BEYOND #METOO

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BEYOND #METOO

EBORAH

UERKHEIMER

The #MeToo movement has ushered in a new kind of sexual misconduct accusa-

tion—accusation leveled through informal channels of communication. A func-

tional analysis shows that unofficial reporting can advance important ends. But the

rise of informal accusation should be of special concern to legal scholars and law-

yers, who generally proceed from certain assumptions regarding the primacy of

formal systems of accountability. These basic assumptions need revision if, by

aiming to satisfy goals that our laws and legal institutions fail to achieve, informal

reporting channels are serving as substitutes for the officially sanctioned mecha-

nisms of accountability that monopolize scholarly attention. Unofficial reporting

pathways are imperfect legal workarounds; their prevalence means that the law of

sexual misconduct has been consigned to a relative state of quiescence. Over time,

survivors, long disserved by the criminal law, by campus disciplinary processes,

and by workplace complaint structures, have mostly turned away from the systems

that have forsaken them. A needed redesign of official complaint channels should

be informed by the benefits of informal reporting, along with a commitment to

awakening law.

NTRODUCTION

................................................. 1147

ORMAL

HANNELS FOR

) R

EPORTING

EXUAL

ISCONDUCT

........................................... 1151

A. Criminal Justice System ............................. 1153

B. College Campus ..................................... 1159

C. Workplace .......................................... 1163

II.

ORKINGS OF

NOFFICIAL

CCUSATION

.......... 1167

A. Unofficial Reporting Channels: A Taxonomy ....... 1168

1. Traditional Whisper Network ................... 1168

2. Double Secret Whisper Network ................ 1169

3. Shadow Court of Public Opinion ............... 1171

4. New Court of Public Opinion ................... 1172

B. A Functional Analysis of Unofficial Reporting ...... 1174

1. Victim Empowerment ........................... 1174

2. Group Member Protection ...................... 1177

3. Epistemic Justice ................................ 1179

4. Norm Evolution ................................ 1181

* Copyright

2019 by Deborah Tuerkheimer, Class of 1940 Research Professor,

Northwestern University Pritzker School of Law. I am grateful to Ian Ayres, Danielle

Citron Keats, Sarah Lawsky, Jennifer Long, Melissa Murray, Janice Nadler, and Jide

Nzelibe for their insightful comments on earlier drafts. Tom Gaylord, Faculty Services and

Scholarly Communications Librarian, contributed outstanding research assistance, and the

Northwestern University Pritzker School of Law Faculty Research Program furnished gen-

erous support.

1146

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November 2019] BEYOND #METOO 1147

5. Institutional Change ............................. 1184

6. Offender Accountability ......................... 1185

C. The Future of Unofficial Reporting: A First

Assessment .......................................... 1188

III.

OWARD A

EXT

ENERATION OF

ORMAL

EPORTING

HANNELS

................................. 1191

A. Criminal Justice System ............................. 1192

B. College Campus ..................................... 1197

C. Workplace .......................................... 1203

ONCLUSION

................................................... 1208

NTRODUCTION

In early October 2017, accusations of sexual assault and harass-

ment against Harvey Weinstein, first published by the New York

Times and The New Yorker,

catalyzed the #MeToo movement.

allegations against Weinstein multiplied in the coming weeks and

months,

the media intensified its focus on sexual misconduct

other powerful men.

Soon the coverage of misconduct ranging from

See Jodi Kantor & Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment

Accusers for Decades, N.Y. T

IMES

(Oct. 5, 2017), https://www.nytimes.com/2017/10/05/us/

harvey-weinstein-harassment-allegations.html; Ronan Farrow, From Aggressive Overtures

to Sexual Assault: Harvey Weinstein’s Accusers Tell Their Stories, N

ORKER

(Oct. 10,

2017), https://www.newyorker.com/news/news-desk/from-aggressive-overtures-to-sexual-

assault-harvey-weinsteins-accusers-tell-their-stories.

