendant—and him the complainant—in
a claim that she lied and damaged his reputation.
Many of the women we have acted for and interviewed for this book
have also described it as a means by which these men can continue their
abuse and harassment. Court-mandated disclosure allows them access to
women’s personal messages and medical information, giving him access to
the intimate details of her life long after she has left him. This also happens
in criminal prosecutions, where women’s rights groups have raised
concerns about the extent to which women must give up their privacy to
enable him to be prosecuted by the state. But here, he gets access to this
information in a private claim against her, brought at his behest—not for the
protection of the public, but to protect his reputation. Legal emails demand
her constant attention. Court dates dictate where she can be—and ensure
that he knows exactly where she will be. The costs can cripple her
financially, affecting other aspects of her life.
Cases can take years to be resolved and, in the meantime, women are
effectively silenced: as we have seen, women’s lawyers will tell them not to
repeat the allegation because it may increase the damages she might be
forced to pay. And she will be told she can’t speak to the media because
she’ll be cross-examined in court about whatever she says. But it also
silences others: journalists and media will shy away from reporting on her
allegation when they know the matter is before the courts because they
could be sued too. But beyond the silencing, women facing defamation
claims—as Cadwalladr explained—feel destroyed: emotionally, physically
and financially.
One thing hasn’t changed since the duelling days: these claims are
mainly the prerogative of wealthy, powerful men. Men who are willing to
spend a lot of money to defend their honour in court. In duelling days,
equality of arms was dictated by each person having one shot. In litigation
today, equality of arms is still an essential element of a fair trial, which is
put at risk when one party doesn’t have sufficient resources to properly
defend themselves. Because of the astronomical costs, wealthy men can—in
effect—take many more shots. They can get their way through pure
attrition, bankrupting and bullying her and journalists into silence—and
then calling it justice. What does your right to free speech mean if you can’t
afford to defend it?

Defamation, MeToo and movements for change

Each individual defamation case—even though it is a private dispute

between two individuals—needs to be seen within its broader context. We
want to highlight the impact these defamation claims have—and not just on
each woman or survivor who is sued, but on society, and on our ability to
end violence against women.
Since MeToo, there has been a global spike in defamation cases. In 2020,
The New York Times reported the problem we were seeing in our work: the
civil courts are becoming the ‘alternative battlefield for accusations of
sexual misconduct’. Take, for example, Jen’s homeland, Australia. As
women marched across the country to demand accountability for violence
against women in 2021, Attorney-General Christian Porter sued the ABC
over reporting a historic rape allegation and Minister for Defence Peter
Dutton threatened Senator Larissa Waters with defamation—for alleging he
was a rape apologist—and sued activist Shane Bazzi for making the same
claim. Celebrated Australian soldier and alleged war criminal Ben Roberts-
Smith is suing Fairfax for defamation for reporting on his alleged war
crimes and domestic violence. Not long before, Oscar-winning actor
Geoffrey Rush successfully sued The Daily Telegraph over publications
making allegations of sexual assault and harassment, while former
Neighbours and Home and Away star Craig McLachlan sued the ABC and
The Sydney Morning Herald and Christie Whelan Browne for publishing
similar allegations. All the men vehemently deny any wrongdoing—and
have sought to demonstrate this by suing their accuser or the newspapers
which reported the allegations. And it’s not just in Australia.
In France, the founder of French MeToo was sued by her boss for
defamation over her allegation of sexual harassment, which had started the
French social media campaign #BalanceTonPorc or ‘Out Your Pig’. In
Canada, politician Patrick Brown sued a TV channel for broadcasting
sexual harassment allegations. Meanwhile, also in Canada, academic and
author Steven Galloway is suing twenty individuals for reporting or
tweeting about accusations of rape made against him by a former student. In
New Zealand, former Conservative Party politician Colin Craig sued his
former press secretary over her allegations of sexual harassment. In the
United States, actor Johnny Depp sued his ex-wife, actor Amber Heard, for
US$50 million over a Washington Post opinion piece. Marilyn Manson is
suing Evan Rachel Wood over her allegations, including in the HBO
documentary Phoenix Rising, that he sexually assaulted her. Justin Bieber
sued two fans for US$20 million over allegations of sexual assault they
made on social media. The problem is so widespread in the United States
that the American Civil Liberties Union (ACLU) put out a defamation
guide because of the number of inquiries they had received from women
being threatened with defamation in the wake of the MeToo movement. In
the UK, women’s frontline services and rape crisis centres have been
seeking defamation advice from us, after seeing a spike in defamation
threats against the women accessing their support services. The Women’s
Equality Party had to seek defamation advice from Jen for their election
campaign plans to tackle sexual harassment in the British Parliament.
Women’s rights groups are reporting numerous cases and concerns across
the African continent too. For example, in Kenya, journalist Tony Mochama
sued poet and activist Shailja Patel for accusing him of sexual abuse,
together with her friend, academic Professor Wambui Mwangi, who
tweeted about it to support Patel. Mochama won—and Patel is now
reportedly living in exile in London as a result of the case. Similar cases are
being reported in South Africa, Uganda and elsewhere.
In India, journalist Priya Ramani faced criminal defamation charges filed
by Union minister and former editor M.J. Akbar after she tweeted that he
had sexually harassed her in a job interview. Meanwhile, photographer and
magazine editor Manik Katyal is suing 36 women who accused him of
sexual harassment on a blog. Rajendra Pachauri, former head of the United
Nations Intergovernmental Panel on Climate Change (IPCC), filed a civil
lawsuit against well-known women’s rights lawyer Vrinda Grover for
assisting women to come forward with their allegations of sexual
harassment against him. These cases are just some of the many of the
‘retaliatory’ defamation cases afoot against women who have spoken out in
India—and those who have supported them—which the Indian Network of
Women in Media warns will deter other women from coming forward. The
list goes on and on—and on.
 Our research shows this issue is not limited to Western liberal
democracies, but spans the global North to the global South, from the Far
East to the West. And it’s not just rich and famous people—it’s happening
in every level of society. For example, Jen was recently approached at a
women’s leadership event by a woman in the mining industry who had been
sexually assaulted by a colleague on a mine site and was then threatened
with defamation for reporting it to her employer and talking to her
colleagues about it. The pattern is striking, both in the kinds of allegations
being sued upon and the biases and stereotypes deployed in courtrooms—
and in the media—to undermine the women making the accusations.
Defamation claims are not just silencing individual women but are
collectively stifling the movement to end violence against women.
This is not the first time in history that we have seen defamation being
used as a tool to stifle progressive movements for social change and
maintain the discriminatory status quo. We need only look to how
defamation claims were used during the US civil rights movement to stifle
Black dissent. Aimee Edmondson explains this in her 2020 book In
Sullivan’s Shadow: The use and abuse of libel law during the long civil
rights struggle: ‘White government officials wielded libel law to protect
white supremacy and waste the time and funds of those individuals and
organizations that worked to dismantle segregation and end police
brutality.’ By silencing Black dissent, the white establishment was able to
resist change. She has uncovered how the US courts were complicit in
maintaining racial injustice with libel suits used ‘to silence the media, civil
rights leaders and activists’.
Out of the raft of litigation during the civil rights movement came one of
the most important free speech judgments from the US Supreme Court:
New York Times Co. v. Sullivan. This was a libel case brought by a police
commissioner in Alabama over an advertisement in The New York Times
that aimed to raise money for civil rights leader Martin Luther King Jr. The
advertisement referred to police brutality towards civil rights protestors in
Montgomery, but it also contained some inaccuracies, including about how
many times King had been arrested. The case was decided in favour of the
police—because some of the information in the advertisement was shown
not to be true—but the newspaper took the case all the way to the Supreme
Court. Was defamation law stifling freedom of speech on civil rights? The
court found that it was and laid down a test to better protect free speech. To
win a defamation claim, public figures and officials now had to show not
just that the defamatory statement about them was untrue, but that it was
also made with malice and reckless disregard for the truth. It is a
purposefully high bar, limiting the law’s ability to stifle speech that is in the
public interest.
This case shows both how defamation laws can be used to stifle efforts—
and speech—designed to end discrimination, but also how the courts can
play an important role in limiting the law’s complicity in that effort and
better protect free speech.

What does his right to reputation protect?

The right to protect one’s reputation, like the right to free speech, is
protected under human rights law. Everyone is entitled to protection against
unlawful attacks on their honour and reputation. This is protected under
Article 17 of the International Covenant on Civil and Political Rights
(ICCPR) and in regional treaties such as Article 8 of the European
Convention on Human Rights. International law makes clear that protecting
the rights and reputations of others is a legitimate ground to limit the right
to free speech. But her free speech is the starting point and any restriction
on her right to free speech in order to protect his reputation—like
defamation laws—must be limited to what is strictly necessary in a
democratic society.
International courts and bodies have considered Justitia’s balance
between the right to free speech and the right to protect reputation and give
guidance on how to get that balance right. To start with, criminal
defamation laws should be repealed, and imprisonment is never an
appropriate remedy. Whether defamation law is civil or criminal,
defamation laws must always include Hamilton’s rule: the defence of truth.
His right to reputation cannot protect her from speaking the truth about his
action.
The problem is that many countries don’t respect this requirement and
write their laws to protect men and to prohibit women from speaking out.
For example, in South Korea, when a person’s social reputation is tarnished,
truth is no defence. Women accusing men of sexual assault face civil and
criminal defamation claims in response, even after they have reported the
offending to the police. As Seo Hye-jin of the Korean Women Lawyers
Association has explained, ‘Many abusers openly use the threats of lawsuits
as an intimidation tactic, saying, “I’ll drop the false accusation and
defamation suits against you if you drop the sex abuse complaint against
me”.’ In Colombia, truth is generally a defence to any defamation claim—
unless you are speaking about sexual relationships. Article 224.2 of the
Colombian Criminal Code provides that, while truth is generally a
justification for speaking out, this is not the case when matters relate to
allegations made in intimate, marital and conjugal relationships—even if
they are about abuse. This law is being challenged before the Constitutional
Court in Colombia and, with our assistance, the UN and Organization of
American States (OAS) Special Rapporteurs on Free Speech have
submitted a brief arguing that this law results in indirect censorship and
affects survivors’ free speech rights to report and contribute to public
discussion on gender-based violence.
In most common law jurisdictions, including the United Kingdom and
Australia, truth is a defence. But having a truth defence in the law is not
enough to comply with the right to free speech under international human
rights law. It also requires that women will not be held to unrealistic or
excessive standards of proof to prove her truth and be able to succeed in a
truth defence. As we explain later in this chapter, even in countries where
truth is a defence, her right to tell her truth isn’t always properly protected.
It doesn’t stop him suing her—and evidential difficulties, old male-centric
myths about abuse and cost often mean that, in practice, he can defeat her
truth and sideline her right to free speech.
Defamation laws should also contain a defence for speaking about and
reporting on matters of public interest. This is reflected in the laws of most
democratic countries, including in the United Kingdom and in most states
in Australia. This means that even untrue statements (or, more accurately,
statements that cannot be proven in court to be true) or statements made in
error should not be penalised in defamation if they were made in the public
interest and without malice. As we argue, her right to speak about gender-
based violence is a matter of public interest and should be protected. UN
experts have repeatedly emphasised that allowing women and girls to speak
about gender-based violence is a matter of public interest.
In each legal system there are various other defences such as qualified
privilege and honest opinion, which—like truth and public interest—are
supposed to reflect the appropriate balance between the rights to reputation
and free speech. Defamation law is highly technical, and each case requires
specialist legal advice. It is impossible for us to cover each defence in detail
in this book. In this chapter, we focus on truth and public interest.
In the end, free speech protection isn’t just about the law as it appears on
the books but also how it operates in practice: UN bodies have repeatedly
warned that states must ensure that defamation laws ‘do not serve, in
practice, to stifle freedom of expression’ and ‘are not misused . . . to
illegitimately or arbitrarily censor journalists and interfere with their
mission of informing the public’. UN experts have warned states to ensure
that defamation laws do not prevent survivors of gender-based violence
from speaking out about the abuse they have suffered or have a chilling
effect on the ability of the media to report on it. Are our laws and our courts
helping or hindering women’s ability to speak?

What can you be sued for?

It’s important first to be clear about what you cannot be sued for. You
cannot be sued for defamation for reporting your abuse or anyone else’s to
the relevant police or state authorities (at least in most jurisdictions). You
also cannot be sued for what you say in court when giving evidence about
it. But you can be sued for what you say and publish outside of court.
You can be sued for any accusation of gender-based violence you make
on social media, in the print media or on TV or radio—and even for what
you write in an email. Slander is spoken defamation, but anything spoken
that is recorded or broadcast becomes libel. Libel is defamation in lasting
form, and so includes any statement that is written, broadcast, posted
online, tweeted or otherwise published. As we saw at the beginning of this
book, Nicola Stocker had to fight all the way to the UK Supreme Court over
a Facebook comment.
For him to be able to bring a defamation claim, he must show that she
damaged his reputation. Unlike other kinds of allegations, any allegation of
gender-based violence—rape, sexual assault or harassment, or domestic
abuse—will generally be presumed to cause damage to a man’s reputation.
Even in the United Kingdom, and Australia (except in Western Australia
and the Northern Territory), where a new ‘serious harm’ to reputation test
was put in place to make it harder to sue for libel and better protect free
speech, accusations of gender-based violence—particularly if published in
the national media—will meet that threshold. But this is a fact-specific test,
and a recent case in the United Kingdom suggests the test may not be met
where a woman is simply talking to her friends and social circles about his
alleged abuse. For example, in Lee v. Brown a man sued his ex-partner for
claiming he had been abusive towards her during their relationship. He
claimed she had been running ‘an abusive smear campaign’ against him.
The publications he complained of included private emails and
correspondence to eleven identified people and a Facebook post. Her
Facebook post did not name him, though the judge found that didn’t matter
because he could still be identified from the post. The post was seen by
between a hundred and thousands of Facebook users. This would have been
enough to be defamatory under the old common law and allow him to sue
her, but the judge dismissed his case because he had not proved that her
statements had caused ‘serious harm’ to his reputation under the new test.
Relevant to his conclusion was the fact that the allegations were made and
published to people who were already ‘partisan recipients’ on either side of
‘an acrimonious relationship break down’. As a result, the judge concluded
that people would be unlikely to change their mind or allegiance and—in
the absence of evidence to show otherwise—the publications of the
allegations could not be said to have caused serious harm to his reputation.
In short, it is all about context: where it was published, who it was
published to, the extent and effect of publication on his reputation. In
Nicola Stocker’s case, her Facebook post was seen by a relatively small
number of people but was enough to meet the serious harm test. And media
publications about gender-based violence will almost always enable him to
sue.
Of course, he can only bring a claim if he has a reputation to defend: you
can’t harm, let alone do serious harm to a reputation that has already been
irreparably harmed. By the time tens of women had made credible sexual
assault allegations against Harvey Weinstein, many lawyers argued that it
was safe to report further since there was a good argument to say that he no
longer had a good reputation to defend. But that’s a hard argument to run
and win, even when more than one woman speaks out.
You don’t need to name your alleged perpetrator: it is enough that he is
identifiable and someone who reads the story can connect it to him. We
have noticed a trend towards women not naming the person in order to
protect themselves against defamation proceedings. For example, in
Australia, former member of parliament and lawyer Julia Banks recently
published her book Power Play: Breaking through bias, barriers & boys’
clubs (2021), about the sexism she faced in politics. In the book, and in the
media, she has described an incident when she was inappropriately touched
by a cabinet minister in the Prime Minister’s Office. Banks has told that
story out of her stated concern that, if he was willing to do it there, and to
her—a fellow MP—imagine what he would do to women with less power,
and elsewhere. In response to questions as to why she would not name the
minister, she said, ‘I’m not fearless,’ and cited the risk of defamation
proceedings.
While you’re safer not to name him, not naming him won’t necessarily
protect you: what matters is whether or not he is identifiable—and what
you’ve published causes his reputation harm. If you claim an ex-boyfriend
raped you at a particular age, then he will be identifiable to those who know
you both, and so he could still sue you. Banks perhaps felt some security in
not naming that cabinet minister because there were sixteen men in Prime
Minister Turnbull’s cabinet in 2016 and only six women. Ironically, the
historical discrimination against women that has caused the under-
representation of women in politics, and in cabinet appointments, affords
her some protection. That and the fact he probably doesn’t want to name
himself in order to be able to sue her.

He decides what she meant by her words

The first part of any defamation proceeding is to look at the alleged

defamatory statement itself and determine exactly what it means. In the
United Kingdom, the court will do this—with her lawyers, his lawyers and
the judge poring over the words used to determine what an ‘ordinary
reader’ would understand from them and what they imply or convey. It is
often (but shouldn’t be) a very technical exercise. The meaning determined
by the judge will shape the rest of the trial. Even when it is a personal
account of her own experience of violence, what she really meant by her
words does not determine what her words mean in law for the purposes of a
defamation claim.
 Historically, defamation claims have been determined by juries of men
and (more recently) women. They must decide, first, the meaning of the
defamatory statement and, second, whether there is enough evidence to
prove that the statement is true. Juries are still used in some places (for
example, in the United States and in some jurisdictions in Australia). But in
the United Kingdom, all this will be determined by a single judge—who
typically will be a white, privileged man. And this matters.
The test is this: how would the ordinary reader understand the meaning
of her statement? The test used to be how ‘the reasonable man’ would
interpret her words, but we now use gender-neutral language. But does that
change really matter if the people determining this test are still, in fact,
predominantly white, privileged men? Her words could be given a spectrum
of different interpretations. But when only a narrow subset of people sit on
the bench, the ‘ordinary and reasonable reader’ may in effect come to mean
‘a privileged white man’.
The impact of a male-centric approach to the meaning of her words is
illustrated by what happened in Nicola Stocker’s case. Did her words ‘he
tried to strangle me’ mean that he forcefully grabbed her around the throat,
or did it mean that he did so with an intent to kill her? What Nicola had
meant was that he had grabbed her by her throat, and indeed she had police
evidence to prove that he had. But Mr Justice Mitting imposed a different
meaning on her words: using a technical definition from the dictionary, her
words ‘tried to strangle’ meant that her husband had intended to kill her.
(The new offence of non-fatal strangulation introduced by the Domestic
Abuse Act 2021, thanks to feminist campaigning, remedies the problem that
Nicola Stocker faced in her case: the new offence does not require an intent
to kill.) On the judge’s meaning, Nicola’s evidence and the police evidence
was not enough: the judge found that it was evidence that he had intended
to silence her, but it was not sufficient to show that he had intended to kill
her. And so she lost the case and was found to have defamed the man who
had committed an act of domestic violence against her.
This is not to say the different interpretations were necessarily the result
of gender difference—a majority male Supreme Court later overturned this
decision on appeal, taking a more reasonable and realistic approach to the
meaning of Nicola’s words. But it does show how important perspective
can be when it comes to determining the meaning of her words when she
speaks.
 Debates about MeToo—and the defamation cases that have followed—
have also shown the important of nuance in language around gender-based
violence. In English, the phrase ‘sexual assault’ can refer to a spectrum of
conduct from unwanted sexual touching to that involving more forceful
physical violence. In defamation, too, words matter and meaning matters: as
Nicola Stocker’s case shows, the meaning of your words could be construed
in a way that makes it difficult or even impossible for you to prove your
case. This is why you often read stories in the newspapers about ‘sexual
misconduct’ or ‘sexual assault’ instead of more specific phrases in law like
‘attempted rape’, which is notoriously hard to prove because of the need to
prove his intention. However, courts have begun to take a more expansive
approach to the meaning of domestic abuse in defamation cases to reflect
developments in law and understandings of abuse: it need not necessarily
mean physical violence and can include non-physical abuse, such as
‘controlling behaviour’ and verbal abuse.
It is because of the courts’ approach to meaning that journalists and their
in-house lawyers will often choose language that a survivor might see as
downplaying her experience. But they do this in order to make it easier to
prove the truth of the allegation in court—if it comes to that—and to be
sure they have sufficient evidence to prove it. This is also why you will
always see ‘it is alleged’ or ‘she said’, rather than reporting her allegation
as a fact: it is easier to prove later in court that there were grounds to
suspect he raped her, than it is to prove he is guilty of raping her.
It also means that women speaking out, and the commentators who
support them, have to be careful about the language they use. For example,
a Canadian professor is suing a group of women for calling him a rapist or
using the hashtag #rapist in tweets referring to him in support of a student
who accused him of rape, sexual assault and harassment. He says it was
defamatory because the university had, in an investigation which he said
was flawed, only found that he had sexually harassed her, not raped her.
All of this means that when speaking about your abuse or anyone else’s,
you must be very careful in the language you use. This is particularly so
when your words have a specific definition in law.

He decides who to sue and where

In our practice and more broadly, we have seen how someone can use
defamation law to prevent an allegation against them from being reported
on and repeated. This is because he can sue not just the woman speaking
out, but also the journalist and the media outlet that published the
allegations, and anyone else who repeats her allegation in order to support
her. Friends and family, activists or frontline services organisations can be
sued or threatened with a suit. Depending on the jurisdiction, these cases
can be civil or involve the man pursuing criminal prosecution, with or
without the support of prosecutors. It is possible to take these actions
simultaneously—and in different jurisdictions. He can sue the woman,
while also suing the journalist and the media organisation, together or
separately. Defamation claims have the effect of silencing the women and
journalists who are sued by deterring them and anyone else from repeating
the allegation. As we saw in the Charlie Elphicke case in Chapter 4, a
defamation claim can stop a story: The Times story about him was not
reported on by any other media organisation.
But in some places, such as in India, men have been able to get orders
and injunctions before trial to force the removal and repetition of her
allegations. We interviewed Karuna Nundy, one of India’s leading lawyers.
She explained how artist Subodh Gupta sued an anonymous Instagram
account, @herdsceneand, which had published allegations of sexual
harassment against him, seeking 50 million rupees in damages and for the
posts to be taken down. Controversially, Gupta was able to get a court order
requiring Google and Instagram to remove the URLs and posts relating to
the allegations before trial. Karuna explained that these orders can be
obtained in India before trial because the legal system is so slow; in order to
preserve his rights and protect him until the matter can be determined at
trial, the material is taken down. The Indian Journalists Union argued that
the orders violated the right to freedom of speech, and we agree. It
privileges mitigating potential damage to his reputation over and above her
right to free speech. In Australia and the United Kingdom, you can’t get an
injunction to prevent publication or remove material that you allege is
defamatory publication until after trial—and the truth or otherwise of her
allegations is proven in court. This rule is considered to protect freedom of
speech and represent the correct balance between speech and reputation.
Gupta later agreed a settlement with Herdsceneand, which resulted in the
posts being removed permanently. Irrespective of the outcome in his case, a
dangerous precedent was set in India. Orders which allow the removal of
potentially defamatory material pre-trial in India will mean that men can
legally silence women’s allegations for years on end just by filing a claim,
regardless of the truth of her allegations.
He can also choose where to sue: in most places, he will just have to
show he has a reputation in that jurisdiction to protect, and that the
publication has caused him damage there (i.e. it was published and
distributed there or—in the case of online publications—it was downloaded
there). For example, in India, Manik Katyal sued 36 women, and Facebook
and WordPress, over an online blog in which women had accused him of
sexual harassment. He chose to sue in the city of Dehradun, where he was
from. But this was far away from all of the women he sued and added to the
expense and difficulty they faced to defend themselves. Karuna Nundy, who
represents the women, had to petition the Supreme Court of India to have
the cases moved to Delhi in a process that took three years.
There is also nothing to stop a man from suing, on the same allegations,
in multiple jurisdictions. Johnny Depp is just one high-profile example of
this: he sued The Sun newspaper in the United Kingdom, and Amber Heard
personally in the US state of Virginia—where neither of them live. Those
suing for defamation can also ‘forum shop’—that is, he can sue in the place
where the law is most favourable to him. It also means he can sue in
another jurisdiction if he doesn’t like the outcome the first time around.
Around the world, we are seeing men use various kinds of action—
against the woman, against the journalist and against the publication. And
depending on which of these targets he decides to sue, the lawsuit affects
her in different ways.

Where a woman is personally sued

In the first scenario, where the woman is sued personally, she faces the
stress and cost of the proceedings, but she is in control: it is defended by her
lawyers and it is for her to decide how the case is defended. If she cannot
afford to defend her truth, she may be forced to settle for financial reasons,
and perhaps forced to agree to never repeat her accusation: she is silenced.
How many women have been silenced because they cannot afford to defend
their right to speak?
 Louise Reay, an award-winning British comedian, could not afford to
defend herself when she was sued for defamation by her former husband for
using material about him in her stand-up show. He claimed £30,000 in
damages plus legal costs and an injunction to prevent her from repeating
her allegation that he was abusive in their relationship. The case worried not
just women speaking out about abuse, but all comedians who use material
about their loved ones (or former loved ones) in shows. A crowd-funding
campaign commenced to support her defence was not enough. But Louise
settled the case and the agreed statement said simply that they had both
‘agreed to make no further comment’. Louise cannot now speak about her
own case, in her comedy show or anywhere else, but she has been vocal
about others who found themselves being sued by their ex-partner. During
the UK trial, Depp v. News Group Newspapers, she posted on Twitter in
support of Heard: ‘This is what real silencing looks like. Where you risk
losing everything for speaking out.’
If the woman being sued for defamation can afford the fight, she will
have her credibility questioned and undermined in a public courtroom, and
be subjected to cross-examination by her alleged abuser’s counsel. In some
places, she might even be questioned by the alleged abuser himself. This is
because, in many jurisdictions, the protective rules developed for criminal
trials involving gender-based violence to protect complainants don’t apply
in civil defamation trials. For example, in New Zealand, Rachel MacGregor
was sued by her former employer, former Conservative leader Colin Craig,
for defamation over her claims he sexually harassed her. She countersued
him for defamation and was later awarded NZ$400,000 in damages—but
only after years of being dragged through the courts by him. During the
case, MacGregor was cross-examined over two days in the High Court in
Auckland, and not by a lawyer, but by Craig himself. She was reportedly
brought to tears by his questioning. In the United Kingdom, in criminal
cases judges can make an order to prevent a self-represented defendant
from cross-examining the complainant and appoint a lawyer to do it for
them. As Harriet Johnson explains in Enough, ‘the rule is designed to stop
the trial process from forming part of any abuse’. It was only after the
Domestic Abuse Act 2021 that ‘the same rules were introduced to prevent
abusers being able to cross-examine their victims in the family court and in
civil proceedings’. Women should have this same protection in defamation
cases where they are being sued in relation to allegations about gender-
based violence.
If she gets through the process and wins—vindication. If she loses—she
will have to pay him damages and costs, and could be subjected to an
injunction making it a contempt of court if she makes the allegation again.
She is silenced.

Suing a media outlet or publisher

In the second scenario, a media outlet that seeks to publish the allegation
being made by the woman is threatened with legal action. The threat might
be enough to stop publication if the media organisation can’t afford, or
doesn’t want, the fight. She has no say—and her story is silenced.
If the media outlet does report her allegations, and the man sues it and the
matter goes to trial, she is not a party to the proceedings and so will have no
say over how it will be defended—or indeed whether it will be defended at
all. The only agency she can exercise is whether to voluntarily assist the
media outlet to defend her truth by providing them with evidence and
appearing as a witness. Even if she doesn’t want to be involved, she may
still be subpoenaed. But in either case the woman has no say in how the
matter will be handled. The media organisation could, at any time, choose
to settle for commercial reasons, which can then forever be used by the
alleged perpetrator to say she lied or at least to undermine her account and
credibility, deterring other media from ever publishing her allegation. If the
case goes to trial and the media organisation can’t meet the burden of proof
because she is not believed, it will be liable for damages and costs. An
injunction might prevent the media organisation from repeating the
allegation, which will deter other journalists from reporting on it too. She is
silenced, and the media is silenced. This might be the case even where she
had never wanted the allegations to surface in the media.
Eryn Jean Norvill’s career was thriving. Cast in a series of Sydney
Theatre Company (STC) productions, she was a darling of the Australian
theatre scene, and had played high-profile roles, including Cordelia in King
Lear, and won Melbourne Fringe Festival awards. But then, in late 2017, as
the MeToo movement gained traction around the world, a news story was
printed that would change her life forever.
 The Daily Telegraph published a sensational front-page story, with the
headline ‘KING LEER’ accompanying a portrait of Geoffrey Rush. The
story the article was telling was Norvill’s: it revealed allegations about
inappropriate conduct she had made against the Oscar-winning actor. Rush
was one of the most widely respected and revered actors in the world, one
of the few to have won ‘the Triple Crown’ (an Oscar, an Emmy and a Tony)
and a powerful industry figure in Australia. There was just one thing: she
had never intended those allegations to be made public. Yet there it was: her
story splashed across the papers. Several further sensational stories were
published over the next week, making global headlines.
Back in 2015, Norvill had starred opposite Rush in King Lear. She
reported certain behaviour, including ‘inappropriate touching’ by Rush
during the production to the STC, her employer, in the hopes that the STC
would deal with it and it would stop. She did not sue Rush or the STC for
sexual harassment, nor did she ever seek out any media coverage. Indeed,
as Tom Blackburn SC, the barrister for the media would later make clear at
trial, she had ‘desperately sought to stay out of the limelight’. But the
allegations against Rush were leaked—without Norvill’s consent—and
published by The Daily Telegraph, Sydney’s most popular tabloid
newspaper, in November 2017, as MeToo was kicking off around the world.
The Daily Telegraph had not sought Norvill’s consent before doing so, nor
had it even sought comment from her.
As Norvill has since said, ‘My experience was not #MeToo, it was
#HerToo.’ This was an example of the media failing to protect survivors—
publishing her experience without her consent. ‘My choice to participate
was taken away from me by the media,’ Norvill has said. ‘I really don’t like
when decisions are made without you or for you, no one likes that, but
particularly when it reshapes your entire sense of self and reality.’
When the story was published, Rush denied the allegations vehemently,
and sued The Daily Telegraph for portraying him as ‘a pervert’ and ‘a
sexual predator’ who ‘had engaged in inappropriate sexual conduct’ and
‘sexual assault’ during the King Lear production. The newspaper argued
only one defence: that the allegations were substantially true. And so
Norvill’s account of the incidents was put on trial—years after she alleged
they had taken place, and without her ever intending for them to be made
public.
 To defend itself, the newspaper needed Norvill to appear as a witness and
give evidence. She was in an invidious position: if she chose not to
participate, her truth would be put on trial in her absence and the newspaper
would likely lose—and her allegations would be said to be untrue. But if
she chose to participate to defend her truth, she would be cross-examined
and subjected to a media circus that was not of her making. Either way, her
credibility and her truth would be under attack. Norvill chose to give
evidence. But in the battle of credibility between her and Rush, the judge
preferred Rush—and he won the case. As we will explain later in this
chapter, the decision has been criticised. It was devastating for Norvill.
Happily, however, it has not kept Norvill down. The STC has continued
to support her, casting her in Oscar Wilde’s The Picture of Dorian Gray, for
which she received rave reviews. Some called it her comeback. But she
should never have been in the position of having to make a ‘comeback’.
The defamation trial was traumatic for her. She told The Guardian about
having to endure ‘the most isolated period of my life’ and has said that she
needed to completely reshape her worldview as a result. Her words will
resonate with the many women we have interviewed around the world who
have said the same of their own experience of defamation cases.
The settlement of defamation claims against the media can be unsettling
—for the women who make the allegations, and for their friends and family.
Claims are settled or withdrawn for all kinds of reasons and can be used to
undermine the credibility of her allegations.
As we explained in Chapter 3, Australia’s then attorney-general Christian
Porter sued the ABC in 2021 over the publication of a report about Kate’s
historical rape allegations. In the claim, his lawyers alleged the media
reports had accused him of ‘the brutal and anal rape of a 16-year-old’,
which ‘contributed to her taking her own life’, ‘warranting criminal charges
being brought against him’. The ABC defence did not allege that Porter had
committed the rape but rather that he was reasonably suspected of doing so
—which, as we explained earlier, is an important distinction. The ABC also
argued there were reasonable grounds ‘to warrant the Prime Minister
urgently instigating an independent investigation’ into Porter’s conduct and
sought to rely on other defences given the importance of free speech about
political accountability and the conduct of a minister. Porter strenuously
denied the allegations and proclaimed he would prove his innocence in
court. Prime Minister Morrison refused to conduct an inquiry into Kate’s
allegations because it would be determined by a court of law—not in a
criminal court, but in Porter’s defamation claim.
But the matter never made it to trial. Porter agreed to a settlement with
the ABC just before its defence was due to be made public. Porter had
applied to strike out parts of the ABC’s defence, arguing it was
‘embarrassing and vexatious’. Before the court determined his application,
a settlement was reached: Porter would discontinue his claim and the ABC
would publish an agreed statement. The ABC published the following
statement:

On 26 February 2021, the ABC published an article by Louise

Milligan. That article was about a letter to the Prime Minister
containing allegations against a senior cabinet minister. Although he
was not named, the article was about the Attorney-General Christian
Porter. The ABC did not intend to suggest that Mr Porter had
committed the criminal offences alleged. The ABC did not contend
that the serious accusations could be substantiated to the applicable
legal standard—criminal or civil. However, both parties accept that
some readers misinterpreted the article as an accusation of guilt
against Mr Porter. That reading, which was not intended by the ABC,
is regretted.

