#MeToo Tells Us that Legal Systems Have Failed Women

by: Emma Maguire , October 5, 2023

Book Info: Robinson, Jennifer & Keina Yoshida (2022), How Many More Women?: Exposing How the Law Silences Women, Sydney: Allen & Unwin.

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When the jury in the 2022 Depp v. Heard defamation trial ruled in favour of Johnny Depp, women around the world expressed dismay. Some asked if defamation laws would be used to further silence women (Hockstein 2022). Some even wondered whether the ruling sounded the death knell for the MeToo movement (Goldberg 2022).

The details of this high-profile case will be familiar to many, including the way Depp used social media algorithms and bots, as well as his fans, to drown out Heard and her supporters online (Yahr & Andrews 2022). But men around the world draw on an array of legal methods to silence women who may try to speak out against them in relation to allegations of sexual abuse or domestic violence (Gutowski & Goodman 2022).

How Many More Women?: Exposing How the Law Silences Women explains in plain language exactly how the law is failing women who are victims of domestic and sexual violence, and what we can do about it. Jennifer Robinson and Keina Yoshida, both human rights lawyers, take a global view in their book, drawing on their expertise and experience defending the rights of women in countries including Australia, the UK, and the US.

The MeToo movement is an important part of this story. Robinson and Yoshida write, ‘[i]n a sense the MeToo movement is a response to legal systems that do not serve women and girls’ (2). These systems fail victim-survivors in so many ways, and speaking out can feel like the only way to create change.

This problem is worldwide. The World Health Organisation estimates that 1 in 3 women globally have experienced physical or sexual violence. Despite this, convictions for these crimes remain extremely low. In the US fewer than 2.8% of sexual assault perpetrators will receive a conviction (RAINN 2023a). In Australia, only 1.5% of sexual assaults result in conviction (Full Stop Australia 2022, 4). And in the UK, Rape Crisis England and Wales report that ‘only 1 in 100 rapes recorded by police in 2021 resulted in a charge that same year, let alone a conviction’ (RCEW n.d.). And it is overwhelmingly, though not exclusively, women who are victims (AIHW 2020; RAINN 2023b; SOSRC 2023; RCEW n.d.; WHO 2021).

The book opens with the case of Nicola Stocker, a woman who was sued by her ex-husband for defamation after she posted a warning on Facebook addressed to Mr Stocker’s new girlfriend who had raised concerns about his behaviour. Nicola explained Mr Stocker had been arrested after he ‘tried to strangle’ her. After five years of legal battles, Mr Stocker won at trial. The trial judge’s reasoning is quoted in the book and is worth repeating here for its illumination of how the law and violent men can collude to ensure women’s silence: ‘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’ (xii). The judge concluded that the statement of the original Facebook post, that Mr Stocker had ‘tried to strangle’ Nicola, was not able to be proved, and thus neither was the suggestion ‘that the claimant was a dangerous man’ (xiii).

Somehow the judge was deemed better able to determine Mr Stocker’s intentions than Nicola, who had spent years in an intimate relationship with this man. That the defamation order was upheld by the court meant that Nicola Stocker was legally prevented from ever repeating this allegation. This is only one case held up by Robinson and Yoshida to show how defamation laws are used as gag orders by alleged abusers who are sometimes able to use courts for their own purposes (see also Gutowski & Goodman 2022). It also shows that the law is not foolproof and relies on interpretations made by legal practitioners who each have their own lens to view it through.

Robinson and Yoshida dissect key legal processes and mechanisms such as non-disclosure agreements, defamation laws, legal threat letters, and privacy injunctions, to show how they are being used by alleged perpetrators to silence women who might, or do, speak out against them. They place these issues against the backdrop of the patriarchal legacy of a justice system that was—quite literally—created by white men to protect white men’s interests, and they show how the effects of that foundation continue to linger (11-12). The trial judge’s comment in Nicola Stocker’s case is one illustration of this. Another example is the fact that in the UK it was still legal for a man to rape his wife as recently as 1991 (and 1994 for all Australian states and territories) (18). Historically in the US it was impossible for a man to be charged with raping a woman if she was ‘of previously unchaste character’ (19). The authors explain that underlying these laws is a patriarchal world view in which rape has been ‘historically seen and defined as an offence of honour, committed against the property of a husband or father, rather than an act which violated women’s bodily autonomy’ (19).

Importantly, Robinson and Yoshida describe real life cases that they have been involved in, giving an insider’s view. While actual laws vary from country to country there are certain recurring themes, one of which is the great cost victims face for speaking out. How Many More Women? describes how women have been devastated emotionally and financially, compounding the effects of trauma and disempowerment that stem from the abuse, assault, or harassment they have suffered. The book details how women have been forced into exile, driven to suicide, suffered psychologically, lost their jobs, lost their privacy, been publicly attacked, bankrupted, and had their reputations damaged. The authors overtly take on this cost as a signal that our systems need repairing, but the book also speaks directly to victims for whom the urgency of their cases cannot wait for structural change.