The “Me Too” campaign originated in 2007, when activist Tarana Burke began a

nonprofit to assist victims of sexual harassment and assault. Sandra E. Garcia, The Woman

Who Created #MeToo Long Before Hashtags, N.Y. T

IMES

(Oct. 20, 2017), https://

www.nytimes.com/2017/10/20/us/me-too-movement-tarana-burke.html. For a reflection on

when a protest campaign like #MeToo becomes a movement, see Beverly Gage, When

Does a Moment Turn into a ‘Movement’?, N.Y. T

IMES

. (May 15, 2018), https://

www.nytimes.com/2018/05/15/magazine/when-does-a-moment-turn-into-a-movement.html.

See Sara M. Moniuszko & Cara Kelly, Harvey Weinstein Scandal: A Complete List of

the 87 Accusers, USA T

ODAY

(Oct. 27, 2017), https://www.usatoday.com/story/life/people/

2017/10/27/weinstein-scandal-complete-list-accusers/804663001.

“Sexual misconduct” encompasses sexual assault, sexual harassment, and non-

actionable sexual abuse. See Kathryn Casteel & Andrea Jones-Rooy, We Need a Better

Way to Talk About ‘Sexual Misconduct,’ F

IVE

HIRTY

IGHT

(Apr. 17, 2018), https://

fivethirtyeight.com/features/we-need-a-better-way-to-talk-about-sexual-misconduct

(explaining the importance of distinguishing between various types of sexual misconduct).

Although the existence of different subordinate categories complicates use of the umbrella

term, the “sexual misconduct” rubric provides a way to identify connections between the

distinct behaviors that fall under its mantle. See infra Section II.B.4 (describing how

understandings of what counts as sexual misconduct can evolve).

See Swetha Kannan & Priya Krishnakumar, A Powerful Person Has Been Accused of

Misconduct at a Rate of Nearly Once Every 20 Hours Since Weinstein, L.A. T

IMES

(Dec. 29,

2017), https://www.latimes.com/projects/la-na-sexual-harassment-fallout. Over the course

of several years preceding the Weinstein story, clusters of high-profile sexual misconduct

accusations surfaced against Bill Cosby, Roger Ailes, and Donald Trump, among others,

likely seeding the ground for #MeToo. For one pre-Weinstein perspective, see Lani

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1148 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:1146

boorish to criminal expanded to disparate industries and institutions,

including publishing, fashion, music, sports, entertainment, architec-

ture, advertising, comedy, philanthropy, hospitality, retail, farm, fac-

tory, academia, technology, media, church, and politics.

By the close

Seelinger, Trump, Cosby, and Why Being a Woman in 2017 Feels Harder than Ever,

USTLE

(June 17, 2017), https://www.bustle.com/p/trump-cosby-why-being-a-woman-in-

2017-feels-harder-than-ever-65066.

See, e.g., Patricia Cohen & Tiffany Hsu, Children’s Book Industry Has Its #MeToo

Moment, N.Y. T

IMES

(Feb. 15, 2018), https://www.nytimes.com/2018/02/15/business/

childrens-publishing-sexual-harassment.html; Emilia Petrarca, Fashion’s #MeToo

Movement Is Loudest on Instagram, T

(Apr. 5, 2018), https://www.thecut.com/2018/

04/fashions-me-too-movement-instagram-sexual-harassment.html; Marlow Stern, ‘Russell

Simmons Is Just the Beginning’: Music Industry Braces for #MeToo Impact, D

AILY

EAST

(Dec. 15, 2017), https://www.thedailybeast.com/russell-simmons-is-just-the-beginning-

music-industry-braces-for-metoo-impact; Juliet Macur, The ‘Me Too’ Movement Inevitably

Spills into Sports, N.Y. T

IMES

(Oct. 19, 2017), https://www.nytimes.com/2017/10/19/sports/

olympics/mckayla-maroney-me-too.html; Notable Entertainment Figures Accused of Sexual

Misconduct in Wake of Harvey Weinstein, H

OLLYWOOD

. (Nov. 30, 2017), https://

www.hollywoodreporter.com/lists/hollywood-media-men-accused-of-sexual-misconduct-

and-harassment-post-weinstein-1057193; Stassa Edwards, Women in Architecture Have

Their Own Shitty Men List, J

EZEBEL

(Mar. 16, 2018), https://jezebel.com/women-in-

architecture-have-their-own-shitty-men-list-1823844222; Amelia Harnish, Advertising’s