The agreed statement was considered by many to be a statement of the

obvious: the ABC had not said Porter was guilty of rape, even if some
readers of the article had (wrongly) interpreted it that way. The ABC also
agreed that the disputed parts of their defence would be removed from the
court file, and was therefore never made public.
Porter claimed victory. He continues to vehemently deny the allegations
and can now point to the ABC’s statement that they had never contended
that Kate’s claims could be proven in court. Others claim it was no
coincidence that his settlement came just before the strike out application,
which would have determined how much of the ABC’s defence would be
made public: Porter didn’t want his day in court after all, if it meant a public
airing of the ABC’s defence and the facts they would allege to defend the
case. But his lawyer, Rebekah Giles, disputed that and told us Porter got
what he wanted from the ABC without having to go to the expense of a
trial.
For many, the settlement meant that no one was any closer to the truth. A
court had not determined the matter, and the government still refused to set
up a judicial inquiry. It is a tragic case. Rebekah Giles pointed out that some
close to Kate had questioned the ABC’s decision to publish the allegations
after her death and cited the attempts made by her parents to stop the ABC
from airing the allegations. The ABC did not and sadly could not have
obtained Kate’s permission to publish her allegations but continues to
defend the public interest in reporting them. The most tragic part of this
case is the fact that Kate is no longer alive to decide or to defend her truth.
But even if she had been and was willing to give evidence, it would have
been the ABC’s decision whether or not to settle, not hers.
For Kate’s friends, the outcome was anything but satisfactory. Dhanya
Mani has lamented that because there has been no judicial inquiry into
Kate’s serious claims, and much of Australia has moved on, Kate’s story
‘will stop being told’. She has written that the ‘most excruciating pain’ in
grieving Kate’s death was ‘witnessing the public and press defile her’,
citing the many attacks on Kate’s credibility after her allegation was made
public. The settlement of Porter’s defamation claim and the failure of the
government to investigate, Dhanya wrote, meant that ‘[t]he priority thrown
at the feet of Kate’s loved ones—by the media and by politicians—is the
task of restoring her’.
Sometimes claims are withdrawn before or even during a trial by the
claimant. This can happen for a range of reasons: they run out of money or
lose the will to sue. It could also be because evidence comes to light that
they don’t want aired in court or will mean they might lose. Withdrawing
the claim before judgment is better than ending up with a judgment stating
that what was said was true and mitigates his legal cost exposure. For the
journalists and the women sued who could afford to get this far, it is cold
comfort: you’ve been through years of stress, cost and silencing to be
forced to prove the truth, only to have the ability to do so taken from you at
the eleventh hour.
In a recent case in Australia, former Neighbours star and award-winning
actor Craig McLachlan had sued media organisations and Christie Whelan
Browne, one of three women who spoke out in the media with allegations
of sexual assault and harassment during a theatre production of The Rocky
Horror Show.
The defamation claim, filed in 2018, was stayed after Victorian police
charged McLachlan with assault and indecent assault involving four women
in the production. In 2020, McLachlan was acquitted of the charges. In the
magistrate’s opinion, the outcome could have been different if his conduct
in 2014 was judged under Victoria’s new consent laws. In other words, he
may have believed the women consented, but his belief was not reasonable.
McLachlan then pursued his defamation claims against the media and
Whelan, and the trial commenced in May 2022 before a four-person jury. In
their defence, the media made clear that, since their initial publications
about McLachlan, they had collected more evidence to prove the truth of
the allegations against him. In a good example of how media reporting can
‘shake the tree’ and encourage more women to stand up and come forward,
the media said that eleven women were now prepared to say in court that
they were harassed by McLachlan. The witnesses included women who had
worked with McLachlan not just on The Rocky Horror Show, but on the set
of Neighbours and two other productions, and crew members who would
support their accounts. Their allegations were going to include sexual
assault, harassment, indecent exposure and bullying.
McLachlan gave his evidence in court, claiming that he was merely
‘friendly and affectionate’ on set. But on the day the defence was due to call
their first witness, he abruptly withdrew his claim, citing mental health
concerns and the stress placed on his family. He had his day giving
evidence in court—and the media had reported his evidence—but the
women would not have theirs. He claimed that discontinuing the case
would ‘finally bring to an end the four years we have endured since the
publications were first made’ and highlighted the fact he had been acquitted
in the criminal case. For withdrawing, McLachlan will have to pay the legal
costs of the defendants, which were reportedly $1.5 to $2 million.
But what about the distress his defamation claim had put the women
through? Christie Whelan Browne, who was the only woman he sued
alongside the media organisations, published a statement. In it, she
explained that she and a group of women had initially tried to raise their
concerns about McLachlan’s conduct with the production company of The
Rocky Horror Show because they wanted to protect the women due to
perform in the next production. The production company refused to
investigate and, she says, threatened to sue them for defamation. She
emphasised that she and the other women only spoke out to the media to
protect other women. The fact that they did resulted in the authorities
deciding there was sufficient evidence to prosecute him. But then she was
‘singled out and sued for defamation’, by McLachlan. She describes how
her ‘name was dragged through the mud’, and her character and behaviour,
‘called into question’. Whelan said, ‘I had thought this kind of shaming was
a thing of the past, but I was wrong’:

The past four and a half years have significantly traumatised me and
the other brave women who spoke up at that time and afterwards. I
have received multiple threats and constant abuse and it continues to
this day . . . I have lost my feeling of safety in the world, knowing
someone wanted so badly to damage me for speaking the truth.

Whelan says she hopes that the fact that she fought and McLachlan
ultimately withdrew his case will be ‘a reminder that women will stand up
for themselves and each other, even when threatened by those more
powerful’. But how many women can afford to fight a defamation case for
four years and through to trial? And how many women have to come
forward before a powerful and wealthy man will withdraw his case? Or
choose not to sue in the first place?

Suing friends, family, activists and other third parties

In the third scenario, if a third party speaks on behalf of the woman or in
support of her, he might bring an action against them in defamation too. If
they can’t fight it for financial or other reasons and have to settle, he will
claim that her friends and supporters don’t support her or can’t prove the
allegations. Again, she has no agency over the action. She will not be able
to decide whether to fight or to settle. We have seen women’s friends,
supporters, commentators, activists and those working to prevent gender-
based violence sued and ultimately silenced from speaking about the matter
and supporting her. Sometimes action has been taken or threatened against
people who were simply expressing their opinion online about allegations
on the public record. For example, David de Freitas, the father of a young
woman who tragically took her own life after a private prosecution for
making a false rape claim was brought against her, was sued for defamation
in England by the man she had reported to the police. In Canada, a group of
women are being sued for speaking in support of their friend, who made
claims of sexual assault and rape against her professor. These types of legal
threats and actions chill discussion and reduce the public space in which
people can talk about gender-based violence and call for accountability or
changes in the laws or processes.

Her truth on trial

It is a fundamental aspect of her right to free speech that she is protected for
speaking the truth. But what happens when her truth goes on trial?
Many women have asked us: ‘But he can’t sue me for defamation if it’s
true, can he?’ The short answer is yes: he can still bring an action, and it
will be a matter of proving it at trial. There are many famous examples of
wealthy and powerful men—from Oscar Wilde to Lord Jeffrey Archer—
who have sued for defamation, at great expense, despite the allegation being
true. In Archer’s case, he sued and won his defamation case against a
newspaper in 1987 by lying about his relationship with a sex worker,
Monica Coghlan. Coghlan gave evidence at trial and told the jury the truth:
Archer was lying. But the jury preferred the testimony of the peer and his
wife over Coghlan’s evidence (which is perhaps not surprising given that, in
his directions to the jury, the judge famously described Lady Archer’s
‘elegance’, ‘radiance’ and ‘fragrance’, giving credence to her claim about
their ‘full married life’ and its implication that her husband would have no
need to turn to Coghlan). He was awarded £500,000 in damages. But the
truth would later out, and Archer went to prison for perjury in 2001, and
had to repay the newspaper. Sadly, Coghlan struggled to work after the
verdict and didn’t live to see her vindication: she died in a car accident
before Archer was convicted. The English Collective of Prostitutes wrote to
The Guardian at the time, complaining about the discrimination and
victimisation she and her family faced in the earlier defamation trial, the
associated media coverage and the years since, asking, ‘how will Ms
Coghlan’s son be compensated for the unjust slander of his mother?’
 The point is that women, journalists and media organisations need to be
prepared to prove her truth at trial. This means proving in court—to the
civil standard of proof, on the balance of probabilities—that their allegation
is true. This is different to the criminal standard of proof. For example, if
she accused him of rape, a prosecutor would have to prove ‘beyond a
reasonable doubt’ that he had raped her. For this reason, it should be easier
in a defamation claim to prove that what she said was true. It is a risk that
men take when they sue in civil courts—and may explain why men like
McLachlan choose not to pursue defamation cases on this lower standard of
proof, especially after being acquitted by the criminal courts.
Different jurisdictions have different rules about how the truth is to be
judged. In the United Kingdom and Australia, the burden falls on the
defendant. An allegation about gender-based violence will be presumed to
be defamatory, and the person who made that allegation—or the journalist
who reported it—must prove that it is what happened. If her allegation is
one of serious criminality (such as rape, sexual assault or domestic
violence), then she is required to have even stronger evidence if she is to
succeed with a truth defence.
In the United States, however, the burden is reversed: the burden of proof
falls on the person bringing the defamation claim. This reversal of the
burden of proof is considered an essential element of the stronger free
speech protections that are said to exist in the United States under the First
Amendment to the Constitution. As a result, scholars and lawyers agree that
US law better protects free speech—and her speech.
As in criminal cases, it is often challenging to prove allegations of sexual
assault or domestic violence. More often than not, the offending has
occurred in private, and so it comes down to the credibility of the witnesses:
will a judge or jury believe her or believe him? Much has been written
about the gendered bias in criminal prosecutions of sexual crimes, and how
it undermines justice for women. For this reason, many countries have
adopted rape shield laws, jury directions, and judicial guides and bench
books to guard against gendered bias and to warn juries to ignore myths
about gender-based violence and how victims ‘should’ behave. As our
colleague Harriet Johnson writes in Enough, ‘This has a significant impact
in shifting the emphasis of the defence in such cases: if a barrister knows
that, after her closing speech, the judge will tell the jury to disregard
stereotypes about rape, she is unlikely to rely on stereotypes about rape in
her speech.’ But in defamation jury trials about sexual and domestic
violence, there are no such protections: there is no requirement to give jury
directions about harmful myths and no rule to prohibit cross-examining
women about their sexual history. Evidence about sexual history should, of
course, be considered irrelevant and inadmissible—but that doesn’t stop
lawyers trying to raise it (see discussion of the Depp case in Chapter 7).
When a woman’s truth goes on trial, she also comes up against the
problem of what is known as ‘testimonial injustice’. When she speaks about
gendered violence or sexual assault, her word is often not enough. A lot of
the time, without corroborating evidence, she will not be believed (and
sometimes even with it). In criminal cases, this may mean there is ‘not
enough evidence’ for the state to prosecute. In defamation proceedings, it
can mean a woman’s testimony is not sufficient to establish the truth of her
allegations.
One of the earliest feminist interventions in law was to try to remove the
requirement for corroborating evidence for sexual assault and rape
allegations. As we explained in Chapter 1, many common law countries had
rules requiring corroboration evidence in sexual violence cases and judges
would warn the jurors that it was dangerous to believe uncorroborated
evidence (that is, it was dangerous to believe the woman’s testimony alone).
This was rooted in the idea that the testimonies of women and children were
inherently unreliable. Yet in cases of gender-based violence, there may be
nothing other than a woman’s testimony—because it so often happens
behind closed doors, enveloped in shame and secrecy. Many countries have
since abolished the requirement for corroboration evidence, as we explained
earlier, having appreciated that presuming all women to be unreliable
witnesses is discriminatory. But some countries still require corroboration
evidence.
The International Commission of Jurists has emphasised that this
requirement is underpinned ‘by the gender stereotype that women fabricate
allegations of rape and sexual assault’ and that they make allegations of
rapes when they want to cause harm or seek revenge. The ICJ has produced
evidence and data that the percentage of women who fabricate complaints is
in fact very low and that ‘it is increasingly accepted and understood that in
fact allegations of sexual assault are not easy to make’.
The ICJ notes too that there is no legitimate reason for the application of
a different approach to the testimony of survivors of sexual violence to
those of other crimes.
Even where the corroboration requirement has been removed, women
and girls often find that they are considered unreliable witnesses. According
to feminist philosopher Kate Manne, judges treat women and non-white
men less favour-ably, due to unconscious bias, and find ‘their testimony
suspect or their arguments unpersuasive’. This explains why men are often
granted testimonial priority in ‘he said, she said’ situations. Judges or juries
uphold his point of view and thus uphold the patriarchal order; women’s
testimony is found to be suspect, or they are told there is no ‘evidence’
when they make allegations. As Rebecca Solnit has put it in her book Men
Explain Things to Me, women are not considered to be reliable witnesses in
relation to their own lives.
The testimonial injustice identified by Manne is a particular concern in
defamation cases where women—or the newspapers and journalists
reporting their stories—rely on a truth or justification defence. This has
been starkly exemplified in Johnny Depp’s defamation trial against Amber
Heard in the US, as we shall discuss in more detail in the next chapter, and
in many other defamation cases around the world. How much corroborating
evidence do women need before they will be believed? How many women
must make allegations for a truth defence to succeed?
These are questions that were asked after the decision in the Rush case in
Australia. The trial was conducted under intense public and media scrutiny.
Thanks to their own sensational reporting, The Daily Telegraph had a tall
task: to prove the meaning of their articles—that Rush had committed
sexual assault, had been a sexual predator and pervert, and that his conduct
was such that he would never work at the STC again. The judge, Justice
Wigney, came to the (correct) conclusion that the newspaper’s reporting
was ‘reckless’—which was no fault of Norvill. But given the newspaper
had pleaded truth as its defence, it was Norvill who was on trial. Norvill
was the key witness and took to the stand to defend her initial reports made
to STC.
But after Norvill’s allegations were made public, she was supported by
fellow crew members, who told The Daily Telegraph they believed her. And
there was soon another twist: actor Yael Stone came forward with her own
allegations about Rush involving sexually inappropriate behaviour during a
different production at Belvoir St Theatre. Stone’s decision to go public was
widely praised.
 Neither Stone nor Norvill had wanted to be caught up in a defamation
trial. But both ended up offering their evidence. Stone decided to take to the
stand in support of Norvill, but only came forward late in the trial. For this
reason, the judge refused to let her evidence in, saying it would prejudice
Rush despite the newspaper’s arguments about the fact her evidence would
help prove their case. So it would only be Norvill’s allegations heard at
trial: it was her word against Rush. Who would the judge prefer in the battle
of credibility—and why?
In reaching his judgment, Justice Wigney acknowledged the difficulties
women face giving evidence about sexual harassment because of stress and
trauma they have faced. He also recognised that ‘the absence of
corroboration’ is ‘a common feature of cases involving sexual harassment’.
But he nevertheless came to a decision about Norvill’s credibility that has
caused concern: he found that Norvill’s account was ‘exaggerated and
unreliable’. The judge raised concern about Norvill’s delayed report of
some details, because she had ‘remembered things that [she] hadn’t before’,
as she thought more and more about the allegations. He thought it
significant that Norvill had—after alleged incidents—caught an Uber with
Rush and gone to dinner and a show with him, his daughter and another
man. Surely, if he had done what she said he had (and she was a ‘real
victim’), she wouldn’t socialise with him afterwards in groups or at industry
events? Or so it goes—if you don’t understand power dynamics in the
workplace and in her industry. The judge also cited the fact that she had
made positive statements about Rush during publicity interviews to promote
the King Lear production. Surely, if it was true (and she was a ‘real
victim’), she wouldn’t say anything positive about him in the press? The
newspaper rightly pointed out it was ‘fanciful’ to expect her ‘to sit silently
or give a neutral or guarded answer’ about Rush in promotional media
interviews, especially given the fact it was her job to promote the show and
be positive about her co-star to bring people to the show. Had the judge
assessed her evidence by unrealistic or mythical standards of victimhood?
The judge found in favour of Rush, awarding him $2.9 million in damages
and an injunction.
The judgment received widespread criticism and the hashtag #IbelieveEJ
flooded social media. Journalist Judith Ireland noted ‘gendered discomfort
about the way Norvill was treated as a witness’. The Daily Telegraph
appealed, arguing the judge had demonstrated apprehended bias, including
his treatment of Norvill as a witness and in his refusal to hear Stone’s
evidence. The judge had privileged Rush’s desire for quick ‘vindication’ of
his reputation over allowing the newspaper the opportunity to defend free
speech with evidence that could have proved the truth of their case. But the
appeal was unsuccessful.
The damage was already done. The judgment was said to change the
game for Australian defamation law—and for all the women who watched
how Norvill was treated in the case and in the media. What might have been
a validating moment for survivors of abuse across Australia became just the
opposite. The message was clear: we will not believe you. And your word
alone is not enough.
After the decision, journalist Jenna Price raised concern about the
worrying trend in defamation cases in Australia where it appeared one
woman’s evidence was not enough. She wrote, ‘as one defamation lawyer
joked today, you need three witnesses and a person of impeccable gender,’
adding wryly, ‘[e]xcept that wasn’t a joke’. Would the judge’s conclusion
have been different had he heard Stone’s evidence too?
In Japan, Shiori Ito (see Chapter 2) went to great lengths to get
corroborating evidence of her rape claim. She went to the hotel and got
video footage of Mr Yamaguchi carrying her into the hotel before her
alleged rape, because she was unable to walk. And she got testimony from a
taxi driver to confirm her claims. And even when Shiori had this evidence,
as she told us, the police investigation into what was happened to her was
still closed. But her extraordinary determination and, in some ways, luck in
being able to find this evidence—which later helped her win her defamation
case—does not reflect what most survivors are able to do. Most women are
unable to secure this kind of evidence, if it exists.
Without contemporaneous third-party accounts—and sometimes even
with them—judges and juries are deciding that women shouldn’t be trusted,
and are preferring his account. How many women does it take to come
forward about a perpetrator before they are believed? How many witnesses
does a survivor need to have before she is believed? What evidence does
she need to back up her own words?
The failure to treat her testimony alone as enough, and the associated
problem of testimonial injustice, denies women their truth and their right to
free speech. This is—and should be treated as—a free speech issue: the
failure to fairly consider the evidence denies her right to speak.
Her speech and the public interest

International human rights law—and her right to speak—requires that

speaking out on a matter of public interest is a defence to any defamation
claim.
Public interest is a defence in the law in England and Wales and now in
Australia. In our experience, most women want to run truth defences in
defamation cases because they want to defend their truth—and
understandably so. But the public interest test is an important alternative
defence. What it means is that journalists don’t have to prove the truth of
her allegations, but instead show that her allegations were credible, that
adequate inquiries were made about the facts, that they reasonably believed
that the publication of her allegations was in the public interest—and that
they sought comment from him about her allegations before publication.
Women’s ability to speak out about gender-based violence should always be
treated as a matter of public interest: it is an essential part of violence
prevention and deterrence and is key to ending violence against women.
International human rights courts have recognised this. Let’s look at the
case of Neva Tölle in Croatia, the director of a domestic abuse shelter who
faced a defamation and insult claim in the Zagreb courts. After a woman
and her daughter fled their home and sought housing in her shelter, stating
that they had faced domestic violence, the man then accused Ms Tölle of
kidnapping his daughter. Tölle went on the radio to defend herself and the
shelter, stating that she had not kidnapped the daughter—the mother and
daughter had escaped and sought protection from an abuser. He then
brought a private criminal prosecution against Tölle on charges of
defamation and insult in relation to the allegation that he had abused his
wife. The Croatian courts found Tölle guilty on the basis that she had
tarnished his honour and reputation by alleging that he had abused his wife
—privileging his right to good reputation over her right to free speech.
It took seventeen years for Tölle to fight her case, and ultimately the
European Court of Human Rights found that the Croatian courts had got the
balance wrong. It decided that it was wrong for the Croatian courts to have
found that Tölle had defamed him simply because the father ‘had never
been convicted of domestic violence’, making clear that speech about
domestic violence is not dependent on him being convicted by a court.
 The European court, which includes judges from all Council of Europe
countries, also emphasised that there is little scope to limit free speech
rights ‘on questions of public interest’—which includes violence against
women—even where his right to reputation is involved. The court
concluded that ‘the discussion in the present case—about violence against
women and domestic violence—was clearly one of important public interest
and the subject of a social debate, both at the material time and today’.
Giving Tölle a criminal conviction for speaking on the radio and defending
herself ‘amounted to a sort of censorship’ that might have discouraged the
shelter from promoting its statutory aims in the future. His right to
reputation had been improperly valued over her right to speak out about
violence. The human rights court made clear that requiring a conviction for
domestic violence to defend her speech was simply unrealistic and too
much to ask.
The Tölle case is a landmark decision because it confirms that speaking
out about gender-based violence and domestic violence is a matter of public
interest.
The availability of the public interest test in relation to speech about
sexual violence was first confirmed in the United Kingdom in Economou v.
De Freitas. This was a libel case brought against the father of Eleanor De
Freitas, a young woman who had reported Economou to the police for rape
and was later prosecuted for making a false report but committed suicide
before her trial. In the context of the inquest into her death, her father spoke
out in the media about the state’s decision to prosecute her. The father had
sought to have the scope of the inquest into the cause of her death expanded
to examine the role of the state prosecutors in taking over the private
prosecution that had been initiated by Economou. Mr De Freitas said:

Eleanor was a vulnerable young woman, diagnosed with bipolar, who

made a complaint of rape as a result of which she herself became the
subject of legal proceedings. This was despite the fact the police did
not believe there to be a case against her . . . I feel that the system of
fairness in this country has let me down terribly, and something needs
to be done so that this can never happen again.
De Freitas did not name Economou as the alleged rapist, but Economou was
still able to bring the libel claim. He sued De Freitas, claiming his
comments were defamatory because they implied that there was evidence
that Economou was guilty of rape. But the court ruled that De Freitas’s
speech was protected by the public interest defence.
In considering the public interest, the court emphasised the risk that
women will be too afraid to come forward if they risk facing prosecution
for making false claims. In balancing Economou’s right to reputation
against the public interest in De Freitas’s speech, and the need to ensure that
women can come forward to report their abuse, the court decided that the
balance was in favour of De Freitas being able to speak. The judge
reasoned:

Rape is a very serious crime, and deplored by society. Hence, as Mr

Economou has emphasised, the making of a false allegation of rape
can have very serious implications for the person accused. There is a
public interest in deterring and punishing those who make accusations
of crime against others which they know to be false. But to prosecute
an accuser who has made a true report of crime would be a serious
mistake. Especially so if the crime reported is as grave as rape, a crime
usually carried out in private, without witnesses. There is a strong
public interest in ensuring that the victims of rape come forward.
There has, notoriously, been concern for many years that levels of
reporting are low. There are no doubt many reasons for that. But there
is a real and obvious risk that rape victims may be deterred from
coming forward for fear that, by reporting, they will expose
themselves to a risk of prosecution for perverting the course of justice.

This tragic case established that the public interest defence did protect
Eleanor’s father, with the court agreeing that it is in the public interest to
speak about prosecutorial decisions in false reporting cases because of the
impact it might have on other women coming forward to the police.
In another case in the United Kingdom, the courts have recognised that
reporting about domestic violence and discrimination against women are
matters of public interest to which the public interest defence will apply.
This was in the case we first mentioned in Chapter 1, where Afsana
Lachaux’s ex-husband, Bruno, sued The Independent and The Evening
Standard for publishing stories about Afsana’s allegations of domestic
abuse. The newspapers had reported how Afsana sought refuge with her son
in a women’s shelter in the UAE after she said she had suffered domestic
abuse and was then prosecuted for kidnapping her son for taking him with
her to the shelter. She lost custody of her son after divorce proceedings
brought by Mr Lachaux in the UAE, under laws which discriminate against
women. Afsana returned home to the UK to campaign to get custody back
and sought the help of Southall Black Sisters. She told us that she and her
family had also been threatened with defamation, but that her ex-husband
had only sued the media. Lawyers for the newspapers reached out to Afsana
who was—like Eryn Jean Norvill—willing to help the newspaper defend
her truth and provided them with evidence to support her claims. The media
defended the case arguing truth and public interest.
But while the defamation case wound its way through the courts, the
decision of the family court was handed down. In 2017, a British judge
rejected Afsana’s allegations of abuse—in a decision which has been
criticised as being based on misconceptions about domestic abuse (see
Chapter 1). For Afsana, the family court decision was incredibly traumatic
and a huge blow to her efforts to regain custody of her son. But the ruling
also meant the media decided to withdraw their defence of truth. For
Afsana, this too was difficult. But the decision was not hers to make.
However, she spoke in glowing terms of the sensitivity and respect she was
shown by David Price QC, who defended the media in the case, who had to
break this news to her and who helped her understand why the battleground
was shifting to the public interest in reporting her story.
The judge agreed that publishing information that a woman had been
subjected to domestic violence by her husband, was mistreated by the UAE
authorities and faced an unfair trial over the alleged kidnap of her son, were
all matters of public interest. But the media still lost the case. The problem
wasn’t with the subject matter, but with the journalism. The journalists
themselves could not say they considered the public interest in reporting
Afsana’s story before publication (one couldn’t even remember why he
wrote the article) and they had not taken steps to contact Afsana and verify
her allegations, nor had they sought comment from Mr Lachaux before
publication. Mr Lachaux was awarded £160,000 in compensation and an
injunction to prevent repetition of the allegations.
 The Lachaux case shows that reporting on gender-based violence is a
matter of public interest. But it is also a warning to journalists about
complying with responsible journalistic practices if they want to benefit
from the defence. In Afsana’s case in the United Kingdom, as with Eryn
Jean Norvill in Australia, the journalists failed to do so, leaving lasting
consequences for both women. Even if The Daily Telegraph had been able
to defend the Rush case using the new public interest defence introduced in
2021 in parts of Australia (which was designed to reflect the same public
interest test applied in Lachaux), they would likely not have succeeded. The
Daily Telegraph would not have benefited from the defence because it had
failed to properly verify the allegations with Norvill and because its
reporting was sensational. Both cases have been cited as chilling the media
from reporting on stories on violence against women, but they are, in fact,
both lessons about how not to report these stories. Journalists can and
should still report stories about gender-based violence, and the public
interest test provides important protection for this reporting. But journalists
must always have in mind that when you run a truth defence, the victim
goes on trial; when you run a public interest defence, your journalism goes
on trial.

What does your right mean if you can’t afford to defend it?