One particular chapter, ‘Her Guidebook to His Playbook,’ is aimed at informing and assisting victims with knowledge. The chapter lays out, step-by-step, the strategies powerful men use to silence women and the media that they see play out repetitiously. They explain that many women have signed Non-Disclosure Agreements (NDAs) either as part of their employment contract or as part of initial legal settlements. Once an NDA has been signed, if an alleged victim wants to speak out later, she cannot do so without violating the NDA’s legally binding terms. She is then liable for expensive legal costs and damages. Robinson and Yoshida explain that women often accept settlements in a state of traumatisation, and because they are often led to believe that their experience is an isolated incident there may be many reasons they choose not to continue with lengthy legal processes.

One of the other plays powerful predators have in their book is to let the authorities act as an initial hurdle. Women report feeling disempowered and let down by experiences of reporting to police, and many cases do not go further than this stage (146). Authorities will often also warn women not to talk about the case so that they are not charged with defamation (147).

If women do choose to go to the media in the face of new information (for example, seeing that other victims have come forward), or after feeling disappointed with police efforts, the playbook created by Robinson and Yoshida includes several steps. The first is a legal threat letter sent by the alleged perpetrator’s lawyer threatening either to sue for defamation or to seek a legal injunction (160). The second step is to obtain a privacy injunction on the basis that the reporting would affect his private life. The journalist or publisher would then need to prove to a court that there is a legal justification for publishing, or the public interest outweighs his private interest (166). The authors go to some lengths to explain that privacy laws around the world are varied and complex, and this is an ever-changing ground. The third play is described by Robinson and Yoshida as ‘non-legal and unethical silencing techniques’ (173) including personal attacks, surveillance, intimidation, harassment in person and online of the alleged victim, as well as similar attacks on the journalist or publication (174-178). This play also includes strategies of reputation management of the alleged perpetrator, including sophisticated media campaigns to gain public support for his character (179). The final play is to take legal action after publication against the woman herself or the media organisation.

Defamation cases can take many years to resolve, and Robinson and Yoshida explain that this process can be incredibly isolating for women who can become ‘alienated from their support networks’ (182) and have their resources depleted. They are told not to speak about the allegations they’ve made, and this along with the practical pressures can mean that their healing process is derailed for years (183). If he wins, Robinson and Yoshida remind us, she may be silenced forever (183). They offer this guide to the playbook to inform women who are considering speaking out about the process and risks. Many are unaware of these mechanics and go into the process unprepared for these powerful yet routine strategies used by perpetrators.

A central question for Yoshida and Robinson is how to balance the important legal principle of presumption of innocence with women’s rights to make their abuse public. Robinson and Yoshida counter the claim that women speaking out about violence obstructs the principle of innocent until proven guilty with an appeal to the fundamental human right of free speech. Drawing on political philosopher Amia Srinivasan, they argue that the right to presumed innocence is well protected and not under threat in cases like those explored here. They point to Srinivasan’s assertion that ‘the presumption of innocence does not tell us what to believe’ but rather ‘how guilt is to be established by the law: that is, by a process that deliberately stacks the deck in favour of the accused’ (Srinivasan 2021 cited in Robinson & Yoshida 2022: 146). As Srinivasan points out, believing women, ‘whom the law tends to treat as if they were lying’ and allowing them to exercise their right to free speech, in this case, ‘operates as a corrective norm’ that serves to level the playing field (346).

They point out that in defamation cases, which weigh a man’s right to a reputation and his right to free speech, courts often overlook the wider context of violence against women (348). There is enormous public interest in women being able to speak out about violence because their ability to do so can illuminate this critical social crisis (348). Free speech rights protect the ability for people to testify to structural and systemic issues of discrimination in order that they may be tackled and eliminated (348).

Importantly, women have—or should have—a right to live their lives free from violence. But this principle—equal in the catalogue of human rights to those of free speech, privacy, and reputation—is disturbingly absent from legal debates and decisions about defamation (349). States and governments are compelled by international law ‘to ensure that violence against women is prevented, investigated and prosecuted, and that women are protected from such violence’ (351). Robinson and Yoshida ask how international law can possibly be upheld if women are prevented from talking about their experiences. As a promising step forward, they point to the comments of a court in New Delhi who acquitted a woman charged with criminal defamation for publishing her experiences of sexual harassment: ‘the right of reputation cannot be protected at the cost of the life and dignity of woman’ (353). In addition to these more sophisticated arguments, Robinson and Yoshida also make the obvious, yet often unobserved, point that ‘trial by media’ does not bear equivalent consequences—especially for rich and powerful men—as being found guilty in a criminal court.

Underpinning the book is this strong and convincing argument that women’s free speech must be protected to enable them to speak about gendered violence so that the issues can be addressed, and the violence can be stopped. This work follows the likes of Helena Kennedy QC, author of Eve was Framed (1992) and Eve was Shamed (2018), and Jenny Morgan and Regina Graycar’s 1990 volume, The Hidden Gender of Law. Drawing on these and many other works of legal theory, with clarity and precision, Robinson and Yoshida lay out the case for legal protections for women’s freedom of speech to use their voices to fight for equality and against injustice.

How Many More Women? perhaps needs a warning: the cases it discusses are distressing to read about. But the book is measured and methodical and it draws our attention away from the distractions that surround MeToo discourse, to refocus one of its most central principles: women’s right to speak out about gendered violence and the fact that, everywhere in the world, they are being silenced by the legal system and a culture of victim blaming. The fighting spirit that resonates unmistakably through this book is contagious and inspiring.