#MeToo Movement Picks Up Speed, R

EFINERY

29 (Mar. 13, 2018), https://

www.refinery29.com/en-us/2018/03/193440/times-up-advertising-female-advertising-

executives-sexual-harassment; David Sims, Louis C.K. and Abuse of Power in the Comedy

World, A

TLANTIC

(Nov. 9, 2017), https://www.theatlantic.com/entertainment/archive/2017/

11/louis-ck-sexual-misconduct-allegations/545489; #MeToo Hits the Nonprofit World,

HRON

. P

HILANTHROPY

(Apr. 5, 2018), https://www.philanthropy.com/specialreport/

metoo-hits-the-nonprofit-worl/167; Maura Judkis & Emily Heil, Rape in the Storage Room.

Groping at the Bar. Why Is the Restaurant Industry so Terrible for Women?, W

ASH

. P

OST

(Nov. 17, 2017), https://www.washingtonpost.com/lifestyle/food/rape-in-the-storage-room-

groping-at-the-bar-why-is-the-restaurant-industry-so-terrible-for-women/2017/11/17/

54a1d0f2-c993-11e7-b0cf-7689a9f2d84e_story.html; Yuki Noguchi, Low-Wage Workers Say

#MeToo Movement Is Chance for Change, NPR (Feb. 6, 2018), https://www.npr.org/2018/

02/06/583428098/low-wage-workers-say-metoo-movement-is-a-chance-for-change; Susan

Chira & Catrin Einhorn, How Tough Is It to Change a Culture of Harassment? Ask Women

at Ford, N.Y. T

IMES

(Dec. 19, 2017), https://www.nytimes.com/interactive/2017/12/19/us/

ford-chicago-sexual-harassment.html; Nick Anderson, Academia’s #MeToo Moment:

Women Accuse Professors of Sexual Misconduct, W

ASH

. P

OST

(May 10, 2018), https://

www.washingtonpost.com/local/education/academias-metoo-moment-women-accuse-

professors-of-sexual-misconduct/2018/05/10/474102de-2631-11e8-874b-

d517e912f125_story.html; Alyssa Newcomb, #MeToo: Sexual Harassment Rallying Cry Hits

Silicon Valley, NBC N

EWS

(Oct. 23, 2017), https://www.nbcnews.com/tech/tech-news/

metoo-sexual-harassment-rallying-cry-hits-silicon-valley-n813271; Jill Disis, The Media

Men Who Have Been Accused of Sexual Misconduct, CNN B

. (Nov. 30, 2017), https://

money.cnn.com/2017/11/29/media/media-men-accused-of-sexual-misconduct/index.html;

Harry Bruinius, Churches Struggle with Their #MeToo Moment, C

HRISTIAN

. M

ONITOR

(Apr. 20, 2018), https://www.csmonitor.com/USA/Politics/2018/0420/Churches-struggle-

with-their-MeToo-moment; Dan Corey, Here’s a List of Political Figures Accused of Sexual

Misconduct, NBC N

EWS

(Dec. 19, 2017), https://www.nbcnews.com/storyline/sexual-

misconduct/here-s-list-political-figures-accused-sexual-misconduct-n827821.

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November 2019] BEYOND #METOO 1149

of 2017, #MeToo had spawned a massive reckoning with a vast con-

tinuum of sexual abuse.

More than a year later, the landscape of sexual misconduct alle-

gations looks markedly different from any that has come before. As

survivors—mostly women

—have found strength in numbers and a

growing cultural responsiveness to their claims, the widespread

impetus to disclose abuse has intensified. In this rapidly shifting envi-

ronment, a new system of sexual misconduct accusation has emerged

and quickly become dominant. Yet the ascendance of what I will call

“unofficial reporting channels”

—a collection of informal channels

that circumvent the law and law-adjacent institutional structures

—

has been entirely overlooked.

Channels for reporting

sexual misconduct that skirt established

complaint pathways should hold special interest for legal scholars and

lawyers, who generally proceed from certain assumptions regarding

the primacy of formal systems of accountability.