Defamation law is complex: our brief explanation of the potential defences

here is oversimplified and incomplete. To bring or defend a claim
effectively, you need specialist defamation counsel, and they do not come
cheap. Geoffrey Rush’s case is reported to have cost around $6 million in
legal fees, which News Corp was liable to pay after losing the case. How
many media organisations, let alone individual women, can afford those
kinds of costs? Nicola Stocker explained that she was fortunate to have
defence counsel acting on a ‘no win, no fee’ agreement, but even the
disbursements to run the case put her under financial strain and stress. If she
hadn’t won in the Supreme Court, she would have been liable to pay her ex-
husband £300,000 in costs. What does the right to free speech mean if you
cannot afford to defend it?
There is no legal aid for defamation cases. Many have run crowd-funded
campaigns to raise funds from concerned members of the public to help
with the cost of defending their free speech. For example, we explained
earlier in this chapter that this was how British comedian Louise Reay
raised funds to defend the defamation case brought by her ex-husband. In
Australia, journalist Nina Funnell, founder of the #LetHerSpeak campaign
with Grace Tame, created a GoFundMe campaign called ‘Enough’ to
support Australian academic Professor Gemma Carey, and any other
women who received defamation threat letters from powerful men in
politics and the media: Christian Porter, Andrew Laming and Peter van
Onselen. The defamation threat letters came from the same firm—Rebekah
Giles’ firm—but related to different tweets and comments that Professor
Carey had made about each of the men. In response to the defamation
threats, Professor Carey apologised to each of them. But the campaign
wasn’t just about Professor Carey: it followed a raft of defamation threats
that had been made against journalists, commentators and activists tweeting
or commenting about allegations of gender-based violence. The campaign,
which was also supported by Australian of the Year Grace Tame, raised
$250,000—far more than the original target of $10,000. Funnell told The
Daily Mail:

It just snowballed. It became very clear very quickly that this issue had
hit a nerve. We want it to go to help as many people as possible but
also we want to highlight the public’s frustration with defamation laws
and the clear impetus for reform . . . Clearly Australians feel
passionately about this issue.

These campaigns must be carefully articulated to avoid his lawyers being

able to claim you are aggravating the damage to his reputation by spreading
the defamation further through the dissemination of your fundraising
campaign. For example, Funnell’s campaign page did not repeat the
allegations that the men had threatened to sue over.
Some crowd-funding campaigns have been anonymised. For example, in
2017, a group of women in the United Kingdom started a crowd-funding
campaign called ‘Solidarity Not Silence’ after they were sued for
defamation by ‘a well-known musician’ over their ‘statements concerning
his mistreatment of women’. They said they were his former partners and
feminist musicians—and raised almost £60,000 for their defence. In 2021
the fundraising website reported:

We’re happy to announce that legal proceedings against members of

Solidarity Not Silence have settled on mutually acceptable terms
without any admissions of liability. We are enormously grateful for
all of your support over the last four and a half years—without it, we
would never have been able to reach this outcome. All of the money
raised has been spent on our legal representation up to this point.
[Emphasis in original]

For journalists wanting to report these stories, it’s not just the cost risk if
you are later sued. As Pia Sarma explained, getting a story wrong and
apologising can still cost £250,000 without going to trial. But to investigate
the stories to a standard that will pass muster—to ensure you can win on a
truth or public interest case in court—takes time and resources that many
media organisations no longer have. With more and more cuts to
investigative journalism and their legal budgets, who can afford to pursue
these stories?
Both plaintiff and defendant counsel have complained about the cost of
bringing and defending defamation proceedings. For example, in the United
Kingdom, two publishers have filed a complaint to the European Court of
Human Rights after having to spend £578,000 to defend their decision to
publish on truth and public interest defences. In their complaint, they assert:

The costs regime connected to the UK’s system of defamation laws,

rules and procedures, does not enable journalists and other media
actors to contribute to public debate effectively and without fear, and
discriminates against all but the wealthiest . . . The regime discourages
the participation of the press in debates about matters of legitimate
public concern . . . The sums involved are life-changing for any
individual save for the wealthiest . . . Small publishers (and many
other defendants) who are unjustly threatened with legal proceedings
face the stark choice between offering an undeserved settlement and
financial ruin.
The complaint, filed in 2021, is pending. As we pointed out earlier in this
chapter, international human rights law requires states to decriminalise
defamation because criminal penalties are considered a disproportionate
interference with the right to free speech. But, as a media law expert
colleague of ours has said, the costs involved in civil defamation claims are
so huge that ‘many would prefer to be prosecuted and cop a nominal
criminal fine than lose their home’. Governments concerned with protecting
free speech and the ability of women to speak out about their abuse must
review costs regimes and their impact on her ability to speak.

Defamation today

The law of defamation has been weaponised by rich and powerful men to
silence women who might speak out against them. Women speaking out and
journalists reporting their stories cannot afford to defend the cases—and
their freedom of speech. This must be acknowledged and made right.
Defamation trials about domestic and sexual abuse also suffer from the
same problems that have plagued criminal trials: difficulty proving
allegations in court, compounded by persistent myths and prejudice that
mean women are not believed and are denied justice.
In the next chapter, we explore how these issues played out in two of the
most high-profile defamation trials in recent history: Johnny Depp’s
defamation claims in the United Kingdom and the United States about
Amber Heard’s allegations of domestic abuse. Jen will give her perspective
on the two trials, which involved the same facts, but different defendants, in
different jurisdictions, offering an unprecedented comparative perspective
of what happens when a woman’s truth goes on trial.
 Chapter 7

HER TRUTH ON TRIAL, TWICE

‘LIAR!’
This word was shouted, over and over, as our car pulled into the side
entrance of the Royal Courts of Justice in London. The crowd of paparazzi
and Depp fans pushed up against the car, jostling for a glimpse of Amber
through the car window. It was the opening morning of the trial in John
Christopher Depp II v. News Group Newspapers Ltd, billed by the tabloids
as ‘the libel trial of the century’. Johnny Depp was suing The Sun for
defamation for calling him a wife-beater: he claimed his ex-wife Amber
Heard had lied about the domestic violence she said she had suffered during
their relationship.
We could hear them before we could see them. Bellowing, yelling,
booing. Among the angry crowd were grown men dressed up as Johnny
Depp—or at least as Jack Sparrow and Edward Scissorhands—pushing up
against the car and milling about in the crowd.
‘Amber, you lie!’ a man screamed. His face pressed up against the
window. Angry fists were banging on our car window. I flinched. ‘You lie,
you lie!’
These men weren’t Johnny Depp. Some had dressed like him, but all of
them had taken up his cause as if it were their own. They held up hand-
drawn placards:
‘Men too’
‘Gold-digger’
‘Amber LIES’
 ‘Amber the Abuser’
I had worked on cases that had drawn a crowd before, but I had never
seen anything like this. Celebrity fandom and misogyny converged. I
reached out to squeeze Amber’s hand. In some ways, she had seen it before.
She was heckled outside court in 2016, when she first got a domestic
violence restraining order against Depp, and had been attacked ever since:
in the media, in Depp’s PR statements and in the avalanche of social media
trolling that followed. But it was shocking—for her and for me—to see it
play out in person.
I was grateful to the newspaper and the court for making arrangements to
allow us to enter through the judge’s security entrance. We needed it.
Amber had to have a personal security guard for the duration of the trial. On
some days, police escorted us in and out of the court gates. Depp walked
through the court’s front door trailed by his usual security team, with
women pressed against the security barriers handing him flowers, hoping
for an autograph. His fans would shout their support and wave their ‘Justice
for Johnny’ signs.
By the first day of the trial in London, it had been four years since Amber
got the restraining order from a Californian judge. In 2018, when Depp had
sued The Sun in the United Kingdom over an article that had called him a
‘wife-beater’, she reached out to me to advise her. In 2019 he sued Amber
personally in the United States over an opinion piece she had written about
the treatment of survivors. In the UK case he was claiming over £300,000
in damages and an injunction to prevent The Sun from ever reporting he
was a ‘wife-beater’ again, which would also stop other media reporting it
too. In the United States, he was claiming US$50 million in damages, more
than enough to bankrupt Amber. Her legal costs were crippling, even for a
Hollywood actor.
But our immediate concern on this day was getting her safely into court,
where she was about to see Depp for the first time since their divorce. She
was also about to be cross-examined about what she describes as the most
traumatic experiences of her life, and they would then be splashed across
front pages and TV screens around the world. As the intimidatory banging,
shouting and abuse at our car windows continued, Amber squeezed my
hand back to let me know she was okay. Our security detail looked alert,
while gently telling us to remain calm: they would get us into the court as
quickly as possible.
 As we got out of the car and entered through the court’s security gates,
the angry crowd of mostly men and middle-aged women gathered at the
fence, continuing to scream abuse at Amber. Their aggression was intense.
Why did they feel the need to come out and show their support for Depp by
shouting horrific abuse at Amber? Why did they feel so strongly about a
case involving celebrities they had never met? How had Depp—and this
case—somehow become, for them, an emblem?
In Johnny Depp, it was as if they saw the victim of a cancel culture
supposedly obsessed with bringing white masculinity down. He was not just
someone suing in costly defamation proceedings with a huge legal team and
a PR campaign of the kind very few people can afford. He had somehow
become an everyman, unfairly accused and subject to the same ‘witch-hunt’
that had seen the demise of every guy who had made an off-colour office
joke since MeToo. Every man who had been sacked for coming onto the
junior women at work or making ‘now inappropriate’ comments. They saw
the jobs they had not been offered because of quotas. They saw their own
ex-wives and custody battles, and the child support they had been forced to
pay. Maybe they sympathised with Depp when they learned he had sent a
message to Elton John calling his ex-wife and mother of his children,
Vanessa Paradis, ‘an extortionist French c***’. Maybe they agreed with his
texts calling women sluts and whores and wishing ruin and death on
Amber, his ex. They saw all of this in Johnny Depp—to them he was not an
out-of-touch celebrity, but an anti-establishment hero, the kind he so
convincingly played in movies.
Depp supporters found each other online, in Reddit forums and comment
threads on YouTube, the same kind of algorithmic echo chambers in which
alt-right culture thrives. Hashtags like #MenToo, #JusticeforJohnny and
#AmberHeardIsaLiar flooded the internet, and were directed at Amber, at
me as her lawyer, and at any film, any brand, any organisation or any
individual associated with her. They were represented in the angry,
disaffected men protesting outside court. Their sentiment was shared by
‘Fathers for Justice’, who drove by the court and around London with a
giant mobile billboard bearing an image of Amber and Depp and the words
‘Ditch the Witch’.
These online attacks and in-person protests weren’t spontaneous: they
were often reflecting and repeating the misogynistic language from Depp’s
own words; they echoed his text messages, made public as evidence in
court, and the harmful myth-filled public messaging that had been coming
from Depp’s lawyer, Adam Waldman. Depp had sent texts calling Amber ‘a
scumbag, gold-digging cunt’, a whore and a witch; he joked about wanting
to drown and burn her—and ‘fuck her burnt corpse to make sure she’s
dead’. Waldman ran a relentless PR campaign: he claimed it was Amber
who was ‘a violent abuser’ and who had ‘repeatedly violently attacked and
severely injured’ Depp. He claimed she had ‘faked abuse allegations’
against Depp, motivated by money, that she was a gold-digger who had
even ‘painted on [her own] ‘bruises’ to be able to ‘masquerade as victim’.
Waldman’s constant refrain was that Amber was not a ‘real victim’.
According to him, she had ‘abused the trust and experiences of real
survivors for her own reputational gain’ and ‘defraud[ed] her abused hoax
victim Mr. Depp, the #metoo movement . . . and other real abuse victims
worldwide’. ‘Does the #metoo movement care about male victims too?’
Waldman asked. His narrative dominated online spaces and was amplified
by parts of the media.
Amber had not spoken in public about the violence she said she suffered
during her relationship with Depp, nor did she ever want to. Before Depp’s
defamation claim, Amber had only told a judge in California enough detail
about the violence to obtain a restraining order back in 2016. Once she got
the restraining order, she had no interest in talking about it again, and she
had signed an NDA as part of their divorce that prevented her from doing
so. When Depp sued The Sun, Amber had not given a single media
interview about the violence she said she had suffered during their
relationship. Depp sued over an opinion piece by journalist Dan Wootton,
which The Sun had published without speaking to her and without seeking
her comment. But the newspaper was going to defend the case on truth, so
her truth was going on trial. Depp’s defamation claim meant she would give
evidence before a British judge to defend her truth, not because she wanted
to but because he decided to sue and claim that she had lied.
The stage was set: he was the powerful, much-loved movie star calling
her a liar. She was the younger woman, who left him, got a restraining order
and was trying to get on with her career. She said he was violent, he
vehemently denied it—so it would be left to the judge. Who was to be
believed? The judge had to decide: had The Sun published things about
Depp that were true? And, by extension, had Amber told the truth about his
domestic violence?
 Amber and I had spent two years gathering evidence to corroborate her
allegations: photos, text messages, medical records, witness evidence. She
had, in my view, far more evidence than most victims of domestic abuse.
We worked together with the lawyers for the newspaper he sued to help
build their defence. I sat with Amber and her sister through sixteen days of
evidence in London. I watched on as she and Depp were cross-examined
over fourteen separate incidents of violence, including sexual violence,
which was heard in closed court to protect what was left of her privacy. As I
sat in court, I watched as Depp’s defence used all the old, gendered tropes:
she lied, she nagged him, she picked fights, she stood up to him, she was
not a ‘real victim’. If it was true, why didn’t you leave him? If it was true,
why didn’t you go to the police? Her answers were constant: I loved him. I
wanted him to get sober. I thought if I could just help him get sober, the
‘monster’ would go away and the violence would stop. I was trying to help
him to get better. I didn’t want the media or anyone else to know what he’d
done.
Everything about the UK trial—from the crowd outside court to the way
it was covered in parts of the media and how it was argued in the courtroom
—left me feeling depressed about how far we still have to go as a society
when it comes to the treatment of women who have made allegations of
gender-based violence.
As the trial progressed, friends and colleagues called me to check in.
They were observing from afar, trying to understand the trial through media
reports and discussion online. ‘It doesn’t seem to be going well for her,’
was their almost uniform comment. It was striking to me because, with the
benefit of being in the courtroom and having a close understanding of the
evidence, the opposite was true: it was obvious to me that it was going well
for Amber and for the newspaper. Where was the disjunct coming from?
How was it that what I was seeing inside court was not being reflected in
public understanding?
At the conclusion of the trial, Amber gave her one and only public
statement about the case on the steps of the Royal Courts of Justice, amid
boos and taunts from the Depp fans jostling behind the media’s cameras.
She said this:

I travelled to the UK to testify in these proceedings as a witness to

assist the Court. After obtaining a restraining order in 2016 and
 finalising our divorce, I wanted to move on with my life. I did not file
this lawsuit and, despite its significance, I would prefer not to have
been in court. It has been incredibly painful to relive the break-up of
my relationship, have my motives and my truth questioned, and the
most traumatic details of my life with Johnny shared in court and
broadcast around the world. I stand by my testimony in court and I
now place my faith in British justice.

Four months later, the judgment arrived in my inbox. I had been sitting at
home, anxiously waiting for it to arrive. Because Amber was a witness, and
not a party, we had not had advance notice of the outcome (Depp and the
newspaper had, but they were not allowed to tell us). When it popped up, I
quickly scrolled through the 129-page judgment to understand the judge’s
findings on incident after incident of alleged violence. Amber’s faith in
British justice had not been misplaced: Mr Justice Nicol found that what
The Sun had published was substantially true. With his decision, the judge
gave Amber the message she had long deserved: I believe you. But it was
much more than that: the judgment set out, in meticulous detail the witness
evidence, issues of witness credibility and corroborating evidence to
explain why the judge could reach the conclusion that twelve of the
fourteen incidents of violence in dispute, including an incident of sexual
violence, were proven to the civil standard of proof. I immediately called
Amber to give her the good news: she had been vindicated. Messages of
congratulations flooded in from friends, colleagues and journalists who had
been covering the case.
Depp had lost his case. The Sun ran a triumphant headline and front page:
‘On behalf of all domestic abuse survivors we can now confirm that HE IS
A WIFE-BEATER.’ His lawyers protested what they called ‘a perverse and
bewildering’ decision, but his appeal was rejected.
The outcome was hailed by domestic violence charities, after ‘a trial
which exemplified tactics used to silence and discredit victims’. Lisa King
of Refuge, the United Kingdom’s largest specialist domestic violence
service, said the ruling was ‘a very powerful message . . . power, fame and
resources cannot be used to silence women’. Harriet Wistrich from the
Centre for Women’s Justice said the decision ‘will serve as a warning to
men who think they can silence those who speak out about their abuse’. All
of the charities highlighted the problem that had prompted us to want to
write this book long before the Depp case came across my desk: defamation
laws are being used to silence women.
It was a big win—for Amber, for the newspaper, and for all women—
setting a precedent that would deter the powerful from suing to silence.
The judgment had restored my faith about the progress that had been
made in how women are treated in the courts, if not in the media and online.
‘Surely, no one could doubt her now?’ I thought to myself. But how wrong
I was. Whatever had horrified me about the media coverage, online trolling
and angry mob of Depp supporters during the UK trial was nothing
compared to what was to come in the United States.
Two years later, on the same set of facts, the same outdated arguments
were run again before a jury in Virginia. Only this time it worked. The jury
found against Amber.
Two cases, two very different outcomes—which shows what can happen
when her truth goes on trial. But how did it all come about?

The backdrop

In 2016, a story circulated. It was widely reported, but it didn’t set the
world alight—or spark a movement in Hollywood or anywhere else. Amber
Heard had taken out a restraining order against her husband, and soon to be
ex-husband, Johnny Depp.
‘During the entirety of our relationship, Johnny Depp has been verbally
and physically abusive to me,’ said her witness statement to the court, a
public document. But their divorce settlement contained an NDA, and a
non-disparagement clause, and for a while neither of them spoke about the
matter—or each other—again. All that could be said publicly after the
divorce was contained in this joint statement: ‘Our relationship was
intensely passionate and at times volatile but always bound by love. Neither
party has made false accusations for financial gain. There was never any
intent of physical or emotional harm.’
I remember reading this carefully worded statement in the media, years
before I met Amber. I was struck by its wording: it did not say there was no
physical violence; it merely said that none was intended. And it included
language that addressed any suggestion she had lied in order to extract a
bigger divorce settlement. Amber’s actions spoke even louder than those
words: the amount of her divorce settlement was low by Californian
standards—given Depp’s wealth and earnings—and she pledged all of it to
charity. These didn’t seem to me to be the actions of someone out to ruin a
man’s reputation or get rich by making unfounded domestic violence
claims. (The judge in the UK case would later agree, concluding that
Amber’s actions were not those ‘one would expect of a gold-digger’.)
But the world moved on and the restraining order became a footnote in
the glossy magazine timelines of their relationship and in their public
profiles. Depp continued his career as a star leading man, including in J.K.
Rowling’s billion-dollar franchise films. The following year, when MeToo
exposed Harvey Weinstein and the PR and legal machine that had protected
him, Amber’s allegations against Depp were not part of the conversation,
nor did she seek to make them so. Having signed an NDA, she did not talk
to the media. Again, these did not seem like the actions of a woman who
made allegations for money or fame.
But tides had turned enough after MeToo that people started to question
why Rowling had cast Depp in the role, and a discussion about the
restraining order resurfaced (even though Amber was not able to and had
not spoken about her allegations outside of court). In response to growing
public criticism, Rowling put out a public statement defending her decision,
saying she was ‘genuinely happy’ to cast Depp. That’s how it came to be
that Johnny Depp sued The Sun—for an article it published titled ‘GONE
POTTY: How can JK Rowling be “genuinely happy” casting Johnny Depp
in the new Fantastic Beasts film after assault claim?’
In it, journalist Dan Wootton quoted actor Caitlin Dulany:

‘We would like to see things change in this industry and not see people
who have allegedly victimised women. It is not much of a change if
you are seeing people rewarded with roles. Amber has been through a
difficult time with him. But it seems like what happened hasn’t really
affected Johnny.’

What was striking about Depp’s decision to sue The Sun was that the
article wasn’t the first to report on the claims of assault made against him,
nor was it the first article to raise concerns about J.K. Rowling’s decision to
cast him.
 Four months before the Sun article, a very similar opinion piece by
Hadley Freeman had appeared in The Guardian, in December 2017,
referring to Depp as a ‘wife batterer’. Both articles referred to the
restraining order and criticised Rowling’s casting decision, pointing out that
it did not sit easily with her public advocacy for women. But Depp chose to
sue The Sun, not The Guardian or any of the other publications in the
United States or elsewhere that had published stories about the abuse
allegations.
For lawyers who understood media law, it came as no surprise that Depp
chose to sue in London. Defamation law in the United Kingdom is
notoriously pro-claimant—and, for this reason, has been described as ‘the
libel capital of the world’. As we explained in Chapter 6, by suing in the
United Kingdom, the burden of proof fell on the newspaper to prove its
claim about Depp’s abuse. The actor and his lawyers chose The Sun as the
defendant, a tabloid that would be unlikely to arouse the sympathy of much
of the public, or of fellow celebrities or Hollywood executives. For those in
the film industry, it was no coincidence that he chose to bring suit over this
article, which focused on J.K. Rowling and her upcoming film franchise.
And with concern for gender-based violence on the rise around the world
after MeToo, an investment worth hundreds of millions of dollars was at
stake.
In the lead-up to the trial in London, I asked a talent agent in Los
Angeles why Amber was not receiving more support in a post-MeToo
Hollywood. He replied, ‘To be frank, no one wants to be on the wrong side
of Depp’s comeback.’ It became clear to me that Amber was up against
every film industry executive and agent who stood to make, or wanted to
make, money from Depp.
Depp had chosen to sue The Sun. Amber had not been interviewed for the
article or asked for comment. Wootton had based his opinion piece on the
publicly available evidence that had been before the Californian judge who
had granted the restraining order. Amber was not a party to these
defamation proceedings, and had no control over how they were conducted.
She was merely a witness, asked by The Sun to give evidence to help them
prove she had not lied about the abuse she suffered in their relationship.
When Amber first called me about the case, I explained how she—like
Eryn Jean Norvill in the Geoffrey Rush defamation case in Australia, and so
many other women in cases like these—was in an invidious position. The
Sun had published its piece without speaking to her since it was an opinion
piece, but was pleading truth as its defence and relying on Amber’s
statement to the Californian court as proof. The burden of proof was on the
newspaper, not on Depp, and he would turn up to court and say that she had
lied to the Californian court. Amber did not want to have to get involved,
but she wanted to defend her truth and was concerned about what would
happen if she didn’t. I explained to her that The Sun could at any time
choose to settle for commercial reasons—and if it did, Depp would use the
settlement to say she had lied, and that Rupert Murdoch’s paper agreed with
him or weren’t prepared to defend it in court. If it went to trial, whatever he
said about her in court would be reported around the world, without her side
of the story being told. And if Depp won, she would be called a liar, and he
would get an injunction preventing The Sun from repeating the claim that
he was violent towards her, which would also deter others from repeating it.
In considering Amber’s position, I always had in mind how Norvill was
treated in the Rush trial in Australia. Norvill had been, like Amber,
understandably reluctant to give evidence for a tabloid. She had only agreed
to participate just weeks before trial, which meant the newspaper had not
had the benefit of her assistance in preparing the case, and her initial
witness statement had been prepared without consulting with the
newspaper’s lawyers, so it was not as comprehensive as it needed to be. As
they would complain in their appeal, the judge made adverse findings about
Norvill’s credibility because of the deficiency in her witness statement. I
did not want Amber to be put in that same position. If she wanted to give
evidence, we needed to be prepared and we needed to work closely with the
newspaper so they could win.
Faced with this prospect, Amber chose to give evidence. News Group
Newspapers, their editor and their brilliant legal team were committed to
fighting the matter—and free speech—all the way, and treated her with
respect and sensitivity throughout.
After Depp filed the defamation claim, his PR campaign kicked into gear.
It did not start well.
In July 2018, Depp gave an interview to Rolling Stone that resulted in a
profile piece entitled ‘The Trouble with Johnny Depp’. The article was later
described as ‘damning’ and a ‘PR disaster’, outlining—among many
problems—Depp’s issues with drugs and alcohol, his financial woes, his
failure to perform on set, and Amber’s ‘persuasive allegations of physical
abuse’. It described Depp as ‘an aging man-child’, ‘oblivious to any
personal complicity in his current predicament’.
Crisis-management firm Hawthorn was brought in. Later, GQ would
explain that Hawthorn acts for ‘exceptionally wealthy clients [who] call if
there’s no one else to call’; its staff were ‘the Harvey Keitels of this world:
wolf men, fixers, public-image adjustment specialists’. The result was a
new—fawning—profile in GQ, titled ‘Johnny Depp Will Not Be Buried’. In
it, Depp asserted that ‘there’s no truth’ to Amber’s allegations of domestic
violence, and that ‘the truth will come out in all of this and I will be
standing on the right side of the roaring rapids’.
The GQ cover story epitomised the stereotypes, biases and assumptions
we see in the media when reporting on gender-based violence. A New
Statesman article issued a reminder to the men’s magazine: ‘GQ: being
accused of domestic abuse does not make you cool.’ In her critique of the
GQ profile, Anna Leszkiewicz highlighted how ‘Depp is glorified as a
modern-day Odysseus or Perseus’, noting GQ’s references to Odysseus’s
triumph over the Sirens, and how Depp had metaphorically ‘looked into the
Gorgon Medusa’s eyes to see for himself life’s savage reality’. Leszkiewicz
sardonically pointed out the obvious reason why these particular myths
were deemed to be relevant to Depp’s story: each involve ‘legendary tales
of heroic men overcoming tempting, manipulative, or vengeful women’.
This was just a snapshot of the media messaging in the lead up to trial to
paint Amber as a liar and abuser and Depp as the ‘nice guy’ victim.
Celebrity friend after celebrity friend gave statements in support of Depp.
He was a ‘sweet’, ‘kind’ friend and father, and a ‘gentleman’. Javier
Bardem, in a declaration for the US proceedings, even claimed that
Amber’s allegations were ‘false facts’ and ‘lies’, though it is unclear how
he was in a position to attest to the truth or otherwise of what happened
behind closed doors. His ex-wife Vanessa Paradis said it was not the ‘true
Johnny’ she knew, repeating the exact same phrase as Bardem: the
allegations were ‘false facts’. Winona Ryder said in her statement that the
allegations were ‘impossible to believe’, though neither she nor Paradis
would appear in the London court to allow us to cross-examine them about
what they had said in their statements about their relationship with Depp.
(Depp’s lawyers would later say in court that they were not needed, but it
was later reported that Ryder had hired a former US prosecutor to block the
use of her testimony in the UK trial.) But their statements were still used in
the PR campaign to undermine Amber’s credibility with the public: if he
didn’t do it to them, then he didn’t do it to Amber—or so it goes.
Whatever was said about his character, there was nothing sweet or kind
about Depp’s PR campaign. His US attorney, Waldman, speaking on Depp’s
behalf and at his behest, was aggressive. His regular missives repeated all
the old tropes. To build his desired public narrative that Amber was the
abuser, and to place pressure on The Sun to settle before trial, Waldman
selectively leaked evidence to the media, in violation of a US court order,
which would later result in the US judge kicking Waldman off the court
record. Waldman later admitted to having leaked a heavily edited version of
a recording of an argument Depp and Amber had about domestic violence
in their relationship in which Amber admits to having hit him. (Her
evidence was that she had acted in self-defence.)
This fed a public narrative that their relationship was one of ‘mutual
abuse’, a harmful myth that has been rejected by domestic violence experts.
They point out there is always a primary aggressor in an abusive
relationship; the fact that a woman acts in self-defence should not be seized
upon as evidence that she is the abusive partner. This didn’t stop the term
from being thrown around in the media before the UK trial (and later in the
US proceedings). For example, Piers Morgan claimed that their relationship
was ‘a mutually abusive situation’ and that the case ‘diminishes people that
go through real abuse’ (again: Amber was not a ‘real victim’). Morgan
wasn’t alone: Sharon Osbourne also opined that ‘she gave him as good as
she got’.
Meanwhile, a sea of online trolls targeted Amber, us as her lawyers, and
the journalists reporting on the case. An online petition calling for her to be
dropped from the Aquaman sequel attracted 400,000 signatures. After
Amber appeared at an International Women’s Day event for my chambers,
my Doughty Street colleagues and I were flooded with what appeared to be
bot-generated emails and tweets saying that we had been associating with a
‘criminal’ and an ‘abuser’. It was sophisticated: it targeted everyone who
had been pictured with Amber, tweeted about Amber or tweeted about
being at the event—not just with tweets, but with emails addressed to their
workplace. Colleague after colleague forwarded me the identical tweets and
emails they had received. UN Women, who Amber had worked with, was
also targeted, along with the brands Amber worked with. The message was
clear: don’t believe Amber, don’t associate with her, don’t defend her—and
don’t hire her.
Despite Amber’s position as a witness, the UK defamation case was
repeatedly mischaracterised in the media as a spat between Depp and
Amber in which she had equal agency, even though she had been dragged
into it as a third-party witness. For example, The Times ran a headline
describing Depp’s case against the newspaper as the ‘Depp v Heard court
duel’. Meanwhile, Piers Morgan raged on Good Morning Britain that Depp
and Heard were ‘spoiled brats’ for subjecting Britain to a ‘circus’ during a
pandemic. At the same time, Depp’s team complained that because Amber
was not a party, she didn’t have the same disclosure obligations as he did.
As was pointed out during the various pre-trial hearings about disclosure,
and by the judge in his final judgment, Depp was well advised when he
chose to sue the newspaper—and should have been aware of all the
consequences that would flow from that decision.
The UK case was mired by Depp’s repeated failures to disclose relevant
evidence—in fact, Depp’s entire case was nearly struck out because of it.
His firm, Brown Rudnick, disclosed by accident 70,000 of Depp’s personal
text messages (every lawyer everywhere will shudder at the thought of
being responsible for clicking send on that email). But within the material
accidentally disclosed were text messages that were relevant to the case and
should have already been disclosed, including the now infamous texts
between Depp and actor Paul Bettany joking about wanting to drown and
burn Amber and rape her corpse. And Waldman, the US attorney, had been
leaking evidence to the Daily Mail that had not been disclosed to the
newspaper in the UK case. Just before trial it emerged that Depp had failed
to disclose even more relevant text messages—this time, texts showing
Depp had lied about his drug use in Australia at the time of one incident of
alleged violence—and thereby violated court orders for disclosure. The
existence of these texts was only brought to the British court’s attention
because Amber had received them in disclosure for the US proceedings,
and we were able to identify the gap and alert the newspaper’s lawyers.
Depp then sought sanctions against Amber in the US proceedings for
having pointed this out. The newspaper sought to have the proceedings
struck out and argued that Depp’s conduct amounted to ‘threats’ and
‘intimidation’ of Amber, as a witness seeking to assist the court. The judge
allowed the UK trial to go ahead—despite Depp’s violation of court orders
for disclosure—but on one condition: Depp had to provide an undertaking
to the court that he would not seek sanctions against Amber in the United
States.
Depp also sought to exclude Amber from attending the trial until after
she had given evidence. The newspaper opposed his application on the
basis that it would have meant Amber would not have been allowed in court
while he and his witnesses gave evidence and so would not be able to assist
the newspaper in responding to the allegations made about her and what
happened. His lawyers argued that she was a witness, not a party, and that
she should not be allowed to observe the rest of the evidence before giving
her own. The judge refused Depp’s application, stating that while the
newspaper was defending the case, it was relying ‘heavily’ on what Amber
said and excluding her ‘would inhibit the defendants in the conduct of their
defense’. So the trial was going ahead—and Amber and I would both be in
the courtroom to assess Depp’s evidence and help the newspaper rebut it.

