Violence then silence: how the law fails women

Perceived advances made by the Me Too movement for female victims of sexual assault are being rolled back. Laura Craik speaks to two lawyers determined to tackle further injustice

Girl power!’ shouts Annie, aged 11, dancing around her house in a crop top. She has discovered the Spice Girls, and loves their music as well as their message. Annie will continue to believe in girl power for another five years, until a boy at a party drags her into a bedroom and does things she doesn’t want him to do, her ‘no’ lost in the music thumping from the sound system outside. For years, Annie will blame herself. She’ll never report the attack but she’ll always wonder why the promise of ‘girl power’ didn’t make it through to womanhood. Maybe her ‘no’ hadn’t been loud enough.

Annie isn’t one woman – she’s the embodiment of the 84 per cent of sexual assault victims in the UK who never report their attackers to the police. She’s the 99 per cent of rape cases that never result in a charge. She’s the reason why the UK Victims Commissioner, Dame Vera Baird, has said, ‘We are witnessing the decriminalisation of rape.’ When the Spice Girls told us what they really, really want, it wasn’t this.

As an adult, Annie will come to realise that she could have yelled her ‘no’ through a megaphone and still no one would have listened. The tens of thousands of Annies out there are the reason that Jennifer Robinson, 41, and Keina Yoshida, 37, have written their new book, How Many More Women – essential reading for anyone left wondering how, in 2023, women are still being silenced.

Their credentials are impressive. Yoshida specialises in international human rights and is a legal adviser for the Centre for Reproductive Rights, while Robinson, who is Australian, represented exiled West Papuan leader Benny Wenda while she was a Rhodes Scholar at Balliol College, Oxford (she still works for him pro bono). In 2020, she successfully defended Amber Heard in the libel case that Johnny Depp took against his ex-wife and The Sun, leading Heard to call Robinson ‘the smartest person in the room’. That she is as well-connected as she is smart – Amal and George Clooney are close friends – brings Robinson more attention than she wishes for, not all of it positive.

But first, here’s why you should read this book – it’s because, as Robinson points out, ‘everyone needs to know that, the moment you suffer any form of gender-based violence, the law regulates what you can say to whom and when. There are legal risks at every turn, but most women don’t understand that. This is not just about high-profile celebrity cases.’

Certainly, Nicola Stocker never wanted to be high profile. In 2012, 51-year-old Stocker befriended her ex-husband’s new girlfriend online. During exchanges on the girlfriend’s

Facebook wall, Stocker wrote: ‘Last time I accused him of cheating, he spent a night in the cells, tried to strangle me.’ She didn’t name him, but he still sued her for defamation, leading to a five-year battle in which Stocker appealed, and ultimately won, her case in the Supreme Court. Had she lost, she would have faced damages of £200,000. Which begs the question: what does the right to free speech mean if you can’t afford to defend it?

It was while working on Stocker’s case that Robinson and Yoshida first met, as junior barristers at London’s Doughty Street Chambers. They have been fighting for women’s freedom of speech ever since. In 2017, when The New York Times published an article accusing the film producer Harvey Weinstein of sexually harassing women, it reignited the decade-old Me Too movement, leading to thousands of women breaking their silence and sharing their own experiences of sexual misconduct.

But in the past five years, women have increasingly faced a different kind of silencing: the rise in survivors speaking out has led to a spike in legal actions against them.

‘Me Too has been really important,’ notes Yoshida. ‘But as a part of the backlash against Me Too, we have seen shifts in the law, and the use of the law, to silence people.’

The most common method is a nondisclosure agreement (NDA), made infamous by the Weinstein case after it transpired that many of his victims were unable to speak out due to the legal constraints of having signed one, often while still traumatised. One of Weinstein’s former assistants, Zelda Perkins, 49, is illustrative of this point: she wasn’t even allowed a copy of her own NDA, and struggled to find a lawyer to take on her case, leading her to remark: ‘This isn’t just a Weinstein problem, but a law problem.’

The law is being weaponised, believe Robinson and Yoshida, to stop women speaking out against powerful and wealthy men not least because the expense of these cases is borne not by the state but by those facing the legal action. Amber Heard found this, to her cost, last December when she was ordered to pay $1 million to settle her long-running US defamation claim with ex-husband Johnny Depp, reduced from $10 million. (While Heard’s defence case was successful against Depp’s libel action in the British courts, where she was represented by Robinson, she was later sued in Virginia, after alleging she was a victim of domestic violence during their 15-month marriage.)

As one of the most bitter Hollywood divorces of modern times, the partly televised case brought worldwide media attention to Heard – and to her lawyer who was successful in her court action here. ‘I’m happy to have represented Amber in the United Kingdom, where Mr Depp lost the case, so as a matter of English law, she is recognised as a survivor of domestic and sexual violence,’ Robinson says now. ‘In my opinion, it’s absurd that a jury in the United States, on a more difficult standard of proof for Mr Depp, could come to the opposite conclusion.’

Asked how Heard is coping in the aftermath, Robinson says: ‘I don’t have instruction to be able to talk about her and how she is, but I’m in regular contact with her. It’s a positive thing that the US case is now settled, and on terms that protect her ability to be able to speak about her experiences. And I’m very glad for her that this chapter is over, because it was incredibly traumatic to go through those two trials. No woman should have to do that.’

Nor should anyone have to deal with the vile abuse Heard suffered online, which Robinson describes as ‘devastating. Not just for the impact it has had on her personally, or on those of us who worked with her, who also faced online abuse ourselves, but for every single woman who has suffered domestic or sexual violence, and was considering speaking out. Watching how Amber was treated in that case has had a huge silencing effect. We know it because we’re hearing it from our colleagues.’

Whose side people took in Depp v Heard is their choice, but what would Robinson say to those who chose to abuse Heard online because they didn’t believe her? ‘One in three women has suffered sexual violence – that means someone we know. How many of them will choose to tell you, or anyone else, about their experience, if they’ve seen Amber ridiculed? How many women will want to speak out? One of the most disappointing things for me was that I thought we were further ahead as a society than we currently are.’

Like Heard, Robinson continues to receive violent threats on social media (often accompanied by ‘#Justiceforjohnny’), and says it’s crucial to recognise the psychological impact of online abuse. ‘Women in any kind of public space face a horrendous amount. I’ve sought [professional] support, but I’ve also taken the decision to share some of these threats publicly. It’s important that people see this is happening. We have

‘EIGHTY FOUR PER CENT OF SEXUAL ASSAULT VICTIMS NEVER REPORT THEIR ATTACKERS TO THE POLICE’