These basic assump-

See Edward Fesenthal, The Choice: TIME’s Editor-in-Chief on Why the Silence

Breakers Are the Person of the Year, TIME (Dec. 6, 2017), http://time.com/time-person-of-

the-year-2017-silence-breakers-choice (explaining why the magazine selected for its

“Person of the Year” the women who catapulted the #MeToo movement).

At the most extreme end of the sexual abuse spectrum, nationwide survey data

suggest that nearly one in five women have been raped at some point in their lives.

ICHELE

C. B

LACK ET AL

., C

TRS

FOR

ISEASE

ONTROL

& P

REVENTION

, T

ATIONAL

NTIMATE

ARTNER AND

EXUAL

IOLENCE

URVEY

: 2010 S

UMMARY

EPORT

1 (2011)

[hereinafter NISVS]. For men, the number is one in seventy-one. Id. Transgender people

experience sexual violence at rates of nearly one in two. S

ANDY

E. J

AMES ET AL

., N

’

FOR

RANSGENDER

QUAL

., T

EPORT OF THE

2015 U.S. T

RANSGENDER

URVEY

5 (2016) (in the largest survey of transgender people in the United States, forty-seven

percent of respondents reported having been sexually assaulted). Data on sexual

harassment, while sparse, also shows a steep gender disparity. See Rhitu Chatterjee, A New

Survey Finds 81 Percent of Women Have Experienced Sexual Harassment, NPR (Feb. 21,

2018, 7:43 PM), https://www.npr.org/sections/thetwo-way/2018/02/21/587671849/a-new-

survey-finds-eighty-percent-of-women-have-experienced-sexual-harassment (finding that

eighty-one percent of women and forty-three percent of men had experienced sexual

harassment).

More fully, “unofficial reporting channels,” used interchangeably with “informal

reporting channels,” are pathways for complaint other than those established by an

institution with authority under the applicable legal framework to process an allegation of

misconduct. See infra Section II.A.

See infra notes 19–21 and accompanying text (noting that sexual misconduct may be

regulated by criminal law, by Title IX, and by Title VII, depending on where the

misconduct occurs and what it comprises). As I will explain, with regard to each of these

legal regimes, established procedures for reporting misconduct generally run through law

enforcement officers, campus disciplinary officials, and Human Resources departments,

respectively.

Unless otherwise specified, my use of “reporting” throughout this discussion includes

not just formal complaints but informal or unofficial disclosures of misconduct as well.

By “formal systems of accountability,” I have in mind the multiple legal regimes

governing sexual misconduct. See supra note 10. Across disparate settings—whether in the

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1150 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:1146

tions need revision if, as I will argue, by aiming to satisfy goals that

our laws and legal institutions fail to achieve, informal reporting chan-

nels are serving as substitutes for the officially sanctioned mechanisms

of redress that monopolize scholarly attention. Moreover, by viewing

unofficial reporting channels as imperfect legal workarounds, we can

better discern what these channels accomplish and where they fall

short.

To make sense of what is currently unfolding, a proposed tax-

onomy classifies informal avenues of complaint into four distinct

types: the Traditional Whisper Network, the Double Secret Whisper

Network, the Shadow Court of Public Opinion, and the New Court of

Public Opinion.

A functional analysis of these channels establishes

that unofficial reporting can advance several important ends.

Even so, there are limits to what informal accusation can accom-

plish, particularly because it deliberately bypasses official systems of

accountability. To be clear, this shunning of the law of sexual miscon-

duct is not a novel development, nor is it unexpected. Sexual abuse

victims have long been disserved by the criminal law, by campus disci-

plinary processes, and by workplace complaint mechanisms.

Over

time, survivors have mostly turned away from the institutions that

have forsaken them.

As the #MeToo movement has gathered force, the law has

remained largely missing in action, with the perceived futility of

invoking formal accountability measures taken as given. But the near

absence of law is too damning to ignore. Rather than remain a domi-

nant feature of our societal approach to sexual assault and harass-

ment, the proliferation of informal complaint underscores the need to

invigorate our systems of formalized redress.

Unless we are willing

criminal justice system, on college campuses, or in workplaces—victims must complain

through an established channel in order to initiate the process designed to mete out an

appropriate measure of accountability. Sexual misconduct in the military is not specifically

included in this analysis, although its official systems of accountability (like those discussed

in Part I) are underutilized. See generally Michelle A. Mengeling et al., Reporting Sexual

Assault in the Military: Who Reports and Why Most Servicewomen Don’t, 47 A

. J.