The UK trial

It was one thing for Depp and his supporters to make all kinds of claims in
the media and online, but it was another to make them in court where a
judge would decide. The Sun’s opening statement to the court made this
distinction clear:

The assaults upon Ms Heard have continued, no longer through the

physical assaults by her ex-husband but by the campaign of
vilification which has been orchestrated by others on his behalf.
Documents that have been provided during court proceedings have
been leaked, often selectively, providing a distorted picture of the
reality. This case will not be decided on media leaks and public
relations campaigns but on evidence.

In court, I observed how Depp’s evidence and arguments continued with

the gendered tropes we had seen in his lawyer’s public statements—the
kind you find warnings about in judicial bench books for family and
criminal proceedings. Depp’s lawyers claimed that Amber’s allegations of
domestic and sexual violence were ‘fiction’ because they were delayed,
raised ‘very late’ and only in the context of the defamation case (even
though this was the first time she was ever asked to set them out in detail).
Her allegations couldn’t be true because her friends hadn’t witnessed them,
because she had not sought medical treatment for her injuries after each and
every incident, because she had not reported him to the police, and because
she had only documented her injuries in respect of some incidents, but not
all of them.
On this last point, Amber was damned if she did and damned if she
didn’t: Depp argued that the fact she had photos of her injuries was
evidence that her claims were a hoax, but the fact she didn’t have photos of
injuries from some other incidents also meant those incidents did not
happen. His counsel, David Sherborne, even went so far as to say:

[I]n all the years of violence she alleges, when she has her phone at the
ready, where is the secret recording of Mr Depp knocking seven bells
out of her, grabbing her by the throat, pulling her hair, screaming at
her, threatening to kill her, or any of the other acts of brutality which
he is said to have perpetrated against her on a regular basis throughout
these years? Nowhere, is the answer.

What was Amber expected to have done while Depp dragged her by the
hair, punched her and threatened to kill her—take a selfie? As the one video
of Depp in a violent rage (widely available on YouTube) shows, after Depp
smashes his wine glass and violently kicks a cupboard, his discovery that
Amber is filming him only infuriates him further.
The tropes continued. If he really hit her, why didn’t she just leave? It
couldn’t be true because she hadn’t left him. He couldn’t have controlled
her because (he alleged) she had extramarital affairs (for which he had no
proof). Mr Sherborne even quipped in court, ‘She was not controlled. She
was barely controllable as a witness.’ Depp’s counsel asserted in court that
Amber was not a ‘vulnerable victim’ or a real victim because she didn’t go
to the police or a hospital, because she was capable of ‘standing up to’
Depp and hitting him, because she was ‘a financially independent woman
and an actress’ and ‘a woman with all the choices’, and because she was
capable of documenting her injuries.
 At times, it even seemed as though Depp was running a provocation
defence from the 1960s, with his lawyers arguing that Amber ‘deliberately
provokes arguments’: she had nagged him, ‘berated him’, verbally fought
him, ‘lied about extra-marital affairs’, denied him certain drugs he was
supposed to be detoxing from, and driven him to drink. As Sasha Wass QC
pointed out in closing for The Sun, ‘It is as though Mr Depp is seeking to
justify his physical assaults on Ms Heard on the basis that she may have
deserved it.’ She contended, too, that he had ‘sought to deploy the more
old-fashioned methods to discredit women, that she is a gold-digger, a
shrew, an adulterer’—none of which, of course, was relevant to the central
question: had he ever hit her?
Depp’s lawyers repeated in court the offensive lines run in Depp’s PR
campaign: Amber had ‘concocted’ her allegations, the restraining order was
‘a publicity stunt’, she was doing ‘a huge disservice’ to ‘genuine victims’
and ‘the MeToo movement’, and she was ‘exploiting the rising popular
movements for speaking out against violence against women for her own
ends’. Never mind that she had sought the restraining order in 2016, long
before MeToo went viral.
Depp’s own text messages, which were evidence in court, were worse.
On the day after his divorce was finalised and their respectful joint
statement—which his lawyers had agreed—was published, it emerged that
Depp had written this text to his agent about Amber:

She’s begging for global humiliation. She’s gonna get it . . . But she
sucked Mollusk’s [a reference to Elon Musk] crooked dick and he
gave her some shitty lawyers. I have no mercy, no fear and not an
ounce of emotion or what I thought was love for this gold digging, low
level, dime a dozen, mushy, pointless dangling overused flappy fish
market . . . I cannot wait to have this waste of a cum guzzler out of my
life. She will hit the wall hard. I met a fucking sublime little Russian
here . . . which made me realise that time I blew on the 50cent stripper
. . . I would not touch her with a goddam glove. I can only hope that
karma kicks in and takes the gift of breath from her. Sorry man but
now I will stop at nothing!
In Depp’s texts, his desire to ruin Amber’s career was clear: ‘I want her
replaced on that [Warner Bros] film’—an aim that, as we saw earlier in this
chapter, was later pursued by his fans via an online petition. Despite
describing himself as ‘a Southern gentleman’ who had respect for women,
Depp’s text messages showed a different picture. Depp describes women as
sluts and fat whores, boasting in one exchange that he would ‘smack the
ugly cunt around’—he was speaking of his ex-wife Vanessa Paradis, whom
he also described as a ‘worthless hooker’.
It was in a text message exchange with Paul Bettany that Depp joked
about murdering Amber to see whether she was a witch, with Depp saying,
‘I will fuck her burnt corpse afterwards to make sure she’s dead.’ ‘My
thoughts exactly,’ Bettany replied.
When Bettany was asked in a later media interview about the texts, he
complained that it was ‘embarrassing’ and ‘unpleasant’ to have his texts
read in court. ‘I’m not sure there’s anybody who has one of these devices
that would feel comfortable having a team of lawyers scour their private
text messages,’ he said. Let it be a warning to anyone bringing a defamation
claim, as Depp did: you must be prepared for the disclosure obligations you
are subjecting yourself to in order to bring your claim. Notably absent from
Bettany’s response was any apology or regret for the language he had used
about women (or, if he did make such a statement, the media did not
publish it). His sole regret appeared to be that the texts were made public.
In her closing address, Sasha Wass QC was forensic. Bringing her
perspective as a criminal barrister who had acted in sex offence cases, she
debunked myth after myth about domestic abuse that had been raised by
Depp’s lawyers in what she described as their ‘outdated and facile’
arguments. She began with the question of corroboration, pointing out that
Amber’s evidence alone was enough to prove The Sun’s case, and noted
that we are ‘long past the days when the courts in this country required
corroboration before accepting the unsupported testimony of a female
complainant’. Not only was Amber a reliable and consistent witness, she
was supported by ‘a wealth of supporting evidence’, including emails, text
messages and the accounts of those she had told at the time, including her
mother, her sister, her friends and medical professionals.
Wass then pointed out that many of Depp’s witnesses had made the
‘unmeritorious’ point that no one had seen him hit her: it was unmeritorious
since domestic violence is usually behind closed doors. It was
‘misconceived’ to suggest that Amber could have left when she wanted to,
and to say that, just because she chose to stay with him, she was not ‘a
genuine victim’. Wass explained Amber’s family history: her father had
been violent to her mother, and her mother had stayed with him until her
death; it was ‘trite to suggest that a person who chooses to stay with a
violent partner cannot be a victim’. As the LA police officers called to give
evidence explained when cross-examined about their training for
responding to domestic violence incidents, ‘a victim may love a perpetrator
and still be in fear of them’, and victims may try to protect the perpetrator,
refuse to give a statement and be so ashamed of the abuse that they are
reluctant to disclose it. And this was no ordinary case: Amber knew that the
moment she made a police report about Depp, it would cause a media storm
and global controversy; the details of their lives would be out there for all to
see. He could also face prosecution and prison. She didn’t want that. As
Wass told the court, ‘[T]he last thing [Amber] wanted was to expose herself
or Mr Depp to ridicule.’
Wass was cutting about Depp’s ‘risible’ theory that Amber’s
documentation of her injuries was some kind of ‘hoax’ or an ‘insurance
policy’, especially since ‘what exactly Ms Heard was insuring against in the
course of this hoax remains unexplained’. She dismissed any suggestion
Amber was a ‘gold-digger’, pointing to the joint statement that Depp had
agreed to sign upon their divorce, which made clear she had not ‘made false
accusations for financial gain’, and to the fact that she had pledged her
divorce settlement to charity. As Amber had said in her evidence, she knew
it would not assist her career to make allegations of domestic violence; in
fact, it was quite the opposite. After all, how many women have ever
benefited from making abuse allegations?
Depp had denied everything and accused her of being the abuser, which
Wass explained was ‘to reverse his role with hers’—the well-known
DARVO tactic to ‘deny, attack and reverse the role of the victim and
offender’, which we explained in Chapter 6. Wass raised concern that the
way Depp had put his case assumed that if Amber had hit him once this
‘absolved Mr Depp from any responsibility for the many occasions when he
assaulted her’ and that ‘she may have deserved it’. As Wass made clear, the
court was not concerned with whether Amber had fought back or lost her
temper. In other words, as the experts say, mutual abuse is not a thing.
There is always a primary aggressor and, on the Sun’s case, it was Depp.
 Wass also pointed out that much of Depp’s case was irrelevant to the
central question: had he hit her? It was irrelevant whether or not she had
affairs, with Elon Musk or anyone else. Depp had applied to try to get third-
party disclosure from Amber of all her personal text messages with Musk,
which he believed would prove his theory about Amber’s supposed affair.
The judge, rightly, refused: the issue of adultery was irrelevant to whether
or not Depp had hit her. As Wass argued, Amber had denied having affairs,
and Depp’s evidence was ‘thin’ at best, dismissing Depp’s ‘old-fashioned
methods to discredit women’.
Turning to Depp’s evidence, Wass showed that Depp had lied about his
drug use—indeed, many forget that Depp’s failure to disclose the text
messages that proved that lie had almost seen the entire case thrown out.
But Depp also showed himself to be an unreliable witness on the stand.
Amber’s evidence was that, in one incident, he had headbutted her, leaving
her with bruising and a suspected broken nose. In Depp’s witness statement
about the same incident, he had claimed he had not touched her and that she
was left uninjured. Long after Depp’s witness statement was served, a
recording came to light. As part of their couples therapy, Amber and Depp
had been recording their discussions and fights. In a recording that we
discovered, and submitted as evidence just before trial, Depp said this: ‘I
headbutted you in the fucking forehead, that doesn’t break a nose.’
When confronted with this evidence in court, Depp conceded he
headbutted her but claimed it was ‘accidental’. When pressed about why—
if this were true—he had not included this in his written statement, he
admitted that he had not read his own witness statement. It was all ‘too
much information’ for him and he blamed his lawyers for the factual error.
The reaction among the lawyers in the courtroom was palpable. A lawyer
for the newspaper turned sharply to catch my eye and we shared a knowing
look: this was a huge blow to Depp’s credibility.
There was a problem with Depp’s answer, as the judge would abruptly
remind him: he had been asked at the outset of his evidence to confirm for
the court that he had read his witness statement and that it was true, and he
had done so.
Depp had also tailored his evidence when confronted with unfavourable
evidence. For example, when confronted with evidence from his former
girlfriend and co-star Ellen Barkin that he had been jealous and had thrown
a bottle at her, he said he didn’t remember it; then he said it had never
happened; and then he claimed that she bore a twenty-year grudge against
him—yes, that old chestnut: the scorned woman. Other parts of his
evidence were contradicted, rather than supported, by the evidence. For
example, he claimed that he had not controlled, or tried to control, Amber,
despite evidence of the texts he had written to her forbidding her from
taking work (‘NO GODDAM MEETINGS???? NO MOVIES’), and a text
to his sister complaining about her working, ‘I don’t need actress bullshit
and her fucking ambition.’ Depp also had direct communication with their
personal nurse, ordering her to medicate Amber to control her (‘CALM
HER DOWN KEEP HER UNDER CONTROL’).
Amber’s evidence was that drugs and alcohol would often bring out ‘the
monster’ and result in outbursts of violence towards her. Depp denied he
ever hit her, but it was also clear his recollection of events was seriously
affected by his substance abuse. For example, he admitted that during an
incident on a private plane where he had disputed Amber’s evidence that he
kicked her, he had in fact ‘blacked out’ and couldn’t remember parts of the
flight. Amber’s account of being kicked was also corroborated by a text
message from Depp’s assistant Stephen Deuters after the flight, saying
‘When I told him he kicked you, he cried.’
There was also evidence that Depp was prone to violence, especially
when using drugs and alcohol, and he himself admitted to ‘losing control’.
The newspaper presented evidence of his history of violent outbursts, which
included trashing a hotel room and causing US$10,000 worth of damage,
assaulting a photographer with a piece of wood, and throwing a bottle at
Barkin, his former partner. At the time the UK case was heard, Depp was
also facing legal action in the United States for assaulting a crew member
on a film set in 2018. (Depp claimed his actions were in self-defence. The
case against him has since been settled—the terms of settlement have not
been made public.)
In her closing submission, Wass said it was clear from the evidence that
Depp had ‘no accountability for his actions’. He was surrounded by people
who never told him no. When giving evidence, Amber expressed concern
that he never faced up to the consequences of his actions and was being
enabled, rather than helped by, the people around him: his security and staff
would clean him and the mess up after his benders, make excuses for his
absences from set, and—rather than help him get clean—prop him up just
enough to try to keep him in work.
 Wass also pointed out how Amber had tried to help Depp kick the drugs,
but he had grown to resent her for it. This was demonstrated by his text
messages to her, including one in which he accuses her of being ‘a lesbian
camp counsellor’ for questioning his substance abuse. ‘Mr Depp has spent
his entire adult life doing exactly what he wanted and he was not about to
answer to a woman at this stage of his life,’ Wass concluded.
The full 129-page judgment is worth reading in detail. There is a
separate, closed judgment, in which the judge made findings about Amber’s
allegations of sexual violence. He found the evidence supported Amber’s
account in twelve of the fourteen incidents of violence pleaded by the
newspaper.
Depp’s team called the decision ‘perverse’. His supporters and online
trolls went into meltdown. Wild claims were made about the judge—and
about me. A flowchart appeared on social media that depicted all the ways
in which I was supposedly connected to the judge—through my chambers
and professional relationships—in an attempt to make the false and absurd
claim that I had improperly influenced the judge’s decision, and that he
somehow had conflicts of interest. Thousands signed online petitions
calling for the judge to be sacked. It was just another online misinformation
campaign that bore no relationship to reality—or what had happened in
court: when Depp appealed, no such complaint was raised.
Depp’s appeal was rejected by the Court of Appeal: the hearing had been
‘full and fair’, with an ‘extremely detailed review of the evidence’, and the
judge’s conclusions had ‘not been shown even arguably to be vitiated by
any error of approach or mistake of law’. As The Sun said, the ‘decision
vindicates the courageous evidence that Amber Heard gave to the court
about domestic abuse, despite repeated attempts to undermine and silence
her’.
But what troubled me was that it didn’t seem to matter. It didn’t seem to
matter that Depp had lost the case. It didn’t seem to matter, to many at least,
that the British courts had found him to be a wife-beater. The vile,
misogynistic and violent language that Depp had used about the women in
his life—which was on display in court and reported in the media for all to
see—didn’t seem to matter either. It was Amber who continued to face
suspicion and online attacks and abuse. The online noise attacking her
drowned out the fact that a judge had ruled she was a survivor—and that
Depp had been violent towards her. What consequences were there for
Depp?
While it was announced that he had been asked to resign from his role in
Rowling’s films, he was reportedly paid his full US$13.5 million salary
because of his contract. Depp continued to win awards for his acting—over
and above the protests of women in film—and kept his ad campaigns for
luxury brand Dior.
For years I had been turning up at Heathrow to see huge Dior
advertisements with Depp’s image promoting a men’s perfume named
‘Sauvage’. Long before I had met Amber, the ads had troubled me ever
since I had read about the domestic violence restraining order against him;
‘sauvage’ is the French word for savage. But these advertisements remained
up around London during and after the defamation trial in 2020—for
Amber and all to see—despite the evidence in court of his violence, and
even evidence that Depp had called himself a ‘fucking savage’. In 2015,
Dior had immediately dropped a previous advertisement with Depp after
complaints and controversy about the appropriation of Native American
culture. But after the US court granted a restraining order against him in
2016, and even after the UK court found Amber’s domestic violence
allegations to be true in 2020, his Dior ads remained up—a decision that
was slammed by domestic violence campaigners. In 2021, after the UK trial
and before the US trial, Dior promoted a new fragrance with Depp called
‘Sauvage Elixir’, describing him as ‘uncompromising, profound, authentic’,
and proclaiming, ‘Never has he been so mesmerising, so rock’n’roll.’ As
one global cosmetics website noted, ‘That’s certainly an interesting take on
domestic violence, Dior.’

The US trial

So how was it that the case ended up being run again in the United States?
Almost six months after Depp sued The Sun, and the year before the UK
trial, Amber was asked to write an op-ed in her capacity as Women’s Rights
Ambassador for the American Civil Liberties Union (ACLU). Her piece,
which was originally drafted by the ACLU team for her, was published in
The Washington Post in December 2018. In it, Amber wrote from personal
experience about how women who speak out need to be supported, and
about necessary law reform to better support survivors. She wrote these
words: ‘[T]wo 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.’ She also described her experience:

I write this as a woman who had to change my phone number weekly

because I was getting death threats. For months, I rarely left my
apartment, and when I did, I was pursued by camera drones and
photographers on foot, on motorcycles and in cars. Tabloid outlets that
posted pictures of me spun them in a negative light. I felt as though I
was on trial in the court of public opinion—and my life and livelihood
depended on myriad judgments far beyond my control. I want to
ensure that women who come forward to talk about violence receive
more support. We are electing representatives who know how deeply
we care about these issues. We can work together to demand changes
to laws and rules and social norms—and to right the imbalances that
have shaped our lives.

Amber didn’t mention Depp or any of the underlying factual allegations of

violence. She was advocating for change for all women—and for more
support for those who choose to speak out. But in January 2019, Depp sued
her personally for US$50 million for writing this op-ed. In response, Amber
later filed a defamation countersuit for the ‘malicious’ public campaign he
had run against her to ruin her reputation and her career, ‘because she was
the victim of domestic abuse . . . and had the audacity and temerity to
finally come forward to end the abuse’.
Depp put her on trial again in Virginia. We explained in Chapter 6 how
people forum shop and choose the most advantageous place to bring their
claim. So why did Depp choose Virginia, a state where Amber said she had
never been before? Depp could sue there because it is where The
Washington Post is printed. As Depp’s lawyers admitted in court, they
chose to sue Amber in Virginia, rather than in California where they both
live, because there were no anti-SLAPP laws in Virginia that could have
enabled her to strike out his claim and stop him from suing her. We discuss
the possibility of anti-SLAPP laws further in the next chapter.
 It should have been more difficult for Depp to win in the United States:
the burden of proof fell on him. By rights, she should have won—on the
evidence, and based on the United States’ supposedly more stringent free
speech protection under the First Amendment to the Constitution and the
rule in New York Times Co. v. Sullivan that we discussed in Chapter 6. She
tried to have the case thrown out on this basis: the UK court had already
found her allegations to be true, so why do it all over again when he
couldn’t prove it the first time?
The judge refused, and Depp got another day in court—or another month,
in fact. And this time it was before a jury.
The trial was, at Depp’s request, broadcast live online. Depp had wanted
the trial televised, Amber had opposed it. There are rules in Virginia
prohibiting the broadcast of evidence about sexual violence in criminal
trials. But in civil trials, the judge has the discretion to allow it—and she
did. When I spoke to Amber before the trial, she was devastated by this
decision: it was hard enough giving evidence in court in front of the media
and public in London. But in Virginia she was going to have to do it again
—and this time broadcast live for the world’s entertainment. In granting
Depp’s request, the judge said there would be restrictions on what could be
photographed and filmed. ‘It will be a tight leash,’ the judge is reported to
have said, though in practice it didn’t seem to work out that way.
Depp had vowed to take revenge upon Amber after she left him back in
2016. As he had written in a text message to his agent, ‘She is begging for
global humiliation. She is going to get it.’ In 2022, the court let him have
his way: Amber was required to give evidence about domestic violence and
sexual assault streamed live on television and on YouTube.
I did not act for her in the US trial and was merely observing from afar.
Watching the YouTube stream was thoroughly depressing: the live
comments function was enabled, showing second-by-second comments
from people from all over the world, which were filled with misogyny and
harmful myths about gender-based violence. Thousands of pro-Depp social
media videos and internet memes mocked her and her evidence, promoting
the same harmful myths. Friends called me during the trial, concerned that
their children were beginning to repeat the old sexist tropes they were
absorbing via Instagram and TikTok videos. One day Chanel Contos a
survivor advocate, contacted me, distressed, after she saw videos of young
women mocking Amber’s testimony of sexual violence—about being raped
with a bottle—and saying they wished Johnny had done it to them. It made
us both feel sick.
It also painted a skewed picture of the facts and the evidence—in a case
where the jury was not sequestered.
Depp’s team ran the same ‘outdated and facile’ arguments that did not
sway the British judge, pandering to the male-centric myths about violence
that studies have shown successfully sway juries and deny women justice.
And, sadly, it worked.
His lawyers—again—claimed that she was the abuser, that she lied, and
that she had doctored the images of her injuries. The fact she had so much
evidence was suspicious—but the evidence she had also wasn’t enough. In
closing, Depp’s lawyer Camille Vasquez told the jury to consider all the
evidence and ‘You either believe all of it, or none of it.’ She said that
Amber didn’t cry enough on the stand (so she couldn’t be a real victim),
and yet, at the same time, Vasquez claimed Amber had given ‘the
performance of her life’. Much was made of Amber being an actor, to
undermine her credibility, even though Depp is also an actor—and one of
the highest-paid in Hollywood. Amber’s was ‘a case of me too without a
“me too”’, claimed Depp’s lawyer Ben Chew, since no woman had accused
Depp before Amber, and no one had accused him since. The submission
may have sounded catchy, but it revealed a fundamental misunderstanding
of what MeToo was actually about: it was not about more than one woman
speaking about the same man (though that happened); it was about women
speaking out to acknowledge they had also suffered abuse. But the clear
message to the jury was that Amber’s word was not enough. And that the
word of one woman is not enough.
Depp’s lawyers called expert evidence, with one claiming Amber
suffered from ‘borderline personality disorder’ along with ‘histrionic
personality disorder’, a controversial, outdated term that has been heavily
criticised for perpetuating sexist stereotypes about women. As author and
survivor advocate Dr Jessica Taylor explains, it is ‘outrageous’ that the
diagnosis would be used in 2022, ‘considering the wealth of evidence that it
is nothing more than a made up, misogynistic label to beat women with’.
She pointed out that making these kinds of allegations is ‘the go-to tactic of
a legal team intent on discrediting a woman’, and that she sees it every day
in her work: ‘Thousands of women are going through the same thing as
Amber as we speak.’
 And it worked.
It didn’t matter that a British judge had already found that Depp had
repeatedly and violently assaulted Amber. It didn’t matter she had more
corroborating evidence than most domestic violence victims. It didn’t
matter that Amber’s expert evidence confirmed that she suffered post-
traumatic stress disorder, and had symptoms consistent with being a victim
of abuse, and that Depp exhibited behaviours consistent with perpetrators of
intimate violence.
It wasn’t enough.
There was no jury direction warning about all the myths and stereotypes
that had been paraded before them. If it had been a criminal case based on
the same facts, they would have been so warned (at least, in the United
Kingdom and other jurisdictions).
The jury found in Depp’s favour. They decided Amber had defamed him,
that she had lied, and that she had done so with malice, and they awarded
him US$10 million in damages and $5 million in punitive damages.
But the jury also found that Depp had defamed Amber, through the
statements of his lawyer, Waldman, claiming that her allegations were a
hoax. She was awarded US$2 million. As Amber’s appeal motion states,
these two findings are ‘inconsistent and irreconcilable’. How can it be that
Amber was defamed when Depp’s lawyer said that her allegations were a
hoax, and yet Depp was also defamed when she said she became a public
figure representing domestic abuse?’
The outcome was absurd. It wasn’t just that the jury had ignored
evidence that had convinced an expert and experienced British judge that
Depp had been repeatedly violent. It wasn’t just that the jury ignored
Depp’s documented history of violence and the expert evidence showing
that he exhibited the traits of an abusive partner. The burden of proof was
on Depp to show he had never been abusive towards her. There was
evidence, which he and his security team had accepted, that Depp had
trashed Amber’s belongings, and—as her US counsel pointed out—that
instance of property damage alone was domestic abuse according to
Virginia law. It also seems that the jury didn’t understand the law: one juror
would later tell the media that they believed that Amber and Depp ‘were
both abusive to each other’, which meant that Amber’s defence of truth was
made out and she should not have lost the case.
 The jury had found that Amber had acted with malice, when it was
Depp’s texts that were filled with spite and ideations of violence, having
expressed his hope ‘that karma kicks in and takes the gift of breath from
her’ and that her ‘rotting corpse is decomposing in the fucking trunk of a
Honda Civic’. In evidence before the jury, Depp had sworn to subject her to
global humiliation, and wanted to have her removed from films. He had
even had the tattoo on his hand changed from her nickname, ‘Slim’, to read
‘Scum’. Her evidence was that she hadn’t wanted to speak out about the
violence because she was trying to protect him but, in the end, she had to.
And yet it was Amber the jury found to have acted with malice. This is the
important test from the New York Times Co. v. Sullivan case we discussed in
Chapter 6: the jury may not have believed her (or the evidence supporting
her account), but they did not have evidence she made the allegations with
malice. There was no evidence she did not believe she was abused, and said
it anyway. Quite the opposite: she said she was abused, she believed it and
she had evidence to support it.
The jury awarded Depp US$5 million in punitive damages, despite the
$350,000 statutory cap, which the judge had to correct (reducing the
amount from $15 million to $10.35 million). As Amber’s appeal explained,
the $10 million damages award was made without any evidence that Depp’s
reputation had actually been damaged by her opinion piece: the jury was
not permitted to see the UK judgment, which clearly showed that, if
anything, his reputation was harmed by the British judge’s decision, which
found that he is a wife-beater, and the large amount of evidence before the
jury that showed he had already been losing roles because of his own
conduct, including his substance abuse problems.
One of the key points used to attack Amber’s credibility was the question
about the donation to charity that she had pledged after their divorce. Depp
claimed she lied: she said she had donated her divorce settlement when she
hadn’t actually given all the money to charity yet. Amber’s answer was the
same as it was in the UK trial: she had pledged the donations ($7 million,
split equally between the ACLU and the LA Children’s Hospital) and had
started making payments, but could not continue to pay the instalments
after Depp sued her—she needed the funds to defend herself from the
defamation action Depp brought against her. Indeed, the ACLU confirmed
for the jury that Amber had made $1.3 million in payments until 2019 (the
same year Depp sued her in the United States), when they ‘learned she was
having financial difficulties’. On the stand in the US trial, she said she used
the words ‘pledge’ and ‘donate’ as synonyms and made clear that she had
started making charity payments and intended to complete the payments
when she could afford to: ‘I would love him to stop suing me so I can.’
Depp had raised this point on appeal in the United Kingdom, claiming her
statements about her donations were misleading. The Court of Appeal
refused his argument, noting that Amber had pledged to pay the charities
US$3.5 million over ten years from 2016, that she intended to meet that
pledge, and that ‘her charitable donation was in itself nothing to do with the
case the Judge had to decide’. Indeed, the court stated explicitly that the
issue of donations came up ‘fairly peripherally’ in the context of Depp’s
‘insurance/hoax thesis’ and that Depp’s own counsel in the United
Kingdom had (rightly) accepted that ‘the question of whether Ms Heard
was a gold-digger was irrelevant’. Accordingly, the Court of Appeal found
there was no reason to believe that the judge’s decision was influenced by
what Amber had said about the donations. But for the US jury it was a
‘fiasco’, according to one anonymous juror who gave media interviews
after the verdict; it had contributed to their decision that her story about
abuse ‘didn’t add up’. It is quite something when her charity commitment,
which she now can’t meet because he sued her, is being held against her,
not him.
Depp’s lawyers’ submissions about what a ‘real victim’ would look like
clearly resonated with the jury. A juror told the media that the jury had
considered Amber’s crying to be ‘crocodile tears’, which made her account
of abuse unbelievable. In other words, she didn’t cry the right way when
recounting her abuse.
Amber’s US counsel, Elaine Bredehoft and Ben Rottenborn, confirmed
that she will be appealing the verdict because it was not ‘just and fair’.
Among the complaints raised was the exclusion of evidence—by Depp’s
team—that had been before the British judge, including medical notes that
confirmed Amber had been telling her therapist about Depp’s abuse going
back to 2012, and that she had sought medical treatment for concussion
after one of the disputed incidents of violence. Depp did not call his
assistant, Stephen Deuters, which also meant that his text messages—used
by the British judge to corroborate Amber’s version of events—were
excluded, including the one in which he told Amber that Depp was sorry to
have kicked her. There is some irony in Depp’s lawyers trying to exclude so
much evidence that was before the British court, especially after his
lawyers’ statement: ‘[W]e hope that in contrast to [the UK] case, the
ongoing libel proceedings in America are equitable, with both parties
providing full disclosure rather than one side strategically cherry picking
what evidence can and cannot be relied upon.’
Amber’s legal team have also raised concerns about the fact the jury
members were not sequestered and had access to social media, where
thousands of pro-Depp posts were circulating, presenting a distorted and
unfair picture of what was happening in court.
Amber’s op-ed had spoken of the wrath she faced for speaking out about
abuse—and, ironically, the trial and the backlash she has faced has only
proven her original point. The hashtag #JusticeforJohnnyDepp had 10
billion hits on TikTok. The trial captured global attention, with 3.5 million
people watching the verdict.
As Jessica Winter observed in The New Yorker, a quick glance at
YouTube, Facebook and Instagram reveals Amber as ‘the Medusa of Sunset
Boulevard’. Right-wing media spent thousands promoting anti-Amber
content on Facebook, while YouTube channels pivoted to anti-Amber
videos, recognising their money-making potential. Merchandise was sold
online, including T-shirts saying ‘Don’t Be An Amber’, ‘Justice For
Johnny’ and ‘Flappy Fish Market’—a reference to Depp’s vile,
misogynistic texts. The worst I have seen was a dildo created by a sex toy
company in the shape of a bottle, so women could ‘pleasure’ themselves to
new ‘Depp-ths’.
Social media analysis that has since been released by the organisation,
Bot Sentinel, showed how the trending of anti-Amber hashtags on Twitter
was not organic, but manipulated. In their July 2022 report, ‘Targeted
Trolling and Trend Manipulation: How Organized Attacks on Amber Heard
and Other Women Thrive on Twitter’, concluded that this had been ‘one of
the worst cases of platform abuse’. There was ‘widespread targeted
harassment’ of Amber and women who spoke out in support of her, with
627 accounts that focused on negative tweets about Amber and her female
supporters, who were doxed and faced death threats. At least 24 per cent of
the accounts were created in the past seven months. It also showed how the
same accounts, since the US trial, have started tweeting negative content
about Evan Rachel Wood, who is being sued by Marilyn Manson (a close
friend of Depp’s) over her abuse accusations about him.
 The findings of the report resonated for me: it is precisely what I had
seen and experienced during the UK trial. Twitter trolls would copy and
paste the tweets posted by Depp’s lawyer, Waldman (who had been warned
by the judge in the UK trial about making intimidating threats about
witnesses), and by other trolls. The discussion I saw on social media often
bore no resemblance to what was happening inside court: it was
overwhelmingly pro-Depp. I have worked on high-profile and controversial
cases in the past, but I had never faced anything like it before; the trolling
was relentless. Everything from my ethics and professionalism to my
appearance and my personal relationship history were attacked. Trolls
vowed to ‘ruin’ me and make sure I never worked again because I had
represented Amber in the United Kingdom, and had proven Depp was a
wife-beater.
And it wasn’t just directed at me: those who spoke about the trial in ways
that were perceived to be critical of Depp or supportive of Amber—whether
journalists or commentators—were trolled. Jess Phillips MP was attacked
for pointing out that women need not be perfect, or even of good character,
to be a victim of abuse. Mark Stephens, who was a disinterested
commentator on the trial, told The Guardian, ‘I’ve seen some high-profile
cases, but I have never seen a response like this . . . the campaigning online
has felt one-sided.’ He also expressed suspicion about the pro-Depp bots
during the trial and how ‘comments supporting Depp are popping up in real
time, just as evidence is being produced in court’.
But whatever I had seen and experienced during the UK trial, it was even
worse during the US trial. Amber received death and rape threats—and
threats towards her baby daughter. I observed how women who spoke in
support of her or simply called out the misogyny on display were shouted
down, attacked and threatened online. I did not act for her in the US trial, I
was not there, and I made no public comment. But I still faced constant
online trolling and threats, with men and women sending me messages
filled with violent threats, misogyny and hate, including telling me that I
had ‘a punchable face too’ and making comments on my appearance, my
intellect and my professional ability. It was striking how many of the
comments and threats appeared to celebrate and justify the violence Amber
had alleged and the vile language used about her. The clear message—to
Amber, to me, to any woman—was to shut up and stay silent. And don’t
dare support Amber.
 So, for me, the Bot Sentinel report confirmed what I had seen and
experienced in both the UK and US trials. And separate from how this
could have affected the jury, is how it affected every other survivor and
woman who watched all of this and might now be deterred from speaking
out because of it.
The televised trial has been described as a modern-day witch trial. I had
been concerned about the judge’s decision to allow it: it would never be
allowed in Australia or the United Kingdom, and it would not be allowed in
the United States in criminal cases involving evidence of sexual violence. It
would later emerge, through the unsealing of court documents, that Depp
had—in a televised trial—tried to introduce evidence including nude
pictures of Amber, evidence about the sexual histories of Amber and her
sister Whitney, and about Amber’s brief stint as an exotic dancer to
‘maliciously’ suggest or imply that Amber had worked as a sex worker. It
was irrelevant and was not permitted in evidence before the jury, but Amber
faced questions about it in her deposition and it is part of the now unsealed
court record (and is now being used by trolls on social media). This line of
questioning and type of evidence is also prohibited in criminal cases about
sexual violence.
The consequences were even worse than I could have imagined—for
Amber and for women everywhere. As Jessica Winter wrote for The New
Yorker:

[I]f you spend enough time inhaling the sulfurous fumes of the Depp–
Heard live stream, what it starts to resemble most is a high-budget,
general-admission form of revenge porn, an act in which the person
with the upper hand in a relationship forces the other to be complicit in
the sharing and dissemination of raw, vulnerable, literally sensational
moments for the delectation of an unseen audience . . . This is who she
is now—the victim of an unprecedented Internet pile-on, a bruised
face on an iPhone, a woman who makes people laugh when she cries.

The trial had ‘turned into a public orgy of misogyny’, wrote Moira
Donegan in The Guardian—and she was right. Arwa Mahdawi also wrote
for The Guardian, ‘If the trial showed us anything, it’s that misogyny is
more alluring to many people than facts’—and she was right too. For
Donegan, the case marked a ‘tipping point’ in the backlash against MeToo.
That backlash was not just against Amber, but against every woman who
dares to speak out.
And the fallout has been global.
Lawyer colleagues around the world have told me their clients are
worried about taking action against their abusers after seeing what
happened to Amber. Some decided not to go ahead. Others reported that
abusive partners were threatening them, saying they were ‘an Amber’ and
no one would believe them.
What message does all of this send to women who might want to speak
out about their abuse? How many women will speak out if this is how they
will be treated? How many more women will have watched this case and
thought, ‘I can’t go through that’? How many women now feel unable to
confide in family members about their experiences after hearing them
ridicule Amber? How many women are now silenced and afraid to come
forward? How many more women will be sued and silenced? And how
many women have to go through this before the cultural narrative shifts
away from the oldest tricks in the book—calling women liars, gold-diggers
and whores?
As journalist Constance Grady wrote back in 2016, Amber did
everything that victims are ‘supposed’ to do. She called the police when it
happened (though she decided not to report and press charges out of
concern for the consequences for him and them both). She then went to a
court with evidence, photos and text messages to get a restraining order.
She showed she was not after the money by pledging to give it all away
(though even that was held against her later for not giving it away quickly
enough). ‘She was, in every way, exactly the kind of victim we say women
should be if they want us to believe them. It didn’t matter. We still said she
was lying.’ After that, Amber didn’t give media interviews about it. But
Depp sued a newspaper and her personally. She gave evidence in court and
a British judge believed her. But the public—and a jury—still didn’t believe
her.
Depp’s ability to litigate the case in two different jurisdictions means that
people can and will continue to believe what they want, and take
diametrically opposed positions on the case, on Depp and on Amber. But it
raises serious questions about what happens when allegations of gender-
based violence go before civil juries without the protections we have for
complainants in criminal cases. So concerning is the US verdict that it has
been described as ‘the biggest blow to the #MeToo movement since its
inception’. Amber’s own statement outside court says it all:

The disappointment I feel today is beyond words. I’m heartbroken that

the mountain of evidence still was not enough to stand up to the
disproportionate power, influence and sway of my ex-husband.
I’m even more disappointed about what this verdict means for other
women. It is a setback. It sets the clock back to a time when a woman
who spoke up and spoke out could be publicly shamed and humiliated.
It sets back the idea that violence against women is to be taken
seriously.
I believe Johnny’s attorneys succeeded in getting the jury to
overlook the key issue of freedom of speech and ignore evidence that
was so conclusive that we won in the UK. I am sad I lost this case. But
I am sadder still that I seem to have lost a right I thought I had as an
American—to speak freely and openly.
 Chapter 8

WHAT ABOUT HER RIGHTS?

A woman tweets on social media that she is a survivor of abuse, using the
hashtag #MeToo. She doesn’t name the alleged abuser but he sues her
anyway.
A woman speaks in a private safe space of survivors about being raped.
She tells the group that her ex-boyfriend raped her. Information is leaked.
He takes his ex-girlfriend to court and gets a gag order that means she can
never tell anyone about the rape again. The judge finds her guilty of
‘emotional abuse’ and harassment against him.
The members of a feminist academic collective publish a report
condemning their universities for failing to tackle sexual harassment and
abuse on campus. A male professor accused of sexually harassing a male
student sues the report’s author in criminal libel proceedings, saying she has
damaged his right to honour and reputation.
The director of a domestic violence shelter is convicted for defaming a
man who accused her of kidnapping his wife and child after they fled to her
shelter.
Amber Heard writes in The Washington Post to advocate for better laws
to protect survivors, and draws on her own experience as a survivor. A
British judge finds she is a survivor in a decision based on detailed
corroborating evidence, but she loses a defamation case on the same facts in
the United States before a jury, which orders her to pay her ex-husband
US$15 million.
 In each of these cases from around the world, the law failed to properly
protect women’s right to speak.
As Justitia reminds us, the law is a constant balancing act, weighing
interests and rights to achieve a just outcome. When it comes to freedom of
speech about gender-based violence, she is weighing his right to privacy
and reputation against her right to free speech and the general public
interest in reporting that speech. Yet courts around the world are too often
getting this balance wrong. The effect of this is to silence women and
silence speech that is necessary to end violence against women. Victims and
survivors of abuse are increasingly demanding that courts uphold her right
to free speech and stop privileging his right to reputation and privacy.
Through our work, we have become convinced that we need to reclaim
free speech from a feminist perspective. We want to make it clear that
speaking out about gender-based violence, in the medium of your choice, is
a human right, protected not just by the right to freedom of speech, but also
the right to equality and the right to be free from violence. As human rights
lawyers, we believe these rights must also be placed in Justitia’s weighing
scales to ensure her right to free speech is better protected in our courts, so
that we can put an end to gender-based violence.

What about his rights?

Let’s first begin with what his rights are—and the concerns we see raised in
response to women choosing to speak out. What about his right to be
presumed innocent? What about his right to a fair trial? As any of our
barrister colleagues in criminal law will tell you, when a woman goes to the
police to report that a burglar breaks into and enters a house and steals an
iPhone, she is believed. But once she mentions a sexual assault, a cloud of
suspicion descends. In the wake of MeToo, where women are choosing to
speak to the media or post online rather than go to the police, even more
questions arise. Why didn’t she report it to the police? What if she is lying?
What if she ruins his reputation and his career with a false allegation?
Shouldn’t he have the right to a fair trial, rather than trial by media?
In the opening essay in The Right to Sex (2021), ‘A Conspiracy Against
Men’, Oxford philosophy professor and essayist Amia Srinivasan explains
how in the United Kingdom only ‘0.23 per cent of rape reports led to a false
arrest, and only 0.07 per cent of rape reports led to a man being falsely
charged with rape’. Srinivasan concludes that ‘a false rape accusation, like a
plane crash, is an objectively unusual event that occupies an outsized place
in the public imagination’. She also explains that the myth of the false rape
accusation is ‘a predominantly wealthy white male preoccupation’.
Nevertheless, this myth—that women make false rape and abuse claims
—is having a resurgence alongside other regressive forces that threaten to
undermine decades of feminist activism and legal progress on women’s
human rights, gender equality and LGBTQI+ rights. Authoritarian right-
wing figures have built platforms arguing that feminism and feminist
activism have made gains at the expense of men and that MeToo has been
an overcorrection. Some have described feminist reforms as a ‘backlash
against masculinity’ and ‘reverse discrimination’. Some argue that domestic
violence perpetrated by women against men is under-reported and left out
of media narratives. Some say that public allegations of gender-based
violence undermine the presumption of innocence, a fundamental tenet of
justice.
These views, which perpetuate old sexist myths and are not supported by
empirical data, have filtered through digital spaces, with a growing online
subculture of men who hate women. The New Yorker has reported on the
violent political ideology of ‘incels’, who believe that women have unjustly
refused certain men a ‘right to sex’ and often ‘subscribe to notions of white
supremacy’. Incel ideology has inspired murders, and aims for ‘absolute
male supremacy’. This is the extreme end of the misogyny spectrum, but
offers important context to the idea that there is a conspiracy against men—
or that there is inevitably discrimination against men in any development
for equality for women. This is all part of the backlash against the MeToo
movement, and has led to calls to strengthen the presumption of innocence
and privacy protections.
In 2017, the same year as the MeToo social media movement took off,
the UK Supreme Court handed down an important judgment about open
justice and how it interacts with the presumption of innocence. The case
known as Khuja concerned the arrest by the police of someone suspected of
being involved in sexual offences against children. He was never charged
and wasn’t prosecuted, but his name came up in court. He sought to keep
his identity secret but the newspapers challenged it. The Supreme Court
explained that the constitutional principle of open justice meant that Mr
Khuja could be named. ‘The law must of course take the presumption of
innocence as its starting point,’ the court said. However, the court also said
that, ‘experience suggests that as a general rule the public understand that
there is a difference between allegation and proof.’
This ruling affirmed the presumption of innocence as a fundamental legal
principle guaranteeing and protecting the rights of the accused in a criminal
trial. The presumption of innocence is protected by the laws of contempt,
which make sure that the trial is fair and that a jury isn’t prejudiced by
media reporting (for example, by reporting that states a person is guilty
before their guilt is determined at trial). But the court’s ruling also affirmed
that this principle must be balanced against other interests, including
freedom of speech and the open justice principle. This means that when
accusations are made in the courtroom, they can be reported by the press,
subject to contempt of court laws.
The debates in the wake of MeToo have not been over whether alleged
perpetrators can be named in court (clearly they can be), but rather about
whether newspapers and survivors can name those alleged of abuse online
or in newspaper articles before any court proceedings have commenced.
Many have argued that doing so amounts to ‘trial by media’ and ‘violates
the presumption of innocence’.
Men’s rights groups have argued that the naming of men online in
relation to allegations of sexual assault, rape or abuse violates the
presumption of innocence. They have even claimed that online movements
such as #IBelieveHer (or #YoTeCreo in Spanish) violate this legal
presumption. This is a basic misunderstanding of the principle. As Amia
Srinivasan explains, this is a ‘category error’, since ‘the presumption of
innocence does not tell us what to believe. It tells us how guilt is to be
established by the law: that is, by a process that deliberately stacks the deck
in favour of the accused.’ She explains that believing women operates
therefore ‘as a corrective norm, a gesture of support for those people—
women—whom the law tends to treat as if they were lying’. As the UK
Supreme Court said in Khuja, the public understands that there is a
difference between an allegation and proof.
The right to be presumed innocent is already well protected—by both
contempt of court and privacy laws. As we explained in Chapter 3,
contempt of court laws protect his right to be presumed innocent once he is
charged. But even widespread media reporting on allegations does not
amount to ‘trial by media’ or necessarily violate his presumption of
innocence. [redacted text]
As Justice McCallum said, ‘[e]xtensive media reporting of allegations of
criminal conduct is not a mischief in itself ’ and recognised that ‘the media
play an important role in drawing attention to allegations of criminal or
other misconduct and any shortcomings in the treatment of such
allegations’. But the trial was later postponed after certain media reporting
[redacted text] failed to respect the distinction between an untested
allegation and guilt. In postponing the trial, the judge warned everyone
about reporting, publishing books and even making comments [redacted
text] in order to protect his right to fair trial. This is a good example of how
his right to a fair trial is well protected and will, in certain circumstances,
trump everyone else’s right to free speech.
As we explained in Chapter 4, in the United Kingdom, there are
increasing (and problematic) privacy protections that protect him from any
media reporting while under police investigation and until charge. And, of
course, there are also defamation laws. Our point is that his rights are well
established and protected in law. The danger is that the creeping mythology
that his rights are under threat is leading to ever greater restrictions on her
right to speak.

The right to speak

Freedom of speech or expression is a fundamental human right and the

cornerstone of a democratic society. International human rights law is clear
that free speech can only be subject to restrictions that are necessary in a
democratic society—and this includes ‘for respect of the rights or
reputations of others’. Human rights courts have explained that free speech
also admits a degree of exaggeration or even provocation—and speech that
may be offensive. In other words, free speech should be the starting point,
and it should be limited by libel and privacy laws only where that is strictly
necessary.
Free speech also protects the right of the press to impart information and
ideas that are in the public interest; the public has a right to receive such
information. The MeToo allegations and reporting on powerful and wealthy
individuals such as Harvey Weinstein, R Kelly and Jeffrey Epstein have
underlined the importance of such reporting and its role in ‘shaking the
tree’, as more women come forward after seeing other women speak out.
Public interest reporting like this has warned and protected other women,
and led to criminal prosecutions and justice for survivors.
In the balance between his right to reputation and her right to free speech,
there is one important question that we think courts too often overlook:
whether the comment contributed to a debate of general interest. In other
words, the wider context is crucial. There is immense public interest in
women being able to speak out about violence. As we argued in Chapter 5
about NDAs and in Chapter 6 about defamation, we believe courts must
place greater emphasis on the broader context of violence against women in
society and the public interest in her speech about it.
Women’s freedom of expression is under attack by state and non-state
actors, as UN experts have repeatedly and recently warned. Women need to
be able to speak out to realise their civil and political rights, and to
participate in political life and public debate, but also to advocate for gender
equality and to call out violence and abuse. Free speech rights ensure that
we can speak about structural and systemic issues that discriminate against
women, such as gender-based violence, to ensure they are addressed and
eradicated. The same rights also ensure that people can express themselves
—their sexuality, their gender identity, their art and their culture.
But there are other rights to consider too.
In recent years, the United Nations has reminded states and governments
that women’s human right to live a ‘life free from gender-based violence is
indivisible from and interdependent with other human rights, including . . .
freedom of expression, movement, participation, assembly and association’.
There is also mounting recognition that freedom of speech is an equality
issue. The United Nations and regional human rights bodies have
recognised that every woman is entitled to the free and full exercise of her
civil, political, economic, social and cultural rights, including freedom of
expression, and they recognise that violence against women prevents and
nullifies the exercise of these rights. Yet too often we see courts fail to
recognise a woman’s right to speak, her right to equality and to be free from
violence, and the broader context of the need to protect. So let’s talk about
her rights.
Her rights to equality and to live her life free from violence
In most defamation cases, discussion of the rights to equality and to live a
life free from gender-based violence is conspicuous by its absence. These
are human rights, just like free speech or the right to privacy and reputation.
While some courts are beginning to recognise how these rights intersect
with free speech, we still have a long way to go. This is the argument we
wanted to raise in the UK Supreme Court as interveners in Nicola Stocker’s
case but were refused permission. Jen also tried to intervene in the case
involving Afsana Lachaux’s allegations of abuse on behalf of the Centre for
Women’s Justice with Caoilfhionn Gallagher QC to make similar
arguments, and was again refused permission. Yet when courts around the
world have considered the rights to equality and to live a life free from
gender-based violence together with the right to free speech, they have
handed down important judgments protecting women’s right to allege abuse
or misconduct.
Women and girls have fundamental human rights, which are protected by
international law. The United Nations reaffirmed this in 1979 with the
enactment of the Convention on the Elimination of All Forms of
Discrimination Against Women, a human rights treaty that guarantees
gender equality, and it was repeated in 1993 at the Vienna World
Conference on Human Rights. Before this, the Universal Declaration of
Human Rights (UDHR) was meant to ensure that all persons had
fundamental human rights but, as we explained in Chapter 1, Jessie Street’s
recommendation that it include an explicit right to be free from violence
was not adopted. Despite all these efforts, it soon became clear that states
and governments needed specific guidance and legal obligations to make
sure they were protecting, respecting and promoting women’s rights,
including the right to be free from violence.
The aim of legal instruments such as the convention, and its monitoring
body, CEDAW, is to achieve gender equality. Since its enactment, which we
mentioned back in Chapter 2, international human rights law has developed:
it now makes clear that violence against women is a gender equality and
human rights issue. This is because violence against women is a form of
gender discrimination. Every woman and girl on this planet has a right to
live her life free from violence—free from the fear of walking down the
street and being raped or killed.
 Today there is an understanding that gender-based violence encompasses
various manifestations: sexual violence such as rape; other forms of
unwanted sexual touching and harassment; forced nudity; sexual assault;
trafficking and forced prostitution; reproductive and obstetric crimes
including forced pregnancy, forced abortion and sterilisation; other forms of
violence including domestic and intimate partner violence; and violence
against women committed over the internet. International treaty committees
and regional courts have handed down landmark judgments recognising
violence against women as a human rights violation and a form of
discrimination against women, while regional human rights conventions
have been drafted that set out state obligations. The courts have recognised
that domestic violence, sexual violence and violence against women
violates a number of human rights, including the right to life, the
prohibition on torture, cruel, inhumane and degrading treatment, the right to
private and family life, and equality and nondiscrimination. International
and regional courts have recognised the particular vulnerability of victims
of domestic and sexual violence, ‘who often fail to report incidents’. They
have also recognised that women are often frightened to speak out about the
violence they suffer.
The former Special Rapporteur on Violence Against Women, Dubravka
Šimonović, the United Nations’ expert on the issue, has called attention to
the fact that we live in a world in which systemic and structural gender-
based violence forms a part of women’s everyday lives and daily routines.
She has explained that ‘[g]ender-based violence against women is a global
plague that affects one in three women worldwide in their lifetime and, as
such, it creates a culture of normalization and tolerance of such violence in
society’.
International law has imposed obligations on states and governments to
ensure that violence against women is prevented, investigated and
prosecuted, and that women are protected from such violence. This is called
the due diligence principle. The right to free speech and the right to live a
life free from violence are both protected under the law. If women can’t talk
about violence, if they are facing libel and privacy claims and injunctions
for talking about their experience of abuse, how can society tackle the
issue?
A number of very worrying legal cases show how women face retaliation
for reporting an abuser to the authorities, including civil suits in defamation.
CEDAW considered a case involving this issue against Kazakhstan. Anna
Belousova tried to report her employer, the director of a school where she
worked, for pressuring her to have sex with him in order to keep her job. He
sued her for defamation and she lost her job—and the defamation case. The
fact that she lost the defamation case was then used against her by the
police, who said there was insufficient evidence to investigate her
allegations against him. This left Anna with no job and no remedy for
reporting the harassment she had experienced in the workplace. Even
worse, the defamation ruling meant she had to apologise to him. CEDAW
found that Kazakhstan violated her human rights.
Irene Khan, the Special Rapporteur on Freedom of Opinion and
Expression, has highlighted the issue: ‘Weaponising the justice system to
silence women feeds impunity while also undermining free speech,’ she
explains. Free speech is essential for accountability. A person who sues for
defamation can effectively steal a woman’s voice, and force her into
litigation to get it back, which undermines our ability as a society to tackle
violence against women.
But there are some important developments: courts are beginning to
recognise that other rights belong in Justitia’s balancing scales, along with
the rights to speech and reputation, and this is tipping the scales towards her
right to speak about the violence she has suffered.
In 2018, the Indian journalist Priya Ramani, who we mentioned in
Chapter 6, found herself facing a charge of criminal defamation for an
article she published in Vogue India and a series of tweets about M.J.
Akbar, a member of the Indian Parliament and the Minister of State for
External Affairs. His lawyers referred to him as a veteran Indian journalist.
In 2017, Ramani named Akbar as having sexually harassed her and other
women in the media. In one tweet she alleged that he was ‘the media’s
biggest sexual predator’. Akbar made a complaint of criminal defamation,
claiming that her allegations were made ‘with the sole ulterior motive of
maligning his reputation and his political standing’. Ramani was arrested
but released on bail pending the determination of the case.
Akbar complained that Ramani had not reported his conduct to any
authority—neither her employer nor the police—and claimed that this
proved it was a ‘figment of her imagination’. Like many women, she was
accused of being vengeful and malicious, and found herself facing the
argument that she shouldn’t be believed because she hadn’t gone to the
police when she said the offending occurred.
The court in New Delhi handed down its carefully considered judgment
on 17 February 2021, acquitting Ramani of the charges. The court stated
that women cannot be punished for criminal defamation for raising their
voice against sexual abuse, as ‘the right of reputation cannot be protected at
the cost of the right of the life and dignity of woman [sic]’, which is
guaranteed in the Indian Constitution under the right to equality. The court
explained that, most of the time, victims of sexual abuse and harassment
only realise the extent of what happened to them years later, and that it is
common for there to be a long delay before victims feel comfortable talking
about what happened. The court emphasised: ‘The woman has a right to put
her grievance on any platform of her choice and even after decades.’ M.J.
Akbar has appealed the ruling and the Indian courts in 2022 have said that
they will hear his appeal.
The rights for women—to speak about their abuse on a platform or
medium of their choice, to come out as a survivor of abuse, even to name
their perpetrator—have been confirmed in other courts around the world.
Courts have dismissed libel claims on the basis that such legal action leads
to censorship, silencing and the denial of a woman’s free speech rights,
including her right to self-fulfilment, and her rights to equality and to be
free from violence.
The Colombian Constitutional Court has recently considered a series of
cases in which women have taken to social media to tweet about their
experiences and have named their alleged abusers. In one case, a woman
wrote on social media that a man she knew did not understand the meaning
of ‘no’, and accused him of harassing and abusing her. He sued her, arguing
she had violated his right to reputation and honour. She defended the case
on the basis of her right to free speech.
The court explained that while he had a right to reputation, this had to be
weighed against her free speech rights, and that social media publications
denouncing sexist conduct receive special free speech protection given that
they aim to defend other fundamental human rights, namely women’s
human rights. The court affirmed that a state’s due diligence obligations to
prevent gender-based violence must also be placed on the judicial scales. In
this case, her speech and broader societal goals to ensure women’s right to
live free from violence meant that his libel claim against her could not
succeed.
Through this and other decisions, the Colombian Constitutional Court
has explained that the suffering caused to his reputation is outweighed by
the suffering that would be caused by censoring her right to speak out about
being a victim of sexual violence. It has held that the victims of alleged
crimes have a right to freely and publicly denounce what had happened to
them.
These MeToo allegations published on social media in Latin America
have a name—escraches—and legal decisions have held that they are a
legitimate form of expression protected by the constitution. The
Constitutional Court has confirmed that women, journalists and other social
media users are not required to wait until there has been a judicial decision
on the allegations, since that would be a disproportionate restriction of free
speech, making these accusations invisible and contributing to gender
discrimination. In other words, calling yourself a victim or calling out your
perpetrator on social media in Colombia is a constitutionally protected
right.
However, the Constitutional Court warned that making such accusations
online should be done carefully and responsibly; it is important to ensure
that the accused’s presumption of innocence is protected. The court
explained that this could be achieved by making an allegation rather than
saying he is guilty of a criminal offence.
The court acknowledged that escraches are a response to the lack of
justice for women, given that most reports of sexual violence are ignored.
Women have been forced to seek an alternative way of bringing visibility to
the violations of their fundamental human rights. The court held that digital
escraches aren’t protected only by free speech principles, but also by the
right to protest. It is a public manifestation of protest against a justice
system that has failed to protect women from violence. Escraches have
constitutional protection especially where official reports have been made
but nothing has been done about them; in the context of such inaction, the
person turns to the online world as the location for a form of social protest
about the authorities’ failure to act.
Importantly, the Colombian courts have held that the right to live a life
free from violence and the right to free speech are heightened in certain
contexts. Around the world, there has been a raft of libel cases brought by
university professors or faculty members against a university or against
students who have named them in relation to accusations of ‘creepy’
behaviour or misconduct. Al Jazeera’s podcast Degrees of Abuse and work
by feminist academics such as Sara Ahmed have highlighted the problem of
sexual harassment in universities and the issues students face within
internal complaint procedures when they report such abuse by other
students or by faculty members. Meanwhile, faculty members who have
been named and accused of harassment or more serious offences, such as
rape, have argued that there has been a witch-hunt, and that their lives have
been ruined by spurious allegations.
In one case in Colombia, the court made it clear that accusations made in
an academic setting required the special protection of the right to live a life
free from violence, as an important part of the state’s obligations to protect
free speech and the right to education. In a groundbreaking decision, the
Constitutional Court considered a case in which a male professor was
named in a report circulated online that stated he had sexually harassed a
male student. The named professor decided to bring a case against the
faculty member who wrote and published the report, a feminist academic.
The court had to decide whether the information was protected by her right
to free speech or whether it was a violation of his right to honour and good
reputation.
The court held that the document, which detailed the testimonies of
students and the names of alleged harassers, was protected by free speech
because it had the objective of denouncing human rights violations and
tolerance of sexism in the university. The court recognised that ‘victims of
gender-based violence turn to escrache given the recognised weaknesses
within institutional mechanisms (of the state, universities and companies) to
tackle these facts, protect victims and respect their dignity, and to provide
solutions’. The court held that it would be unfair to hold individuals
speaking out on the internet to the same standard as newspapers, and that
social media had an important role in ‘making the private public’.
These cases understand that defamation proceedings operate as a means
of censorship. Censorship violates an individual’s rights to share and
provide information, but also the right of members of society more
generally to receive that information. It also fails to properly account for
why women and others are speaking out: to end violence against women in
our societies. Instead of starting with the question ‘Is the statement
defamatory and does it damage his reputation?’, the court asks itself a
different question: ‘What was the woman’s objective when she spoke out?’
In examining this crucial question, the court time and time again has found
that her statements are protected free speech, because talking about gender-
based violence is protected by her fundamental human rights.