REVENTIVE

. 17, 17 (2014) (“Actual and perceived reporting consequences deter

servicemen from reporting.”).

See infra Section II.A.

See infra Section II.B.

Victims of sexual misconduct come to these different systems with varying needs and

desires. Some victims want the abuser to be deterred from further predation. Others want

the abuser to be punished or removed from a setting that might involve future shared

interaction. Others want an apology or other restorative measures. Still others simply want

to be believed, validated, and supported. On each of these dimensions, established systems

have largely fallen short.

To be clear, my claim is not that informal reporting should entirely disappear as

option, but rather that the frequency of formal reporting (in absolute and relative terms)

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November 2019] BEYOND #METOO 1151

to consign the laws that regulate sexual misconduct

to a state of per-

petual dormancy, the channels that activate legal consequences must

be reimagined.

By creating a next generation of official reporting

channels, we can breathe new life into the law of sexual misconduct,

along with the protections it offers victims and accused alike.

This Article proceeds as follows: Part I situates unofficial

reporting in its legal context by highlighting the woeful inadequacies

of formal channels for reporting sexual assault and harassment, first in

the criminal justice system, then on college campuses, and finally in

the workplace. The failings of these formal systems lead victims and

survivors to turn, increasingly, to back channels. Part II analyzes the

functions served by informal reporting and assesses the inevitable

tradeoffs entailed. Part III returns to the law, observing that if most

victims continue to reject formal reporting channels in favor of

informal alternatives, the legal regime governing sexual misconduct

will remain moribund. The proposed solution would reengineer

formal reporting channels—in the criminal justice system, on college

campuses, and in the workplace—by replicating the virtues of unoffi-

cial reporting. The conclusion emphasizes the importance of under-

standing the workings of unofficial reporting if we hope to transform

our collective response to sexual misconduct in this time of extraordi-

nary flux.

ORMAL

HANNELS FOR

) R

EPORTING

EXUAL

ISCONDUCT

Sexual misconduct is regulated by a set of laws that, broadly

speaking, target particular settings. On college campuses, Title IX for-

bids sex discrimination, which implicates a range of sexually abusive

behavior.

In the workplace, Title VII prohibits actionable sexual

should increase. Put differently, perpetual lopsidedness in the official/unofficial response

ratio would be a significant problem. See Melissa Murray, Consequential Sex: #MeToo,

Masterpiece Cakeshop, and Private Sexual Regulation, 113 N

. U. L. R

. 825, 872–76

(2019) (arguing that the #MeToo movement cannot achieve its broader policy goals

without the state reforming its mechanisms that address sexual violence).

For the sake of simplicity, the body of statutes, regulations and cases that spans the

criminal law (as it relates to sexual assault), Title IX (as it relates to sexual misconduct),

and Title VII (as it relates to sexual harassment) will be described as “the law of sexual

misconduct.”

Substantive law reform is also important, but—in contrast to what has been

identified here—this need is widely discussed in existing scholarship.

“No person in the United States shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to discrimination under any

education program or activity receiving Federal financial assistance . . . .” 20 U.S.C.

§ 1681(a) (2012). For early recognition of sexual harassment as prohibited sex

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1152 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:1146

harassment.

The criminal law, which regulates conduct within a set

jurisdiction, is an exception to this institution-based approach.

(Even

so, as a practical matter, because sexual assault is widely perceived as

less serious when it is perpetrated by a fellow student or by a co-

worker, the criminal law tends to become less germane in locations

also governed by a separate legal regime.)

Across the range of regulatory systems, one common feature per-

sists: Sexual misconduct is seldom addressed through established

channels.