Her right to tell her story

As we have seen, the starting point of international law in cases about her
right to speak is freedom of expression. The European Court of Human
Rights explains that this right ‘constitutes one of the essential foundations
of a democratic society and one of the basic conditions for its progress and
for each individual’s self fulfilment’.
Let’s pause there, as it’s an important point. Free speech isn’t only about
campaigning and media reporting—it is also about an individual’s right to
self-fulfilment. International and regional human rights courts have
explained that the right to free speech contains within it a hierarchy, with
greater protections for three kinds of speech: first, matters of politics and of
public interest; second, information relating to those holding public office
and candidates who are seeking to hold public office; and third, speech that
relates to an essential aspect of a person’s identity and their human dignity.
Free speech protects our expression of our own experiences—and our
right to report our truth and to tell the world about it. As the UK Supreme
Court explained in 2014 in holding that the pianist James Rhodes was
entitled to publish his own account of the abuse he experienced:

A person who has suffered in the way that the appellant has suffered
and has struggled to cope with the consequences of his suffering in the
way that he has struggled, has the right to tell the world about it. And
there is a corresponding public interest in others being able to listen to
his life story in all its searing detail.

As many of the women we interviewed for this book explained, winning a

libel lawsuit meant getting her voice back and being able to speak about her
own experiences. Otherwise, she is being silenced, prevented from speaking
about a part of herself and about something that she has gone through in her
life.
For many survivors of abuse, their experience of abuse becomes part of
their identity, and their ability to overcome it is also part of who they are.
Being able to talk about it can be an important part of their healing.
Survivors shouldn’t have to fear being sued and even bankrupted for
speaking about their abuse, and the law should protect those who speak out
and identity themselves as victims of gender-based violence.

Blaming women for the law’s failures

‘Women are being blamed for not using a system that has consistently failed
them,’ Sibongile Ndashe told us.
Sibongile is the director of the Initiative for Strategic Litigation in Africa
(ISLA), a pan-African feminist organisation that works with the law to
obtain justice for women there. Sibongile has identified a pattern in cases in
Africa, which we are also seeing around the world: women are being asked,
‘Why didn’t you go to the police?’ Too often, negative inferences are made
against women who speak out about gender-based violence simply because
they did not report their claim to the police when it occurred. Too often, her
decision not to report him to the police is being used to deny her right to
speak out about it. This is despite the fact that we know, as Sibongile points
out, that ‘the system is broken when it comes to violence against women’.
ISLA supports women facing gendered violence, but Sibongile told us
that their work had to shift when they became aware of an avalanche of
defamation and libel suits against women and survivor groups in Africa. It
wasn’t only defamation cases: women were being prosecuted for cyber-
bullying and facing all kinds of legal actions to silence their allegations of
rape or sexual violence. They created a targeted project, ‘Women Who
Speak’, in response to the incredible surge in these claims across the
African continent.
In one astounding judgment from South Africa, the judge used the facts
that the woman hadn’t reported the assault and no charges were laid to grant
an order that would prevent the woman from ever repeating her claims of
rape again. The District Court in Cape Town provided a man with a
Protection from Harassment Order (PHA), which prevented his ex-
girlfriend from ‘disclosing to anyone in any manner that the Respondent
had allegedly raped the Appellant’ and that he had committed emotional
abuse.
Before the court case, the judge explained, the couple had been in a
relationship for three years. They both worked in the fashion industry. The
woman victim described having suffered emotional and mental abuse; her
ex-boyfriend’s mother had even placed him in a clinic to deal with his anger
problems. She said that she was raped and she was advised by a social
worker not to report the rape to police. She decided to apply for a protection
order, but she withdrew the application at a later date and instead they made
a settlement agreement not to make contact with each other. Over time, she
told the court, she began to tell people in confidence about the rape. She
started talking about her experience in a private group of survivors of
gender-based violence. She said she needed to speak out as a way to heal,
and that she had never publicly named him as her rapist.
She was then alerted to the fact that private messages she sent to others in
the survivors’ group about the rape, including her ex-boyfriend’s identity,
had been made public—they were leaked and posted on Twitter—without
her consent or her permission. She was devastated. But the court held that
the case involved ‘cyber-bullying’, ‘gender-based violence’ and the MeToo
movement. The judge stated that while he empathised with her belief that
she was a victim of abuse, ‘she cannot continue to tell others that the
applicant had raped her’, given it ‘is a very serious allegation’. In the
judge’s opinion, even though the victim had only told members of a safe
space group, her case confirmed that ‘no one can be trusted with your
secrets’. The order the judge granted meant that she was completely
censored and unable to talk about her experiences at all, to anyone,
anywhere and at any time.
She appealed and challenged the silencing order, arguing that it
constituted a regression in the national fight against gender-based violence.
She also explained that she did not want to press criminal charges because
she didn’t have faith in the criminal justice system. He argued in response
that ‘rape culture in South Africa is endemic, but that [she] cannot make
him the poster child for rape’, since he claimed never to have raped anyone.
He told the court that her conduct illustrated malice.
In the appeal decision, the High Court of South Africa held that the
magistrate was wrong to draw a negative inference from the fact that she
had not gone through the criminal justice system. The court set out detailed
evidence about her fears, the context of the relationship, the circumstances
in which she said she was raped, and contemporaneous text messages in
which she accused him of raping her and asked him for an apology. The
court held her version of events to be more credible. It noted that he did not
deny the allegations in reply to her texts, and that he had started harassing
her directly and indirectly through family and friends and on social media.
The court described ‘damning evidence’ against him.
According to the High Court, ‘there was no need for her to lay a charge
against him and to have him prosecuted and convicted to be labelled as a
rapist, based on the evidence in this case’. As in the case of Tölle v. Croatia
heard by the European Court of Human Rights we discussed in Chapter 6,
the court explained that the absence of a conviction does not mean that a
person who committed an offence like theft ‘cannot be called a thief or, as
in this case, a rapist’. That is, there doesn’t need to be a criminal conviction
for you to call someone a rapist if the facts show that he is a rapist.
The court went on to explain that this is particularly important when
speaking about an accusation of rape, since ‘it is a notorious fact, which has
been judicially recognised, that most victims do not report rape to the
police. It does not render the true facts, that a victim was raped, untrue or
non-existent.’ The court said that survivors are often threatened and shamed
into silence, and that the characteristics of sexual violence often make it
seem impossible for victims to report what happened to their friends and
loved ones, never mind to state officials.
The court found that the woman in this case was a survivor of gender-
based violence, and that ‘she was trying to be heard, to find healing and to
protect others from suffering the same fate’. She had ‘the right to speak and
to express herself about the experiences she had endured’, and it was her
right to talk about her rape with other victims.
This was not a defamation action, though, and the High Court made it
clear that its finding was confined to the facts of this case. It was a case in
which a man brought his ex-girlfriend to court, arguing that she was
harassing him by calling him a rapist. She had never published or publicly
named him as her rapist. Instead, he brought her to court for telling other
victims of rape, in a private group, that he had raped her. This information
had become public without her consent. The court found that the magistrate,
in granting the protection order, ‘perpetuated the notion that victims of
gender-based violence should not speak out, should remain silent about
their experiences, and should be careful who they speak to’. Unsurprisingly,
the High Court set the protection order aside and found that she had not
harassed him.
This is not a unique case. In another case from South Africa, the judge
found against a woman who made allegations of sexual assault on Twitter
and awarded damages of 65,000 rand. The court emphasised the damage
caused to the accused man by allegations of this nature: ‘at a time of
increased awareness of gender-based violence and when the general public
is increasingly vigilant against it (rightfully so), the mere accusation of
being guilty of sexual assault and of being a sexual predator can ruin a
person’. The court also placed emphasis on the fact that she had not gone to
the police at the time:

To be accused of sexual assault and to be identified as a sexual

predator in such manner and circumstances can only be defamatory,
especially since at the time of publishing this tweet the respondent had
not pursued any criminal charges or any other steps against the
applicant for a period of six years. The manner and circumstances in
which the respondent elected to publish her tweets served to accuse
and convict the applicant in the realm of social media without
affording him an opportunity to defend himself or of challenging the
allegations against him.

The problem with this legal reasoning, which requires a conviction before a
woman can speak publicly, is that it fails to acknowledge the reality that the
criminal justice system is deeply flawed. There is no regard for the context
in which these laws operate: instead, it relies on an idealised version of how
allegations like this should be investigated and prosecuted. In England, as
we mentioned in the Introduction, only 1.6 per cent of rape allegations are
prosecuted. The figure is even lower in many other places—and given how
under-reported rape is, the actual figure is likely a fraction of this.
Given this reality, requiring criminal prosecution before a woman speaks
out severely undermines the ability of survivors to speak. It completely
ignores the fact that many survivors of abuse do not disclose their abuse
immediately, it can take time before they feel able to approach police, and
too often the police fail to act. Many choose not to go to the police at all—
to protect him, to protect their children, to protect herself or for a range of
other reasons, including because she has no trust in a broken criminal
justice system. It does not mean that what she says is not true or that she is
not permitted to speak about it. But in too many cases, the courts are
blaming women for the law’s failures: by finding she shouldn’t speak out
before he is convicted—or drawing negative inferences from her not going
to law enforcement. It is vital that the courts recognise her right to speak
even when she hasn’t gone to police or other state officials. Her right to
speak is her right.
The cases Sibongile has highlighted in her work are important because
they are taking place in magistrates’ courts. These are disputes at the lowest
levels of courts, which often go unreported and unnoticed. Such cases
demonstrate that this isn’t a problem that only actresses and celebrities face.
It has permeated the legal system, across cultures and social classes.
Around the world, there are women today who have been gagged by court
rulings, and we will never know about them because she cannot speak.

Fighting back through the courts

One of the most incredible things that we have found from speaking to
women from around the world is not only that they are highlighting lawfare
—the use of the law to silence them—but they are using the law to fight
back.
We have seen more and more women around the world taking
defamation claims against men who accuse them of lying about gender-
based violence—and winning. It is defamatory to be called a liar, and we
are seeing a growing trend of women countersuing men for defamation for
accusing them of lying for speaking their truth about their experience of
violence.
Often women have decided to take legal action in order to push back and
defend themselves when libel proceedings have been brought against them.
By countersuing, the women have made a strategic decision to take a stand,
often to make it easier for themselves and for other women to speak out, by
setting a precedent that might deter other people from suing women. These
examples show that the age-old technique of suing someone for making an
accusation can be countered.
In Chapter 2 we set out why Shiori Ito, the Japanese journalist, decided to
go public with her experiences and frustrations with the Japanese police and
the prosecutor over their decision not to charge the man she alleged had
raped her, Noriyuki Yamaguchi. Here we pick up her story again to explain
what happened after she decided to go public.
Shiori was deeply affected by the tragic suicide in 2020 of Terrace House
reality TV star Hana Kimura after she experienced online trolling. Around
the same time, Shiori was contacted by a young girl who said she was too
scared to talk about her own abuse, given all the abuse she was seeing
online against women who had spoken out, including against Shiori. This
spurred Shiori to action: she decided she had to do something to tackle the
online harassment and abuse she was receiving, not only for herself but
because of the impact it was having on other young women who were
witnessing it.
According to newspaper reports in Japan, Shiori filed a number of
defamation cases against people who tweeted that she was lying about her
sexual assault. She also sued an anonymous Twitter troll for defamation.
Through her legal action, she discovered that the troll was Osawa Shohei, a
former associate professor at the University of Tokyo, the most prestigious
university in Japan. Shiori won in court, and Osawa was ordered to pay
compensation and apologise.
This was an important symbolic and personal victory for Shiori, but it
also sent a clear message to those who were trolling survivors, and to the
survivors themselves: the people trolling them could and would be held to
account.
Shiori also sued a cartoonist for insinuating that she had slept with
Yamaguchi to help her career, which was also effectively calling her a liar.
She won that case in November 2021, and the people who retweeted the
cartoonist were also found to have libelled her.
She is now bringing a case against Mio Sugita, a Japanese politician and
member of the governing party. The female MP has courted controversy
previously for saying that ‘women lie’ about sexual assaults. The Japan
Times has reported that she apologised in the following terms: ‘I am sorry
for offending people by giving the impression only women lie when lying is
not restricted to a gender.’ So—sorry not sorry, it seems.
 The case might be one of the first of its kind anywhere in the world. In a
suit filed before the Tokyo District Court, Shiori is seeking damages from
Sugita for liking tweets by other people who had called her a liar, including
tweets claiming that she is pretending to be a rape victim, which are
defamatory. The idea behind the suit is that the liking of tweets criticising
Shiori and attacking her credibility is itself defamatory and a form of ‘group
bullying’. For Shiori, it’s important to hold prominent people who are in
positions of power to account when they participate in and even encourage
online attacks and campaigns against survivors.
Suing someone for liking tweets for defamation isn’t a crazy idea. Back
in 2018, Law Technology Today, an online platform, published an article
called ‘Think Before You Tweet’. It reported that, in Switzerland, a court
fined a defendant for liking a defamatory comment on Facebook: the Zurich
court had found that the ‘defendant clearly endorsed the unseemly content
and made it his own’.
The use of likes on social media platforms to intimidate and undermine
women in public spaces has become part of a wider debate in the United
Kingdom around the policing of sexual violence and protests against such
violence, and how likes on social media can be used as a form of
intimidation designed to silence women. In Chapter 2 we discussed the vigil
for Sarah Everard. During the vigil, Patsy Stevenson, one of the protesters,
was arrested. Images of Stevenson pinned down by a large number of male
police officers went viral and led to criticism of the police’s handling of the
protest (even though the independent police complaints commission later
exonerated them). Stevenson spoke out about her experience and the
problems of policing of women’s protests. After the controversy around her
arrest, the 28-year-old said that she received 50 likes on her Tinder account
from police officers and security guards. She told The Guardian that it ‘is
almost like an intimidation thing, saying, “Look we can see you,” and that,
to me is terrifying’.
Shiori’s decision to countersue Yamaguchi for defamation is part of a
global trend. [redacted text]
[redacted text]
But fighting back in defamation claims doesn’t always work, and can
have mixed results. For example, in Australia, Wendy Dent decided to sue
TV personality Don Burke after he claimed that she lied when she said that
he had asked her to audition naked for his TV program Burke’s Backyard,
and that she had made a false allegation as part of a ‘witch-hunt’ against
him. He had made the comments on the national TV program A Current
Affair in response to the many allegations of sexual misconduct that he
faced in the wake of MeToo. Dent said of her experience of Burke, ‘I went
from feeling like this talent with a future to feeling like I was just a pair of
boobs to him.’ He defended the case, arguing the defences of truth and
qualified privilege. But the case turned on the meaning (or imputations) of
what he said in the context of the entire broadcast. Burke himself argued
that what he said, considered in the context of the entire program, was not
defamatory because the presenter, Tracy Grimshaw, had made clear that she
was ‘utterly rejecting’ his assertion of a witch-hunt—and that, as a result, a
reasonable observer of the program would not have come away thinking
Dent was lying. The judge agreed, saying that the reasonable member of the
public would have understood the allegations against him were credible,
and his denials were not, but noted the ‘irony of the defendant obtaining
judgment in his favour on the basis that he has will be obvious’. When one
considers how easy it is to sue for defamation in Australia, and how many
men have successfully sued women and newspapers for defamation for
making allegations of sexual misconduct, the irony that a woman suing
would lose—and on this basis—is immense. Dent’s lawyer claimed it was a
‘pyrrhic victory’ for Burke: he had won, but the judge agreed Dent was the
one to be believed. Dent had been maligned by him as having lied and
being part of a witch-hunt, and yet when she sued, he won and she was left
with the costs of the case. Dent said she felt vindicated by the judge’s
comments about her credibility— she had defended her truth—which is
what ‘counts most’. But she added, ‘I have been through hell 100 times
because of Don Burke, and because of this ruling today, it was 101.’
Instead of suing for defamation for calling them a liar, some women have
taken a different route and instead countersued for the assault itself.
Consider, for example, the case Taylor Swift took against the man who sued
her for defamation and then claimed she lied about him groping her. In
2015, a radio DJ, David Mueller, attended Swift’s concert. Before the
concert she hosted a meet-and-greet for fans, where she met Mueller. When
they were taking a picture together, Swift said the DJ groped her by
reaching under her skirt and grabbing her bottom. She had him ejected by
security, and he received a lifetime ban from her shows; according to news
reports, he was also fired from his job over the incident. Mueller then sued
Swift for defamation, claiming she had lied and ruined his reputation,
asking for US$3 million in damages.
Swift responded by countersuing him for assault, claiming only US$1 in
damages. She sued him back not to win damages but to hold him to
account: by defending and winning the defamation case, she would prove
the truth of her allegations. In 2017, Mueller’s defamation claim was
thrown out of court, with the jury finding he had assaulted her.
Swift’s victory was lauded at the time for drawing attention to the under-
reporting of sexual assault and as a bigger symbolic victory to empower
women to speak out. Swift herself has said that she countersued to take a
stand and to help other women come forward. Many of the women we have
spoken to told us that they were motivated to take action in the hope that the
precedent they set might make it easier for the women coming after them.
For others, countersuing was simply the only option to fight back against a
suit and to obtain some form of justice.
Where the domestic courts fail, international and regional mechanisms—
including the United Nations and its special procedures—can be important
alternative sites where silence-breakers, campaigners and journalists can
fight back against silencing. These mechanisms have been extremely
important in upholding women’s right to free speech and in setting out how
gender-based violence affects free speech and women’s rights more
generally.
For example, in the case of Amal Fathy in Egypt, Jen and some Doughty
Street Chambers colleagues, working with the free speech organisation
Index on Censorship, obtained a ruling from the Working Group on
Arbitrary Detention that her imprisonment and prosecution for speaking out
on Facebook about sexual harassment was unlawful. While Amal has since
been convicted and sentenced to prison in Egypt, the United Nations’ ruling
in her favour—showing that Egypt’s silencing is unlawful because speaking
out about sexual harassment is protected speech under international law—
has assisted in demonstrating that Egypt’s actions are wrong and continues
to form part of her ongoing advocacy from Switzerland, where she now
lives in exile.
In another example, the UN Human Rights Committee issued a landmark
decision in 2018 about the case of Lydia Cacho, the Mexican journalist we
mentioned in Chapter 2; it recognised that the inhuman and degrading
treatment she suffered after being arrested for criminal defamation
amounted to gender-based violence and violated her rights to free speech.
Her UN case has been used by free speech organisations to advocate for
better protections for women journalists in Mexico and elsewhere.
We have acted in cases before international and regional human rights
courts to ensure that women can speak out and to challenge gendered online
attacks against women journalists aimed at silencing them in online spaces.
Human rights courts can provide important remedies, ensure state
accountability and provide recognition for human rights violations suffered
by women speaking out about their abuse and by the journalists trying to
report on it.
While women are fighting back with the law, their ability to do so
depends upon having the funds to do so—or finding lawyers willing to act
for free. The cases take a huge amount of time and resources, and the fact is
that women shouldn’t be put in the position of having to countersue: the
legal action they face shouldn’t have been brought in the first place. Are
there other solutions to shutting down abusive legal claims?

SLAPPing down women’s speech: Is anti-SLAPP legislation the

answer?

Defamation or privacy suits are not in themselves bad—but they can be

wielded in ways that entrench already significant power differentials. When
a powerful man is able to use the law as a weapon to silence criticism and
discussion of his abusive behaviour, we think it is worth questioning why
the law is permitted to operate in this way and to look critically at how that
law operates in practice.
There is increasing global concern that SLAPP suits—standing for
Strategic Litigation Against Public Participation—are stifling free speech.
The term ‘SLAPP suits’ was first coined in the 1980s by George Pring
and Penelope Canan, who explained in their book that a SLAPP suit is a
legal action taken against people or organisations who speak out on issues
of public interest. The point of the suit isn’t to win, but to silence, which is
why they’re known as litigation ‘against public participation’. The ACLU
has explained that defamation is one of the most common legal claims but
other kinds of legal actions can be taken too. There is now growing
understanding that these retaliatory lawsuits are a form of legal and judicial
harassment. The European Parliament has warned that the problem is
growing, and represents a substantial threat to free speech. A further
worrying trend is that these suits appear to be organised—being funded by
third parties to help pursue a common target. Newspapers are being coerced
into deleting factual reports and individuals are being forced into silence.
The concern within the European Union arose after the assassination in
2017 of the Maltese journalist Daphne Caruana Galizia. Daphne was an
investigative journalist in Malta reporting on corruption and human rights
abuse. For her work reporting on matters of immense public interest, she
was sued for defamation by Maltese government ministers, politicians and
businessmen. The SLAPP suits didn’t silence Daphne, but they did silence
others in the media space in Malta, making her the sole voice in the media
willing to hold power to account. The investigative journalist had 47
SLAPP suits pending against her at the time of her death, and her sons,
Paul, Matthew and Andrew, have described how the family—Jen’s clients
—and her estate are still having to fight these lawsuits. After her death, her
husband, Peter, had to appear in court twice a week to defend the cases
against her estate, extending the harassment she faced to her bereaved
family. The legal harassment she suffered, through the repeated use of
defamation suits against her, together with the online attacks, has been seen
as part of a broader strategy—a spectrum of attempts to silence Daphne and
her important public interest reporting—that ultimately led to her
assassination. But those who sought to silence her by killing her have
failed: journalists have committed to continuing her work, and her family
have built a foundation in her name to campaign for change. Thanks to this
work, and to Daphne, politicians began a campaign to enact anti-SLAPP
suit legislation in the European Union.
Organisations such as Greenpeace, Index on Censorship, the American
Bar Association and the free speech organisation Article 19 have all been
documenting the worrying rise in SLAPP suits against journalists and
human rights defenders. Organisations are advocating for anti-SLAPP
legislation, including early dismissal mechanisms, support for victims such
as legal aid, advice and representation, and compensation for loss of income
and stress. There also need to be deterrent measures. Laws like these have
already been developed in the United States, some provinces and states in
Canada, and Australia.
 The European Parliament has recommended that there should be
expedient, efficient and affordable legal procedures to dismiss SLAPP suits,
that penalties should be introduced for people abusing the legal system via
SLAPP suits, and that judges and lawyers should be trained to recognise
and stop these types of suits. In our view, if the ultimate goal of SLAPP
suits is to silence rather than to win, then they must be prevented for the
sake of free speech and media freedom. Typically, the push for this
legislation has come in the wake of David and Goliath litigation including a
mining company or other major transnational company suing environmental
activists. The idea of anti-SLAPP legislation is to ensure that wealth and
influence cannot be harnessed to force people into silence through the law.
But we also believe that anti-SLAPP legislation should specifically protect
speech about violence against women—as it is speech in the public interest
—and should stop men abusing their wealth and power to silence women
and journalists.
And we aren’t alone in that view.
Mandi Gray is a Canadian academic and survivor advocate who was the
complainant in a high-profile rape trial and made a film about her
experience to highlight how badly women are treated in the criminal justice
system. That work led to an academic interest in how women are being
sued for defamation for speaking out about their abuse. She worked on an
academic paper exploring the problem of defamation suits in Canada and
whether Canada’s new anti-SLAPP legislation, which would allow courts to
strike out certain types of legal claims, might be the answer to protect
women from abusive suits that censor their speech about abuse. She didn’t
know at the time she was working on her academic research that her own
case would become a test case on this very issue.
Mandi explained to us that she was being sued in British Columbia, along
with nineteen other women, for tweets in support of a woman known as
A.B. who made allegations of sexual harassment and rape against the author
Steven Galloway. Galloway is suing A.B. as well as the people who tweeted
in support of her. Galloway was at one time a tenured professor and chair of
the creative writing program at the University of British Columbia. But he
was fired after ‘serious allegations’ were made against him by A.B., a
student, and were subsequently made public. Galloway says that he had a
consensual relationship with A.B., while she described it as ‘an ongoing
abusive relationship’. The university hired a retired judge to investigate and
she found on a balance of probabilities that he did not commit sexual
assault. The case generated a media storm in Canada where authors such as
Margaret Atwood weighed in, expressing their opinions on whether the
university had treated Galloway fairly. But when we spoke to Mandi we
were interested in her academic expertise and her experience of going
through an anti-SLAPP motion and trial in British Columbia.
Twelve of the defendants in the case, including Mandi and A.B., brought
an application before the court to get the case against them thrown out. In
2019, during their ongoing defamation proceedings, British Columbia had
enacted a new piece of legislation, the Protection of Public Participation
Act. This meant that they had a chance to test out the legislation. The test to
be applied under the law—and the matters to be considered in Justitia’s
scales—is to weigh the public interest in allowing meritorious lawsuits to
proceed against the public interest in protecting expression on matters of
public interest. They argued that they had spoken out in the public interest
and that there was a greater public interest in the lawsuits against them
being dismissed.
The group being sued argued that ‘the reporting of gender-based violence
must be protected, and that victims must be able to come forward without
fear that they will be sued for defamation’. If Galloway’s defamation
lawsuit proceeded, they argued it would have a chilling effect on victims or
complainants of sexual violence in the future and that ‘sexual assault
survivors will be silenced even more’. On this basis, the group argued that
the public interest weighed in favour of dismissing Galloway’s claim
against them.
A.B.’s lawyer argued that the lawsuit sought ‘permanently to shutter A.B.
making it difficult or impossible for her to identify as a “survivor” in any
capacity, and to engage in advocacy and activism on issues of sexual
violence’. If Galloway’s reputational harm were permitted to trump A.B.’s
public interest in reporting and healing from sexualised violence, then the
question would arise: ‘Why report?’
Galloway’s lawyer argued that those submissions amounted ‘to the
absurd proposition that, in order to engage in important public discussions
and to protect victims of sexual violence and encourage reporting of such
violence, the Applicants must be free to publish defamatory statements—
that he is a rapist and guilty of criminal conduct—about him, without
consequence’.
 After considering the anti-SLAPP motion, the judge concluded that ‘it is
beyond argument that there is a very significant public interest in
encouraging reporting of sexual assault’. But she decided that allowing the
proceedings to go ahead was the only way to ensure justice, since it would
allow either A.B. or Galloway to have complete and public vindication.
Most of the applicants had their applications dismissed but a few of the
applicants, including Mandi, received a split decision: some aspects of their
case were struck out, but portions of the claims against them could proceed.
Those decisions are now under appeal—and the hearing has been listed for
March 2023—meaning that the proceedings will hang over the women’s
heads for even longer. Has the new anti-SLAPP law really achieved its
supposed goal?
This example shows that anti-SLAPP legislation may not be as simple a
solution as some have hoped. As Mandi explained to us, the anti-SLAPP
motion resulted in a three-week mini-trial before the defamation trial; the
multiple cross-examinations will all have to be repeated during the
defamation trial. This was not a quick fix solution, and has only prolonged
the proceedings, their cost, and the associated stress for everyone involved.
The judge’s decision, which runs into hundreds of pages, raises a separate
and important issue: how do you distinguish a SLAPP claim from a
meritorious claim? In other words, how do you tell the difference between
an unmeritorious claim that aims to silence, and a claim in which someone
is simply trying to protect their right to reputation? To dismiss a claim at a
preliminary stage could deny a person their legal rights. The judge in this
case held that if she dismissed the claims, ‘There would be no legal
consequences of any kind attached to publicly calling someone a rapist,
completely outside of any formal reporting, and no obligation ever to prove
the statement was true.’ The judge’s reasoning raises question marks, then,
about how such anti-SLAPP legislation in Canada—or anywhere else—can
be used by those who make accusations of sexual assault or rape on social
media to defend themselves. Mandi’s case is a test case to determine how
the courts will treat allegations of gender-based violence in anti-SLAPP
motions: and we will all be watching what happens in the appeal.

Online violence—the new frontier

We couldn’t write this book without addressing the new frontier of violence
against women: violence in the online space. This is another, increasingly
problematic, form of violence that is silencing women’s speech and
undermining women’s public participation, along with their ability to speak
out and share information about gender-based violence.
As the former UN Special Rapporteur on Violence Against Women
notes, ‘gender discrimination and patriarchal patterns that result in gender-
based violence offline are reproduced, and sometimes amplified and
redefined’ online and we are seeing ‘new forms of violence emerge,’ such
as image-based sexual abuse. She has highlighted how women—in
particular women journalists and women who have spoken out about their
own abuse—are facing online violence that reproduces the harmful
stereotypes we have discussed throughout this book and forces women to
‘retreat from the internet’, leading to ‘self-censorship’. It’s not just legal
actions against women for speaking out about the abuse online: the online
violence they are facing also silences them. Online abuse is ‘a direct attack
on women’s visibility and full participation in public life’, and its
consequence is ‘a society where women no longer feel safe either online or
offline, given the widespread impunity for perpetrators of gender-based
violence’.
In Japan, Shiori Ito had to hire a team to go through her social media and
report the horrendous abuse that she received after she went public with her
allegation of rape and her criticism of the police decision to stop
investigating her case. [redacted text]
The vitriol and abuse that Amber Heard faced online after making
allegations of domestic abuse against Johnny Depp and during the two
defamation trials that followed was unique and unprecedented. The trolling
of Amber, her friends and lawyers, and the witnesses who gave evidence for
her in court was relentless. But it has also sparked an important global
conversation about misogyny, online harm, the responsibility of platforms
like Twitter and TikTok, and the need to better protect women making
accusations of domestic and sexual violence. We hope that conversation
continues and that it is never allowed to happen again.
As commentator after commentator has explained, online abuse like this
has the effect of silencing accusers and of deterring other victims from
coming forward.
 In our experience with our clients, it doesn’t just silence women—it can
also have serious mental health consequences, and these are slowly being
recognised. For example, in 2021 the Australian media union recognised
that women journalists are suffering post-traumatic stress disorder as a
result of the online violence they face and is now describing it as an
occupational health and safety issue.
The problem we see in our practices, representing survivors who have
spoken out about their abuse and women journalists trying to do their job
who face online violence, is that domestic law offers few useful remedies in
a global information environment; online trolling happens across borders by
often anonymous accounts. Shiori Ito and other women are pioneering
interesting legal strategies against trolls, but it requires resources and the
ability to identify the troll, and where they live, to be able to take legal
action against them (whether in defamation, harassment or any other type of
claim). As Jen has found representing women journalists working for BBC
News Persian in London, how is a defamation claim or a police report
going to deal with trolling coming from a country like Iran? And how many
women have the resources to sue a troll on the other side of the world? The
major social media platforms where the abuse takes place, like Twitter,
Facebook, TikTok and Instagram, have their own internal complaint
systems, which are notoriously slow. By failing to take action, they enable
the abuse of women.
Various governments are looking to introduce law reform to address this
problem. For example, in the United Kingdom the Online Safety Bill 2022
has been introduced with the aim of creating a safer online space, including,
for example, creating a new offence of making a rape threat online. It has,
however, been criticised by the End Violence Against Women Coalition for
failing to explicitly reference online violence against women and failing to
place greater accountability on online platforms for facilitating abuse.
In the absence of adequate responses from either the platforms or from
governments tasked with law reform, feminists around the world have been
thinking about how we can ‘take back tech’ and ensure that women’s rights
to free speech are protected and respected. Through our work with Article
19, we have spoken with and interviewed women from around the world
who have set up incredible, practical initiatives to help other women protect
their digital rights through holistic safety mechanisms. For example,
American journalist and academic Dr Michelle Ferrier, founded
TrollBusters, which provides first-responder assistance to women facing
online abuse and other ‘troll behaviour’. TrollBusters helps journalists with
free lessons on digital hygiene, conducts training on digital security and
publishes a monthly magazine online, Toxic Avenger. It tailors its approach
specifically to freelancers and independent journalists, categories in which
women often find themselves. The organisation VitaActiva similarly
provides support and strategic solutions for women and LGBTQI+
journalists, activists and defenders of gender, land and labour rights, and
freedom of expression. The organisation provides a number of resources
online, which focus on self-care in resistance (autocuidados en resistencia)
and cyber-security against digital violence.
These organisations respond to the urgent problem of online abuse,
harassment and misogyny that women face for carrying out their work. For
example, Vita Activa runs a helpline for those experiencing stress, trauma,
crisis, burnout and gender-based violence: twelve trained responders who
work around the clock, responding to messages they receive via Signal or
Telegram. Feminist journalists and social communicators are creating
solidarity networks. The New York Times has held solidarity parties, where
journalists gather and teach each other how to protect themselves from
‘doxxing’, or the release of their private information online.
In countries from Chile to Paraguay, Bangladesh to Pakistan, online and
offline movements were launched during the Covid-19 pandemic to support
women who are speaking out about gender-based violence and women’s
human rights issues. Women who have spoken out on social media have
told us how, in the face of coordinated online attacks, feminists have
organised to create hashtags calling out abuse and providing emotional
support to women who are being targeted. Free speech organisations, the
United Nations and women’s rights organisations are increasingly
understanding how a feminist approach to women’s free speech rights can
help empower women to speak out and combat ‘the chilling’.

Protecting all of her rights—to end violence against women

Women’s right to speak about the experience of gender-based violence is

about more than just her free speech. For too long, courts have been
approaching the balance as one between her right to free speech and his
right to reputation—and have too often got it wrong. Her right to speak
about gender-based violence is also protected by the right to equality and
the right to be free from violence, and when these rights are considered in
Justitia’s weighing scales, courts come to better decisions. As human rights
lawyers, we want to see more lawyers make these arguments and more
courts start listening and recognising the public interest in enabling her right
to speak if we are ever going to end violence against women. And as
women face new challenges with developing technologies, we must
continue to innovate to find better solutions to protect her ability to speak,
using whatever media she chooses.
 Conclusion

FREE HER SPEECH

‘Different legal systems, same story.’

Shiori Ito’s simple words sum up what we have learned in writing this
book. It has become clear to us, in our research, that the legal strategies and
harmful stereotypes being deployed to discredit and silence women span
continents and cultures. The interviews we have conducted with women
across Africa, Asia, Europe and Latin America show that this is not just
happening in Japan, or in Australia, or in the United Kingdom, or in the
United States. It is happening everywhere.
To understand the law, we need to look beyond how it is written on paper
and see how it works in the real world.
On paper, there is nothing wrong with being able to defend your
reputation and your privacy. But in our opinion, which is drawn from what
we have seen in our own legal practices and our work on this book, it is
clear the law can be used to silence women. Women have told us how they
have been silenced after being sued, sometimes for years, before winning
their case, or been permanently silenced because they couldn’t afford to
defend their right to free speech.
The effect of this gendered censorship is all-pervasive: some women we
have spoken to even felt unable to talk about their rapist in private
conversations. ‘My alleged rapist,’ one woman said to us—before catching
herself in a moment of self-reflection about her subconscious choice of
language. After years of being sued for defamation and being forced to
carefully choose her words, she realised she had become conditioned to
referring to him in this way. ‘See, I can’t even speak my truth and call him
what he is—my rapist—here with you.’ She and many other women we
have spoken to are afraid, and so conditioned by the threat of litigation or
from the process of being sued, that they don’t feel safe to speak their truth
about rape or abuse, even behind closed doors. Many women report
developing mental and physical health issues as a result of the stress they
have experienced as a result of speaking out and the legal consequences that
they have faced. But we also know that women who remain silent out of
fear of facing those very consequences also suffer adverse physical and
mental consequences because they must endure their pain in shame and
isolation. We need to address this problem so it is easier for women to
speak. We also know that if women remain in silos of silence, repeat
perpetrators can get away with their crimes—and we, as a society, cannot
understand the problem and how to fix it.
Many women who have suffered gender-based violence and been through
the criminal justice system have told us they wish they had known more
about it before it happened to them: what you need to know before a rape
trial, you need to know before you are raped. But what we see in our work
is different. Many women don’t realise that after you’ve been raped or
assaulted, there are all kinds of laws that regulate what you can say, to
whom you can say it and when—and each decision you make has legal
risks and ramifications. But knowledge is the key to empowerment: we
want more women to understand this and to be aware of the issues they
could face so they can make decisions that are right for them and find
healing and justice. Understanding the problem is the first step towards
fixing it: we hope this book sparks more conversations about what we can
do to create change.
Privacy and defamation laws can operate to silence women for years
through private claims in our legal systems. These arguments are framed as
contests between his right to reputation and privacy, and her right to
freedom of speech. But what about her rights to self-determination, self-
fulfilment and a life free from violence? What about her right to equality?
In many courts, these rights are simply not being considered—and the result
seems to be a system that fails to respond to the reality of gender-based
violence and fails to respect her right to speak. That denies her right to
speak about her own experiences, her past, her history, her life. Are we
really getting the balance right? And if not, how can women get their voices
back?
Is it time for a different set of laws—or is there at least a way to ensure
the laws we already have provide gender justice? We believe the courts can
take a different approach to these kinds of cases—one that adequately
weighs all these rights and prevents the law from being used as a weapon to
silence women. An approach which recognises that when victims and
survivors speak out about abuse they do so in the public interest, and that
doing so is a powerful and important part of breaking the silence around
different forms of gendered violence. An approach which recognises that
there is immense public interest in ensuring that victims of rape and abuse
are able to talk about their experiences, in private and in public. And an
approach which recognises that speech provides a form of protection—a
warning system—and a different form of justice for women in a world
where our criminal justice systems too often fail. The public interest is in
breaking the ‘tyrannies of silence’, as Audre Lorde has described them. ‘My
silences have not protected me. Your silence will not protect you,’ she
warned. We must turn the silence into language and action. Lawyers need to
start making these arguments in our courts, and our judges need to listen.
The law and the courts must work to promote equality. We believe that we,
as lawyers, must ensure that our work promotes human rights and dignity,
equality and free speech for all.
The threat of legal action and its use against those who make accusations
of abuse and violence—or those who speak about their experiences—has to
be called out, and stopped. Otherwise, the endemic and pervasive gender-
based violence that terrorises women and girls, online and offline, will
continue unabated. Every woman you know can tell you a story of rape,
assault or harassment. Or of how they have been scared to walk home at
night because we all know the statistics and are reminded of them with each
new story we read about. Technology is facilitating digital forms of
violence against women: image-based abuse, online attacks, digital
kidnapping. All of this needs to be addressed and to change, and for it to
change, we have to be able to speak about it. The law is being used against
us instead of working for us. It is being used as a tool to maintain and re-
assert the old status quo when it comes to gender-based violence: silence. If
we don’t call this out, and talk about how the law is being used to SLAPP
down women’s speech, then women around the world will continue to be
silenced. The law cannot act as the handmaiden of the tyranny of silence, to
aid and abet violence against women. And the law should not be
weaponised by abusive men to allow them to continue their abuse. The law
should ensure that women and girls can speak out so that we can end
violence against women.
We also need to have conversations about how women who make
accusations are treated in civil proceedings about sexual and domestic
abuse. We believe that all courts, whether criminal or civil, should have the
same protections for women, wherever courts are ruling on matters
involving allegations of gender-based violence. Why is it that juries are
given directions about gender-based violence in criminal but not civil
claims? Why is it that we accept that a woman giving evidence about sexual
assault should be protected from live broadcast in criminal trials, but not in
civil trials?
In our view, costly defamation proceedings are not an appropriate venue
to resolve allegations of gender-based violence. No one can afford to defend
them. It is an action for the privileged and the rich. And even when you
win, your vindication can often be costly: if the court awards you legal
costs, it might not cover all the costs you incur in the case. And there is no
compensation for the stress you have suffered, or for the years you have
been silenced.
So how can we free her speech? How can we ensure that victims and
survivors are able to come forward without the fear of being sued and
silenced? How can we make sure that the law is balanced and fair, that it
protects the presumption of innocence, privacy and reputation while
upholding women’s rights to live a life free from violence? How can we
ensure women can afford to defend their free speech? What damages should
a survivor obtain for being sued and silenced? Shouldn’t women be
compensated for the years of silencing and the stress of proceedings that
they face?
These are just some of the questions that we believe we all need to start
asking—and our lawmakers need to start debating.
In this book we have told inspiring stories of women who have broken
the silence and faced a brutal backlash—a backlash which plays out on the
internet, in the media and through the courts. But we have also seen how
women are organising, campaigning, litigating and fighting back. We hope
their strategies and stories inspire more women to see that they aren’t alone
and that they have options. Legal change is possible. And fight back we
must.
Because if we don’t, how many more women will be silenced?
 ACKNOWLEDGEMENTS

Many people have made this book possible.

It was Baroness Helena Kennedy QC who first raised the idea of writing
this book. Back in 2018, Jen did the libel review of Helena’s latest book,
Eve Was Shamed, about how the British criminal justice system was failing
women. Jen sent Helena a long list of notes to consider for her book about
another area where the justice system was failing women: defamation.
‘Darling, that’s your area—use it for your book,’ Helena replied. We are so
grateful to Helena for her support and encouragement—for us and for so
many other women in the law—and for suggesting a book on this subject.
We decided to do this book together after our many rich discussions and
debates on media law, women’s rights and our respective clients and cases.
We think the book is better for it. The decision was inspired, in part, by our
respective academic mentors, Professor Hilary Charlesworth and Professor
Christine Chinkin, who together wrote the first feminist analysis of
international law, supervised our early academic work on opposite sides of
the globe and have inspired us ever since. Hilary’s recent appointment as a
judge on the International Court of Justice, the first Australian woman and
the fifth woman ever appointed is another sign that progress is being made,
if slowly, and will inspire so many more women.
To our brave clients and the many courageous women, survivors, silence-
breakers, journalists, lawyers and advocates who have generously given us
their time and told us their stories—this book would not have been possible
without you. Whether quoted, named or not—for legal reasons or otherwise
—your perspectives shaped our thinking and our words, and enabled us to
write this book to inform and empower so many others about your
struggles, your strategies and your triumphs. This book is for you—and
because of you. Thanks in particular to Zelda Perkins, Julie Macfarlane,
Shiori Ito, Amber Heard, Mandi Gray, Catalina Ruiz-Navarro, Matilde de
los Milagros Londoño, Pragna Patel, Nicola Stocker, Afsana Lachaux,
Chanel Contos and Dhanya Mani.
We are grateful to the brilliant Doughty Street Women—our colleagues
in chambers, led by the indefatigable Caoilfhionn Gallagher QC—who have
created a feminist, collective and safe space for support, inspiration and
discussion, which has enriched our lives, our careers and our thinking for
this book. We are proud to be members of Doughty Street Chambers,
together with so many colleagues so committed to justice and equality, and
we thank Edward Fitzgerald QC and Geoffrey Robertson QC, as heads of
chambers, for championing us and creating the space for us all to do the
work we do as barristers.
Our agents, Jane Novak and Jane Finigan, have provided constant
support, wisdom and encouragement. Our publishers, Kelly Fagan at Allen
& Unwin in Australia, and Claudia Connal and Evie Dunne at Octopus in
the United Kingdom, saw the potential in this book and backed it. Emily
Meller, Julian Welch and Angela Handley helped us make it the book that it
is.
Thanks to the brilliant women who conducted research and supported our
work— Phoebe Cook and Georgie Trevelyan-Clark—and to those who so
generously offered to read drafts and gave us useful feedback and further
inspiration and ideas: Susie Alegre, Harriet Johnson, Seumas Milne,
Connor Woodman. We would also like to thank the lawyers who gave us
their time and spoke to us: Galina Arapova, Gill Phillips, Pia Sarma,
Matthew Lewis, Rebekah Giles, Jonathan Price, Karuna Nundy, Ana
Bejarano Ricaurte, María Camila Correa Flórez, Mónica Roa, Sibongile
Ndashe, Mark Stephens, Tom Blackburn SC and Professor David Rolph.
Thank you to all of the women, journalists and women’s rights activists
who spoke to us, who are not mentioned here. And to Nicola Solomon at
the Society of Authors for her guidance and support.
Thanks to our partners, Gema and David, for their support and their
patience.
Finally, thank you to all the journalists upon whose work we have drawn
for this book. Journalism is invaluable—on this subject and all others. We
wrote this book, in part, because of our concern about the cost and difficulty
of doing journalism on this particular subject. We hope this book makes a
small contribution towards making your work easier in the future.
 CHAPTER NOTES

The main sources cited in the chapters are listed below. A full bibliography
is available here: www.allenandunwin.com/howmanymorewomen
Prologue
The description of Stocker v. Stocker has been taken from the High Court,
Court of Appeal and Supreme Court judgments. All these documents are
available online through the UK Supreme Court’s website or through other
free court service websites such as BAILII. The term ‘himpathy’ comes
from Kate Manne’s book Down Girl.
Stocker v. Stocker [2016] EWHC 474 (QB)
Stocker v. Stocker [2019] UKSC 17

Manne, K., Down Girl: The logic of misogyny, New York: Oxford University Press, 2017

Introduction
The introduction draws on the work of the New Yorker journalists who have
written about the MeToo movement and on the work of academics,
including Cynthia Enloe, who have been discussing the broader
implications of MeToo for women’s security.
Chandra, G., Enloe, C. & Erlingsdóttir, I., ‘No peace without security: Shoring the gains of the
#MeToo movement’, in S. Smith & K. Yoshida (eds), Feminist Conversations on Peace, Bristol:
Bristol University Press, 2022, pp. 76–91
Johnson, H., Enough: The violence against women and how to end it, London: HarperCollins
Publishers, 2022
Tolentino, J., ‘One year of #MeToo: What women’s speech is still not allowed to do’, The New
Yorker, 10 October 2018, <www.newyorker.com/news/our-columnists/one-year-of-metoo-what-
womens-speech-is-still-not-allowed-to-do>
Chapter 1: Silencing Justitia
For a historical overview of the treatment of women by the law, and of the
gendered nature of the legal system, we have drawn on the work of
academics and practitioners who have been influential in the United
Kingdom and in Australia. Susie Alegre, Harriet Johnson and Baroness
Helena Kennedy QC, barristers and part of Doughty Street Chambers, have
all written about human rights and the biases in the legal system in a
practical and accessible way. Susie Alegre currently sits as a Deputy High
Court Judge. Baroness Kennedy QC is a founding member of Doughty
Street Chambers and a member of the House of Lords. Harriet Johnson is
an author and practising criminal barrister. This chapter has also drawn on
the seminal book by Brenda Hoggett (now Baroness Hale, a retired UK
Supreme Court judge) and Sue Atkins, which has recently been reprinted in
a digital format as part of the IALS open publishing series. For those who
wish to study this topic more, we highly recommend reading the book. This
chapter refers to a number of legal cases, UN reports and newspaper
articles, all of which are also detailed on the website for further reference.
Lachaux v. Lachaux [2017] EWHC 385 (Fam)
Lachaux v. Independent Print Ltd and another [2019] UKSC 27

Alegre, S., Freedom to Think: The long struggle to liberate our minds, London: Atlantic Books, 2022
Atkins, S. & Hoggett, B., Women and the Law, 2nd edn, London: Institute of Advanced Legal
Studies, 2018
Barr, C. & Topping, A., ‘Fewer than one in 60 rape cases lead to charge in England and Wales’, The
Guardian, 23 May 2021, <www.theguardian.com/society/2021/may/23/fewer-than-one-in-60-ca
ses-lead-to-charge-in-england-and-wales>
Johnson, H., Enough: The violence against women and how to end it, London: HarperCollins
Publishers, 2022
Kennedy, H., Eve Was Framed: Women and British justice, London: Vintage Press, 1993
Kennedy, H., Eve Was Shamed: How British justice is failing women, London: Chatto & Windus,
2018
Macfarlane, J., Going Public: A survivor’s journey from grief to action, Toronto: Between the Lines,
2020
Morgan, J. & Graycar, R., The Hidden Gender of Law, 2nd edn, Sydney: Federation Press, 2002
Noel, A. & Oppenheimer, D. (eds), The Global #MeToo Movement: How social media propelled a
historic movement and the law responded, Washington: Full Court Press, 2020
Opeskin, B., ‘Dismantling the diversity deficit: Towards a more inclusive Australian judiciary’, in G.
Appleby & A. Lynch (eds), The Judge, the Judiciary and the Court: Individual, collegial and
institutional judicial dynamics in Australia, Cambridge: Cambridge University Press, 2020, pp.
83–115
Thornton, M., Dissonance and Distrust: Women in the legal profession, Melbourne & Auckland:
Oxford University Press, 1996
Thornton, M. & Luker, T., ‘The Sex Discrimination Act and Its rocky rite of passage’, in M. Thornton
(ed.), Sex Discrimination in Uncertain Times, Canberra: ANU Press, 2010, pp. 25–45
Wilson, A., In Black and White: A young barrister’s story of race and class in a broken justice
system, London: Endeavour, 2020
Chapter 2: How many women are silenced?
Contemporary newspaper resources and our own interviews form the
backbone of this chapter. In the bibliography on the website, you will find
the details of the cases, reports and academic work we cite in this chapter.
But we imagine our readers will be most interested in knowing more about
the women’s stories we tell in this chapter, and in their own words. Shiori
Ito, Mónica Roa López and Catalina Ruiz-Navarro have all written their
own books. We have also included reference to Louise Tickle’s article for
Tortoise, which tells the fascinating story of how the media agency
overturned an injunction.
Griffiths v. Tickle [2021] EWHC 3365 (Fam)
Griffiths v. Tickle [2021] EWCA Civ 1882
Rosanna Flamer-Caldera v. Sri Lanka, Communication no. 134/2018, UN Doc
CEDAW/C/81/D/134/2018, 21 February 2022, CEDAW

Ito, S. (translated by A.M. Powell), Black Box: The memoir that sparked Japan’s #MeToo movement,
New York: The Feminist Press, 2021
López, M.R., Elefantes en la Sala: Una mirada íntima, crítica y amorosa a la familia, Colombia:
Ariel, 2022
Media Defence, ‘Las Volcánicas: Sued for reporting on allegations of sexual abuse’, Media Defence,
29 July 2021, <www.mediadefence.org/news/las-volcanicas-sued-for-reporting-on-allegations-o
f-sexual-abuse/>
Ruiz-Navarro, C., Las mujeres que luchan se encuentran: Manual de feminismo pop latinamericano,
Barcelona: Grijalbo, 2019
Tickle, L., ‘Griffiths v. Griffiths’, Tortoise, 10 December 2021, <www.tortoisemedia.com/2021/12/1
0/griffiths-v-griffiths>
Chapter 3: What happens when women speak?
Between ourselves, we have been affectionately referring to this as ‘the
Australia chapter’, since it tells a contemporary story about what happens
when women in Australia speak—or try to speak—about their experiences
or allegations of sexual assault and violence. In Australia, many of the
women’s stories have been reported in newspapers, magazines and social
media. But outside of Australia, they might not be so well known. We relied
upon these media resources to tell some of the stories, but we also drew on
our interviews with Chanel Contos and Dhanya Mani. A number of the
women whose stories we describe are writing their own books ([redacted
text], Grace Tame and Chanel Contos), and we encourage you to read them
when they become available. Some key resources relate to the Australian
MeToo movement, and more recent movements. A range of material from
various legal proceedings discussed can be found on the Federal Court
website; it has been made available by the court due to the public interest in
these matters.
Dyer v. Chrysanthou: <www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/dyer
-v-chrysanthou>
Porter v. ABC: <www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/porter-v-ab
c>
R v. Lehrmann (No. 3) [2022] ACTSC 145
Rush v. Nationwide News: <www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/
rush-v-nationwide>
Crabb, A., ‘Christian Porter is correct—this is an extremely unsatisfactory state of affairs’, ABC
News, 4 March 2021, <www.abc.net.au/news/2021-03-05/christan-porter-rule-of-
law/13216806>
Dart Center for Journalism & Trauma, ‘Reporting on Sexual Violence’, 2011, <https://dartcenter.org/
content/reporting-on-sexual-violence>
Ethics Advisory Committee of the Canadian Association of Journalists, ‘Naming Sexual Assault
Complainants in the Media: Ethical considerations for journalists’, Canadian Association of
Journalists, 16 February 2016, <https://caj.ca/images/downloads/Ethics/caj_ethics_report_sex_a
ssault_revised_march_5.pdf>
Ferrier, T., ‘The March4Justice women who are raring to rally: “A time of reckoning for Australia”’,
The Guardian, 10 March 2021, <www.theguardian.com/australia-news/2021/mar/10/the-march4
justice-women-who-are-raring-to-rally-a-time-of-reckoning-for-australia>
[redacted text]
Hill, J., ‘The reckoning: How #MeToo is changing Australia’, Quarterly Essay 84, 2021
La Rosa, L., ‘Trickle-down white feminism doesn’t cut it’, Eureka Street, 27 June 2018, <www.eurek
astreet.com.au/article/trickle-down-white-feminism-doesn-t-cut-it>
Mani, D., ‘Why victims of sexual harassment in politics are still forced to suffer in silence’, Women’s
Agenda, 24 March 2019, <https://womensagenda.com.au/latest/why-victims-of-sexual-harassme
 nt-in-politics-are-still-forced-to-suffer-in-silence>
O’Connell, K., ‘The MeToo movement in Australia: Silenced by defamation and disbelief’, in Noel,
A. & Oppenheimer, D. (eds), The Global #MeToo Movement: How social media propelled a
historic movement and the law responded, Washington: Full Court Press, 2020, pp. 341–53
Chapter 4: Her guidebook to his playbook
This was the first chapter we sat down to write, based on our own
experiences of legalling news stories at various national newspapers. The
chapter was significantly enriched by our interviews with Pia Sarma and
Gill Phillips, two legal media powerhouses. Due to the legal risks
associated with this chapter, we decided to explain the different legal steps
in reference to Jeffrey Epstein. The chapter is therefore indebted to the
investigative work of journalists who contributed to the uncovering of
Epstein’s abuse and those who have written since about the media’s failure
—because of legal risks—to publish women’s stories about his abuse
earlier.
Chotiner, I., ‘Why didn’t Vanity Fair break the Jeffrey Epstein story?’, The New Yorker, 8 February
2022, <www.newyorker.com/news/annals-of-communications/why-didnt-vanity-fair-break-the-j
effrey-epstein-story>
Folkenflik, D., ‘A dead cat, a lawyer’s call and a 5-figure donation: How media fell short on
Epstein’, All Things Considered, NPR, 22 August 2019, <www.npr.org/2019/08/22/753390385/
a-dead-cat-a-lawyers-call-and-a-5-figure-donation-how-media-fell-short-on-epstei>
Kale, S., ‘“Everyone failed these young, Black girls”: Journalist Jim DeRogatis on his decades-long
battle to expose R Kelly’, The Guardian, 4 May 2022, <www.theguardian.com/us-news/2022/m
ay/04/everyone-failed-these-young-black-girls-journalist-jim-derogatis-on-his-decades-long-batt
le-to-expose-r-kelly>
Pogrund, G., ‘Charlie Elphicke: The predator MP and his protection racket’, The Sunday Times, 26
March 2022, <www.thetimes.co.uk/article/charlie-elphicke-the-predator-mp-and-his-protection-
racket-3kb30pl6w>
Chapter 5: Contracted to silence
This chapter largely draws on Jen’s perspective, and on our conversations
with Zelda Perkins, an incredible campaigner. It has also benefited from
conversations with legal experts in the United Kingdom and Australia. We
drew upon the investigative reporting by the journalists in the United States
and the United Kingdom who broke the Harvey Weinstein story, as well as
an analysis of the leading legal judgment on this issue in the United
Kingdom, Jen’s submissions to the Women and Equalities Committee and
the committee’s subsequent reports.
ABC and ors v. Telegraph Media Group Ltd [2018] EWHC 2177 (QB)
ABC and ors v. Telegraph Media Group Ltd [2018] EWCA Civ 2329

Farrow, R., ‘Harvey Weinstein’s secret settlements’, The New Yorker, 21 November 2017, <www.ne
wyorker.com/news/news-desk/harvey-weinsteins-secret-settlements>
Garrahan, M., ‘Harvey Weinstein: How lawyers kept a lid on sexual harassment claims’, Financial
Times, 24 October 2017, <www.ft.com/content/1dc8a8ae-b7e0-11e7-8c12-5661783e5589>
Gordon, J.S., ‘Silence for Sale’, University of Sydney Law School Legal Studies Research Paper
Series, no. 20/34, vol. 17, June 2020, pp. 1109, 1111
Marriage, M., ‘Men only: Inside the charity fundraiser where hostesses are put on show’, Financial
Times, 24 January 2018, <www.ft.com/content/075d679e-0033-11e8-9650-9c0ad2d7c5b5>
Newell, C., ‘The British #MeToo scandal which cannot be revealed’, The Telegraph, 23 October
2018, <www.telegraph.co.uk/news/2018/10/23/british-metoo-scandal-cannot-revealed>
Proops, A., McColgan, A., Connor, N. & Robinson, J., ‘Submission to the Women and Equalities
Committee on Sexual Harassment and the Abuse of Non-Disclosure Agreements (NDAs)’,
2019, <http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/wo
men-and-equalities-committee/sexualharassment-in-the-workplace/written/80878.html>
Chapter 6: Defamation on trial
This chapter provides a general overview of libel and defamation law in the
United Kingdom and Australia. We were very pleased to have been able to
cite the musical Hamilton! alongside academic work, case law and the work
of journalists in this chapter. We also draw upon our own work in this area
in the United Kingdom and the perspective we have gained as practitioners
in the field. This is a book for a broad audience, so the chapter aims to give
readers a general overview of libel. Those who wish to read further on this
topic might want to delve into Gatley on Libel and Slander for UK
defamation law and the two defamation texts on Australian law we cite
below. The details of other sources that enriched our thinking for this
chapter are also provided.
Craig v. MacGregor [2019] NZHC 2247 and [2021] NZCA 156
Economou v. De Freitas [2018] EWCA Civ 2591
Lachaux v. Independent Print Ltd [2015] EWHC 620; [2019] 3 WLR 18; [2021] EWHC 1797 (QB)
Lee v. Brown [2022] EWHC 1699 (QB)
Porter v. ABC: <www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/porter-v-ab
c>
Rush v. Nationwide News Pty Ltd (No. 7) [2019] FCA 496 (see also <www.fedcourt.gov.au/services/a
ccess-to-files-and-transcripts/online-files/rush-v-nationwide>)
Stocker v. Stocker [2016] EWHC 474 (QB)
Stocker v. Stocker [2019] UKSC 17
Tölle v. Croatia, Application no. 41987/13, 10 December 2020, ECtHR

Edmondson, A., In Sullivan’s Shadow: The use and abuse of libel law during the long civil rights
struggle, Amherst: University of Massachusetts Press, 2019
George, P., Defamation Law in Australia, 3rd ed., Chatswood: LexisNexis Australia, 2017
Parkes, R. et al. (eds), Gatley on Libel and Slander, 13th ed., London: Sweet and Maxwell, 2022
Pring, G.W. & Canan, P., SLAPPS: Getting sued for speaking out, Philadelphia: Temple University
Press, 1996
Rolph, D., Defamation Law, Sydney: Thompson Reuters, 2015
Chapter 7: Her truth on trial, twice
This chapter is about the two high-profile defamation trials in the United
Kingdom and the United States involving Amber Heard’s allegations of
domestic and sexual abuse against her ex-husband, Johnny Depp. It is
written from Jen’s perspective based on her experience representing Amber
in the UK proceedings and on the publicly available material and
commentary on the US trial (Jen did not act for Amber in the United
States). The key resources we used to write this chapter were: the reported
UK judgment in the case Depp brought against The Sun, the subsequent
appeal judgment, the trial transcripts and court documents (for the UK trial)
and court files relating to the US case that Depp brought against Amber. All
information contained in this chapter is already available on the public
record or from Jen’s personal perspective. In respect of the UK trial,
journalist Nick Wallis has compiled most of the relevant court documents
on his website, including submissions and witness statements. The US trial
materials are available on the website of Fairfax County, Virginia.
John Christopher Depp II v. News Group Newspapers Ltd and Dan Wootton [2020] EWHC 2911
(QB)
John Christopher Depp II v. News Group Newspapers Ltd and Dan Wootton [2021] EWCA Civ 423

Fairfax County’s website: <www.fairfaxcounty.gov/circuit/high-profile-cases>

Heard, A., ‘Opinion: Amber Heard: I spoke up against sexual violence—and faced our culture’s
wrath. That has to change’, The Washington Post, 18 December 2018, <www.washingtonpost.co
m/opinions/ive-seen-how-institutions-protect-men-accused-of-abuse-heres-what-we-can-do/201
8/12/18/71fd876a-02ed-11e9-b5df-5d3874f1ac36_story.html>
Nick Wallis’s website: <www.nickwallis.com/depp-trial>
Chapter 8: What about her rights?
The vast majority of the sources we drew upon for this chapter are legal
decisions from different jurisdictions around the world. A full list of the
cases is available on the website. We are indebted to lawyers and colleagues
who sent us cases, some of which are difficult to obtain online. These cases
are likely to be the tip of the iceberg, especially since many legal
proceedings which take place at the level of the magistrates’ courts do not
result in reported judgments. Some of the cases from the African continent
are particularly difficult to find online. For those seeking further
information about those cases, the organisation ISLA published a report
after we finished writing our book. It is called ‘Defending Women Who
Speak: Proposing legal defences in cases against sexual violence victims by
their attackers’, and is available online in the ISLA Insights series. In
addition, the Constitutional Court of Colombia handed down a judgment in
a case in which we provided support to the Special Rapporteur on Freedom
of Expression. We have included below our amicus brief in that case. The
judgment is only available in Spanish.
Anees Petersen v. Daniell Segerman, Case no. H1028/19, 26 November 2020
Anees Petersen v. Daniell Segerman, Case no. A177-21, 24 March 2022
Economou v. De Freitas [2018] EWCA Civ 2591
Lachaux v. Independent Print Ltd and another [2019] UKSC 27
Malizole Daniel Mdlekeza v. Megan Gallie, in the High Court of South Africa, Case no. 15490-2020,
20 April 2021
Tölle v. Croatia, Application no. 41987/13, 10 December 2020, ECtHR
T-061/22, Acción de tutela promovida por Fabian Sanabria Sánchez contra Mónica Godoy Ferro,
judgment of 23 February 2022, Constitutional Court of Colombia
T-275/21, judgment of 18 August 2021, Constitutional Court of Colombia
T-361/19, judgment of 12 August 2019, Constitutional Court of Colombia
Expert Opinion, In the Matter of the Constitutional Challenge to Article 22.4.2 of Law 559 of 2000
of the Colombian Criminal Code, <www.ohchr.org/sites/default/files/2022-02/Colombia-Constit
utional-Court.pdf>

Gray, M., Liar Lawsuits: Defamation and sexual violence in Canada, Vancouver: UBC Press
(forthcoming)
Srinivasan, A., The Right to Sex, London: Bloomsbury, 2021

Conclusion
Rather than list the sources we relied upon, which you can find online, here
we point to a number of campaigns and websites that readers can access for
more information on these issues and what is being done to free her speech.
https://cantbuymysilence.com
https://southallblacksisters.org.uk
www.teachusconsent.com
https://volcanicas.com
 INDEX

Abbott, Diane 37
abortion 18, 44, 45, 49, 77–81
activists, silencing 76–82, 277
adultery 27, 61–2
Africa 252, 359–64
Ahmed, Sara 356
Ailes, Roger 195
Akbar, M.J. 252, 352–3
Alegre, Susie 13–14
anonymity of victim 67–75, 147, 151
Arapova, Galina 88–90
Archer, Jeffrey 278–9
Atkins, Susan 16, 17, 27, 29, 39, 41

Bacik, Ivana 77
Baird, Vera 2
#BalanceTonPorc 251
Banks, Arron 248
Banks, Julia 259–60
Bardem, Javier 311
Barkin, Ellen 322, 323
Barr, William 164
Bazzi, Shane 251
Bedoya, Jineth 83
Bejarano, Ana 87
Belousova, Anna 352
Bester, Nicolaas 70, 71
Bettany, Paul 314, 318–19
Bieber, Justin 251
Birmingham, Simon 128
Bishop, Julie 128
Black Cube 175–7, 215
Blackburn, Tom 269
Blair, Cherie 48
blaming women 2, 5, 27, 30, 31, 70, 189, 359–64
Bligh, Deborah xi
Bloomberg, Michael 195
Boies, David 165, 175, 197, 198, 215
Bredehoft, Elaine 334
Broadfoot, Fiona 93
Brown, Julie 150, 163–4
Brown, Patrick 251
Burke, Don 101, 105, 368–9
Burke, Tarana 2, 104

Cacho, Lydia 81, 371

Cadwalladr, Carole 248, 249
campaigners for women’s rights 76–82
Campbell, Naomi 167
Can’t Buy My Silence campaign 241–3
Carey, Gemma 293
Carter, Graydon 155, 156, 178
Castor, Bruce 198
censorship 4, 61, 98, 357, 384
Centre for Women’s Justice xiii, 30, 64, 93, 349
Challen, Sally 93
Changing Our Headline 109–10
Chew, Ben 330
children
defamation cases and 185
 educating about consent 2, 130–1
NDAs in sexual abuse cases 191, 196
not reporting sexual abuse 33
persistent sexual abuse 71–2
protection of identity 72–5
victim fearing loss of 65, 238, 239
victim losing custody of 34, 290
victim prosecuted for kidnapping 290, 341
China 59–60
Chiu, Rowena 210–11, 214, 217, 233
Clarke, Jessica 19, 22–4
Clooney, Amal 49–50
Coghlan, Monica 278
Colombia 82–8, 255–6, 354–6
Commission on the Status of Women (CSW) 15
Connolly, John 178
Connor, Natalie 224
Constand, Andrea 198–201, 203
contempt law 66–75, 147, 345, 346
Contos, Chanel 41, 128–33, 329
corroboration 23, 153, 155, 159, 280–2, 319, 330
Cosby, Bill 25–6, 156, 189, 193, 197, 198–201
countersuing offender 96, 185, 267, 327, 331, 365–72
Cowan, Edith 37
Crabb, Annabel 123
Craig, Colin 251, 267
Creasy, Stella 38
credibility of victim, attacking 31, 121, 154, 157, 174
defamation actions 270, 274, 283, 297–340
criminal justice system 5
failure of 2, 9, 359–64
punishment of victim 61–3, 93
criminal laws that silence 61–6
criminalisation of sexual relations 61–3
Croswell, Harry 246
crowd-funding 266, 292–4
DARVO tactic 5, 248, 321
De Freitas, David 277, 288–90
De Freitas, Eleanor 277, 288–9
defamation actions 181–7, 245–96
abuse of process 237
ACLU Guide 251, 372
activists, against 76, 79–82, 277–8
Africa 252, 359–64
allegations published without consent 269–70
alleged offender, by xii–xvi, 4, 6, 35, 51, 94, 96, 100–5, 143–9, 181–7,
247–340, 352–3
Australia 100–5, 250–1, 256, 258, 268–70, 279, 282–6
burden of proof 279, 308
Canada 251, 263, 277
China 60
claim not reported for fear of 147–9
Colombia 82–8, 255–6, 354–6
cost of 181–2, 185, 266, 292–5, 333
countersuing offender 96, 185, 267, 327, 331, 365–9
criminal 79–85, 185–6, 249, 255, 267, 279, 352–3, 364
Croatia 286–7, 361
cross-examination by defendant 267
crowd-funding 266, 292–4
damage to reputation 258
defences 256–7
defending reputation of men 246–7
Depp/Heard case 247, 251, 265, 267, 282, 296–340
early law 246–7
European Court of Human Rights 287, 295, 361
evidence 278–86, 319, 330
exclusion of victim from trial 314
forum shopping 265–6, 307, 327
France 251
free speech and 76, 246–7, 255–7, 264, 278, 279, 295
friends and family, against 277–8, 288–90
human rights law 286–92
impact on women 247–50, 271–7
India 252, 264–5, 352–3
injunction after 185, 265, 267, 291
Japan 94, 285, 365–7
legal aid not available 292
libel 257
meaning of words 260–3
media, against 84–9, 100–5, 124, 127, 143–4, 147, 181–7, 263–6, 268–
77, 297–340
men deciding meaning of words 260–3
men deciding who/where to sue 263–78
men defending reputation 245, 247, 250, 254–7, 278, 287
MeToo and 100–5, 250–3, 262, 301, 317
NDAs and 235–9
New Zealand 251, 267
preventing reporting of allegation 263–4
pro bono legal support 182
proving allegations 278–86
public interest defence 256, 286–92
right to reputation 254–7
right to speak out 286–92
‘serious harm’ to reputation test 258
settlement of claims 183, 271
silencing women and journalists 264, 384
slander 257
social media xi–xii, 257, 258, 264, 360–7
standard of proof 279
third parties, against 277–8
threat of 89, 160–5
truth defence 255, 256, 279
truth of claim 278–86
UAE 34–5, 290–1
UK 252, 256, 258, 260, 261, 265, 267, 279, 286–91, 296, 308, 315–26
US 251–4, 279–80, 282, 296, 307, 326–40
US civil rights movement 253–4
victim, against xii–xvi, 4, 6, 35, 51, 94, 96, 100–5, 147–9, 181–7, 247–
50, 266–8, 352
victimisation of woman 279
 what you can be sued for 257–60
withdrawal of claim 274–6
Dent, Wendy 368–9
Depp, Johnny 22, 51, 193, 235–8, 247, 251, 265, 267, 282, 296–340, 379
DeRogatis, Jim 158
Dershowitz, Alan 163, 178
Deuters, Stephen 334
Dhu, Ms 66
digital kidnap 80, 386
discrimination
breach of human rights 61–3
judiciary, by 39–41, 43–53, 279
pregnancy 39, 196
racial 134–6, 242, 243
sex discrimination legislation 37, 38
women in law, against 43–53
divorce laws 26–8
domestic violence 22, 26–30
allegations in family court 73, 184
coercive control 41, 93
divorce for 26–8
Domestic Abuse Act 2021 (UK) 64, 262, 267
failure to report 28–9, 65
Indigenous women 65–6
low level of prosecution and conviction 149
myths and stereotypes 29, 34, 319
non-fatal strangulation 261–2
police failing to act against 29, 30
provocation defence 27–8, 317
standard of proof 28
Donegan, Moira 338, 339
Doughty Street Chambers 9, 46, 49, 312, 370
Drummond, Nicholas 40
due diligence principle 351
duels 246–7, 250
Dulany, Caitlin 307
Dutton, Peter 121, 250
Economou, Alexander 288–9
Edmondson, Aimee 253
Eilish, Billie 195–6
Elphicke, Charlie 143–4, 264
Epstein, Jeffrey 146, 150–7, 162–5, 178, 189, 193, 197–8, 347
Evans, Ada 47, 50, 51
Evatt, Elizabeth 44–5
Everard, Sarah 76, 367

failure to report abuse 2, 25–6, 359

child sexual abuse 33
contempt law 66–75
criminal laws, effect of 61–6
denial of rights where 359
domestic violence 26–30
Indigenous women 65–6
LGBTQI+ community 62–3
migrant women 63–5
reasons for 25, 28–9, 61–6, 149
false accusations 343
men alleging see defamation actions
myth 34, 281, 343
Farmer, Maria and Annie 150, 153, 155, 162, 165
Farrow, Ronan 164, 174, 175, 177, 179, 215
Fathy, Amal 370–1
Ferrier, Michelle 381
First Nations women 4, 43, 65–6, 135
Flamer-Caldera, Rosanna 63
FLIP 86–7
Foley, Luke 102, 105
Folkenflik, David 151, 157
freedom of speech xii, xvi, 4, 12–14, 76, 87–8, 98, 342, 347–58
attacks on women’s right 348
defamation and 76, 246–7, 255–7, 264, 278, 279, 295
international mechanisms to uphold 370–1
NDAs and 172, 226, 230
political accountability, about 271
 protection of reputation as limit 255
right to speak out 146, 286–92, 347–58, 382
US civil rights movement 253–4
Freeman, Hadley 307
French MeToo 251
Freyd, Jennifer 5, 248
Friedman, Sarah 39
Frydenberg, Josh 121
Funnell, Nina 55, 66, 71, 293, 294

Galizia, Daphne Caruana 373

Gallagher, Caoilfhionn 48–9, 74, 349
Galloway, Steven 251, 375–7
gendered censorship 4, 61, 98, 384
Giggs, Ryan 168
Giles, Rebekah 52, 239, 240, 273, 293
Gillard, Julia 37
Gilmore, Jane 54
Ginsburg, Ruth Bader 42, 44, 57
Giuffre, Virginia 150, 163–4, 175, 178, 197
Gordon, Jeffrey 223
Gouges, Olympe de 14
Grady, Constance 339
Gray, Mandi 374–5
Green, Philip 172, 219, 226, 229–32, 235
Griffiths, Andrew 72–5, 155
Griffiths, Kate 72–5
Grover, Vrinda 252
Guerra, Ciro 82, 84–7
Gupta, Subodh 264, 265
Gutierrez, Ambra 214–15

Hain, Peter 172, 231

Hale, Brenda 16, 17, 27, 29, 41–2
Hamilton, Alexander 246–7, 255
Heard, Amber 22, 51–2, 185, 193, 235–8, 247, 251, 265, 267, 282, 296–
340, 342, 379
Hendry, Janine 121
Herman, Judith Lewis 31
Heydon, Dyson 56, 106–9, 126
Hill, Jess 104, 105
Hoggett, Brenda see Hale, Brenda
Hollander, Nancy 46, 47, 48
Huang Xuequin 60
human rights 12–15
freedom of speech see freedom of speech
violations 3, 17, 61, 81, 352
women’s rights see women’s rights

incel ideology 344

India 19, 20, 53, 252, 264–5, 352
Indigenous women 4, 43, 65–6, 135
Initiative for Strategic Litigation in Africa (ISLA) 359
injunctions
against publication 6, 153, 165–73, 193
defamation case, after 185, 265, 267, 291
Ito, Shiori 94–7, 174, 285, 365–7, 379, 380, 383

‘Jane’s’ story 143–4, 151

Japan 24, 91–7, 186, 285, 365
Jenkins, Kate 125
Johnson, Harriet 9, 32, 53, 267, 280
journalists see media
Joyce, Barnaby 102–3, 105
judges 22, 32–5, 39–41
judicial rape 31

Kantor, Jodi 56, 215

Kate’s story 111–16, 119–24, 271–4
Katyal, Manik 252, 265
Kelly, R 158, 197, 347
Kennedy, Helena 9, 21, 29, 46, 47, 48, 389
Khan, Irene 4, 352
Khuja case 344–6
Kiefel, Susan 106
King, Lisa 304
King, Martin Luther Jr 254

La Rosa, Laura 104

Lachaux, Afsana 34, 290–1, 349
Laming, Andrew 293
Langton, Marcia 65
Las Tesis 82
Lauer, Matt 195
law used to fight back 364–72
law used to silence women 12–15, 82, 187
laws judged/applied by men 38–43
laws made by women 35–8
legal threat letters 160–5
Leszkiewicz, Anna 311
#LetHerSpeak campaign 66, 70–5, 116, 293
LGBTQI+ community 62–3, 343, 381
limitation rules for rape 25–6
Londoño, Matilde de los Milagros 56, 82–7, 179
Lorde, Audre 91, 384
Lukyanova, Yulia 88–90
Lykourgou, Karlia 49

McClymont, Kate 55
McColgan, Aileen 224
Macfarlane, Julie 30–1, 162, 233, 241
McGowan, Rose 176–7, 215
McGreal, Aoife 122
MacGregor, Rachel 267
MacKinnon, Catharine 21
McLachlan, Craig 101, 102, 103, 105, 251, 275–7, 279
McQuire, Amy 135
Maddow, Rachel 243
Magna Carta 13
Mahdawi, Arwa 338
Maiden, Samantha 55
male-centred law 11–16, 38–43
male-dominated media 53–7
Maley, Jacqueline 55
Mani, Dhanya 105–14, 121, 122, 125, 126, 132–6, 274
Manne, Kate 179, 282
Mansell, Mark 227
Manson, Marilyn 251, 336
March4Justice protests 121, 123, 124–5
marital rape 17–19, 22, 33, 34
Maroney, McKayla 194
Marriage, Madison 218–21
Marriott, Catherine 102–3
Maxwell, Ghislaine 146, 150, 155, 164
May, Theresa 218, 220, 221
Mayorga, Kathryn 201–3
media 53–7, 82–91, 146–87
defamation actions see defamation actions
identification of victims 66–75
language used in reporting claims 158–9
minimising male violence 54
naming accused 344–5
offender undermining journalist 178–80
police advising against speaking to 147
publishing allegations without consent 269–70
reluctance to report claims 149
silencing of journalists 56, 82–91
speaking out to 146–87
victim self-identifying 69–75
Melville-Brown, Amber 164
men’s rights 343–7
MeToo movement xiii, 1–3, 7, 30, 91, 99–101, 149, 169, 186, 301, 306, 330
Africa 252, 360
Australia 100–15, 128, 250, 268–70
backlash 100–5, 339, 344
Britain 7, 172, 229
China 60
defamation and 100–5, 250–3, 262, 301, 317
 France 251
India 53, 252, 264, 352
Japan 94
Latin America 355
media response 53, 100–5
men’s rights and 343
NDAs and 189, 191, 229, 239, 243, 244
right to reply 159
United States 100, 104, 251
migrant women 63–5
Miller, Chanel 40
Miller, Maria 38, 242
Milligan, Louise 55, 120, 123, 272
misogyny 37, 88, 298, 300, 325, 329, 330, 337–9, 344, 379, 381
Mochama, Tony 252
Morgan, Piers 312, 313
Morrison, Scott 110, 115, 119, 120, 123, 124, 127, 128, 135
apology to victims 132–3
Mosley, Max 166–7, 172
Msimang, Sisonke 134–5
Mueller, David 369–70
Mullaley, Tamica 66
Murray, Pauli 44
Mwangi, Wambui 252
myths and stereotypes 5, 22–4, 29–35, 58, 331
credibility of victim 31, 121
delay in reporting 32, 33
domestic violence, about 29, 34, 319
false accusations 34, 281, 343
guides to prevent perpetuation 32–5
juries influenced by 31, 32, 331
‘participation’ by victim 32
provocation by woman 29
rape, about 22–4, 31–4
rape perpetrated by strangers 33

Nassar, Larry 194

Ndashe, Sibongile 359, 364
non-disclosure agreements (NDAs) 7, 152–3, 166, 172, 177, 182, 189–244
banning in sexual misconduct cases 242–3
bill to restrict misuse (UK) 242
calls for reform 224–9, 241–4
Can’t Buy My Silence campaign 241–3
celebrities and public figures 195–6
child sex abuse cases 191
‘clawback’ clauses 193
contracting to silence 192–5
court cases 229–35
defamation cases and 235–9
Depp 193, 235–8, 301, 305
divorce proceedings 195
employers using 224, 227
free speech and 172, 226, 230
good uses of 190–1, 227–8
Green 172, 219, 226, 229–32, 235
Human Rights Commission report 227
independent legal advice on 153, 226
isolating survivors from support 205–6
journalists silenced by 194
MeToo and 189, 191, 229, 243, 244
parliamentary inquiries 207, 218, 224–5, 242
powerful men using 189, 197–203, 226, 234
Presidents Club dinner 218–21
pressure to sign 190, 195, 197, 226, 227
private document 190
public institutions using 196
public interest and 230, 231
reporting to police and 152, 192, 225
reputation risk 239–40
rich man’s justice 197–203
right to free speech and 190
Silenced No More Act (California) 243
speaking out as breach 153, 205, 226
universities 191, 196, 233, 243
 victims silenced by 166, 192–224
warning notice 227
Weinstein 164, 177, 189, 208–18, 221, 227, 239, 240
what are 190–1
workplace sexual harassment 172, 227–32, 242
non-disparagement clauses 192, 243, 305
non-publication orders 67, 75
Norvill, Eryn Jean 102, 269–71, 283–4, 290–2, 308, 309
NOW 103, 104, 105, 107, 110
Nundy, Karuna 20, 264, 265

O’Connell, Karen 105

offender’s playbook 160–87
defamation action see defamation actions
legal threat letter 160–5
NDAs see non-disclosure agreements (NDAs)
non-legal/unethical silencing techniques 173–80
post-publication legal action 181–7
privacy injunction 165–73
reputation management 179–80, 239–40
trolling 180
undermining accuser 174–7
undermining journalist 178–80
O’Neill, Deborah 196–7
O’Neill, Sean 173
online abuse 6, 8, 37, 52, 56, 72, 96, 298, 360, 378–82, 386
campaigners, of 78, 80
law reform to address 380–1
suicide of victim 365
victims and journalists, of 180, 298, 312, 335–7, 378–82
open justice 344–5
O’Reilly, Bill 195
Osawa, Shohei 366
Osbourne, Sharon 312
Ozoma, Ifeoma 243

Pachauri, Rajendra 252

Paradis, Vanessa 300, 311, 318
parliament
NDAs used in 196
sexism in 259–60
sexual abuse by MPs 110–28, 132–3, 143
women in 36–8, 259–60
Patel, Pragna 35, 56–7
Patel, Shailja 252
Perkins, Zelda 177, 208–18, 220–7, 233, 234, 239–42, 244
Perrottet, Dominic 134
Phillips, Gill 146, 161, 168–9
Phillips, Jess 38, 336
Pimienta, Lido 83
Pogrund, Gabriel 143
police
defamation suit by 82
educating 22
evidence xi–xiv, 2
failure to act 29, 49, 64, 114, 119, 122, 123, 143
gender bias and stereotypes 9
guides against myths 32–5
loss of faith in 2, 146
not believing victim 25
NSW Police campaign 131
reporting to see reporting to police
super-complaint against 64
treatment of victim 2, 25, 31, 64–5
Porter, Christian 55, 111–15, 119–23, 127, 250, 271–4, 293
Potter, Chelsey 109–10
powerful and privileged men 6, 9, 38, 41, 143–6, 152
defamation actions 245, 247, 250, 254–7, 278
false accusation preoccupation 343
NDAs used by 189, 197–203, 226, 234
strategies to silence women 160–87
Presidents Club dinner 218–21
presumption of innocence 170, 343, 344–6
Price, David 291
Price, Jenna 285
Prince Andrew 163, 164, 169, 197
privacy rights 167–73
private investigators 174–7
private schoolboys 40–1, 129–31
Proops, Anya 224
provocation 27–8, 317
psychological effects of abuse 111–16, 121, 330, 379
public interest
defamation defence 256, 286–92
NDAs and 230, 231
speaking out, in 230, 348, 384

racism 134–6, 242, 243

Ramani, Priya 252, 352–3
rape
corroboration requirement 23, 155, 280–2
force/violence requirement 24, 95
limitation rules 25–6
low level of conviction 2, 149, 161
marital 17–19, 22, 33, 34
myths about 22–4, 31–4
prompt reporting requirement 25–6
resistance requirement 23–4, 33
scepticism of law 22–6
unconscious victim 40, 94, 96
virginity test 20
rape culture 128–32, 361
Raper, Ashleigh 102
‘real victims’ 22–6, 30, 34, 95, 301, 334
Reay, Louise 266, 293
Reclaim the Streets 76
reporting by media see media reporting
reporting to police
delay in 25–6, 32, 33, 113, 283
domestic violence 22, 26–30
journalists asking about 152
 myths about 32, 33
NDA not preventing 152, 192, 225
not reporting see failure to report abuse
NSW Police campaign 131
percentage of victims 2, 25
police failing to investigate 29, 49, 64, 114, 119, 122, 123, 143
rape, prompt reporting requirement 25–6
retaliation for 351–2
reputation management 179–80, 239–40, 299, 310
‘revenge porn’ 69
Rhodes, James 358
Richard, Cliff 169–70
right to reply 159
Roa, Mónica 78–82
Roberts-Smith, Ben 238–9, 251
Roberts-Smith, Emma 238–9
Robertson, Geoffrey 46, 50, 51, 167, 172, 222, 223
Robinson, Mary 77
Ronaldo, Christiano 201–3
Roosevelt, Eleanor 15
Rose, Charlie 195
Rottenborn, Ben 334
Rowling, J.K. 306–8, 325
Ruiz-Navarro, Catalina 56, 68, 82–7, 179
Rush, Geoffrey 101, 102, 251, 269, 270, 282–4, 292, 308
Russia 88–90
Ryan, Susan 37
Ryder, Winona 311

same-sex conduct, criminalisation 62–3

Sara, Soma 131–2
Sarma, Pia 144, 149, 157, 160, 171, 294
Savile, Jimmy 160
schools see universities and schools
secondary victimisation 31
Segrave, Marie 65
Seo Hye-jin 255
settlement of claims 6, 152, 164, 183, 271
sex discrimination see discrimination
sex workers 19–20, 169, 278–9
sexist judicial comments 39–41
sexual assault victim gag laws 70–5
sexual harassment 2, 47, 60, 83, 101–6, 122
NDAs 172–3, 227–33, 241–3
restricting use of NDAs 242–3
universities, in 233, 241, 243
sexual history of victim 19–22, 280, 338
Sherborne, David 316, 317
Shipard, Carol 121
Shuai, Peng 59–60
silence-breakers 91–7, 208–17, 244
silencing of campaigners 76–82
silencing of journalists 56, 82–91
silencing of silence-breakers 91–7
silencing of victims xii–xvi, 1, 4
contempt laws 66–75, 147
criminal laws 61–6
defamation see defamation actions
law reinforcing 4, 9, 12–15, 30, 82
myths and stereotypes 29–35
NDAs see non-disclosure agreements (NDAs)
negotiated settlement 6, 183
offender’s strategies 160–87
Šimonović, Dubravka 351
SLAPP suits 82, 372–8, 386
anti-SLAPP laws 327, 374, 377–8
Smith, Kristen 65
‘Solidarity Not Silence’ campaign 294
Solnit, Rebecca 282
Sotomayor, Sonia 42, 43
Southall Black Sisters 35, 64, 290
speaking out 2–6, 146–87
action for change 140–1
cost of 5–6, 97
 making decision about 146–51
media, to 151–87
MeToo see MeToo movement
responses to see offender’s playbook
right to 146, 286–92, 347–58, 382
self-identification in media 69–72
women protecting each other 99
Speier, Jackie 196
Spicer, Tracey 101, 103–5, 107
spies and private investigators 174–7
Srinivasan, Amia 343
Stephens, Mark 222, 233, 234, 337
Stevenson, Patsy 367
Stocker, Nicola xi–xvi, 5, 159, 184, 185, 258, 259, 261, 292, 349
Stone, Yael 283, 284
Street, Jessie 15, 340
Sugita, Mio 366
suicide 114, 119, 271, 277, 288, 365
Swift, Taylor 369–70
Swinson, Jo 221

Tame, Grace 1, 66, 67, 70–2, 115–16, 127, 133, 134, 293
Taylor, Bronnie 130
Taylor, Jessica 330
Teach Us Consent 41, 130
teal independents 127–8
Teigen, Chrissy 194
Thomas, Imogen 168
Tickle, Louise 73
Tingle, Laura 123
Tolentino, Jia 6
Tölle, Neva 286–8, 361
Tortoise Media 73, 75
TrollBusters 381
trolling see online abuse
Trump, Donald 150, 178, 195
Turnbull, Malcolm 115, 260
Turner, Brock 40
Twohey, Megan 56, 215

UN Committee on the Elimination of Discrimination Against Women

(CEDAW) 4, 17, 45, 63, 92, 350
undermining accuser 174–7
undermining journalists 178–80
universities and schools
exposing rape culture 132
failure to protect students 233
NDAs used by 191, 196, 233, 241, 243
sexual harassment in 233, 241, 243
US civil rights movement 253–4

van Onselen, Peter 293

Vasquez, Camille 329
victim-blaming 2, 5, 27, 30, 31, 70, 189
victim charged with offence 61–3
victims speaking out see speaking out
Vita Activa 381
Volcánicas magazine 56, 82–7

Waldman, Adam 300–1, 312, 314, 331, 336

Ward, Vicky 150, 155, 156, 164–5, 178
Waseda Super Free case 92
Wass, Sasha 51, 317, 319–21
Waters, Larissa 133, 250
Weddington, Sarah 44
Weinstein, Harvey 7, 56, 101, 156, 157, 164, 169, 173–7, 189, 193, 197,
207–17, 221–2, 227, 233, 239, 240, 259, 306, 347
Whelan Browne, Christie 102, 103, 251, 275–7
whisper network 99–100, 128, 140
Wilkinson, Lisa 55
Williams, Shirley 38
Wilson, Alexandra 47
Winter, Jessica 335, 338
Wistrich, Harriet xiv, 93, 304
Wolanski, Adam 237
Women and Equalities Committee (UK) 38, 176
NDAs, inquiry on 223, 224, 228, 231
women as property 17–19
women in law 43–53
women in media 55–7
women in parliament 36–8, 259–60
women of colour 4, 37, 47, 65, 134–6, 158, 243
‘Women Who Speak’ project 359
Women’s Link Worldwide 39, 78, 80, 82
women’s rights 14–15, 286–92, 342–58, 382
equality 11, 14, 17, 92, 124, 135, 342, 349–57
freedom from violence 342, 349–57
freedom of speech see freedom of speech
international mechanisms to uphold 370
Wood, Evan Rachel 251, 336

Xianxi 60

Yacob, Zera 14
Yamaguchi, Noriyuki 94–6, 285, 365, 367

Zhu Jun 60