Regardless of who is designated as gatekeeper—police

officer, campus disciplinary authority, Human Resources (HR) repre-

sentative—sexual abuse victims overwhelmingly opt not to formally

report the misconduct. There are many reasons for this but most are

variations on the theme of system failure. Reporting rarely results in

discrimination under Title IX, see Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290

(1998), which discusses teacher-student sexual harassment, and Davis ex rel. LaShonda D.

v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 633 (1999), which considers peer sexual

harassment. Sexual harassment qualifies as discrimination under Title IX if it is “so severe,

pervasive, and objectively offensive that it effectively bars the victim’s access to an

educational opportunity or benefit.” Davis, 526 U.S. at 633. A single instance of rape or

sexual assault by another student may satisfy this standard. See, e.g., Soper ex rel. Soper v.

Hoben, 195 F.3d 845, 855 (6th Cir. 1999) (rape and sexual abuse “obviously qualif[y] as . . .

severe, pervasive, and objectively offensive sexual harassment”). For a discussion of how

Title IX applies to campus sexual misconduct, see Catharine A. MacKinnon, In Their

Hands: Restoring Institutional Liability for Sexual Harassment in Education, 125 Y

ALE

L.J.

2058, 2061–67 (2016).

“It shall be an unlawful employment practice for an employer . . . to fail or refuse to

hire or to discharge any individual, or otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because of

such individual’s race, color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e-2(a)

(2012). On the theory of sexual harassment as sex discrimination, see C

ATHARINE

INNON

, S

EXUAL

ARASSMENT OF

ORKING

OMEN

143–213 (1979). For early

judicial recognition of this understanding, see Williams v. Saxbe, 413 F. Supp. 654, 657–61

(D.D.C. 1976), which held that retaliatory actions of a male supervisor, taken against a

female employee for declining his sexual advances, are actionable under Title VII. For U.S.

Supreme Court recognition, see Meritor Sav. Bank v. Vinson, 477 U.S. 57, 73 (1986),

holding that a claim of hostile environment sex discrimination is actionable under Title

VII. For a summary of the development of sexual harassment law, see Kimberly A.

Yuracko, Sexual Harassment Law: An Evolution in Theory, Scope and Impact, in E

DWARD

LGAR

ESEARCH

ANDBOOK ON

EMINIST

URISPRUDENCE

284–302 (Robin West &

Cynthia G. Bowman eds., 2019).

Another exception is the civil law. Although the civil rights remedy of the Violence

Against Women Act (VAWA) was declared unconstitutional, state civil remedies remain

generally available. See Krista M. Anderson, Twelve Years Post Morrison: State Civil

Remedies and a Proposed Government Subsidy to Incentivize Claims by Rape Survivors, 36

ARV

. J.L. & G

ENDER

223, 238–45 (2013) (surveying state civil remedies for sexual

assault).

This failure undermines equal protection norms. See Deborah Tuerkheimer,

Underenforcement as Unequal Protection, 57 B.C. L. R

. 1287 (2016) (arguing that the

state’s widespread denial of protection to sexual assault survivors, who are predominantly

women, is a hallmark of legal inequality).

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November 2019] BEYOND #METOO 1153

perpetrator accountability, but it often exacts a significant toll on vic-

tims of sexual harassment and assault. On balance, survivors confront

the very real prospect that complaining to authorities will prove costly

and, in the end, useless. The law of sexual misconduct is thus largely

unenforced, in considerable part because it is scarcely even invoked.

Formal complaint channels serve as conduits for a mere fraction

of sexual misconduct allegations; informal mechanisms provide the

increasingly attractive alternative. On this view, extra-legal reporting

channels spring from the void left by inadequate systemic responses to

sexual abuse—a lacuna to which we now turn.

A. Criminal Justice System

A sizeable majority of sexual assault victims choose never to

involve law enforcement officials.

According to conservative Justice

Department estimates, the population most vulnerable to sexual

assault—females ages 18–24

—report to police at rates of only

twenty percent for college students and thirty-two percent for non-

college students.

Women of color, both on and off campus, may be

even less likely to report sexual assault than their white

counterparts.

It is important to emphasize that enforcement-related concerns extend beyond the

underreporting problem. While formal reporting does not necessarily lead to enforcement,

it is a requisite for enforcement. Over time, an increase in formal reporting can be

expected to generate greater enforcement, not only because formal reports bring cases into

the systems with enforcement capacity, but also because an influx of reports may help to

reduce gender bias in the processing of complaints. See infra Section II.B.3 (explaining

how informal reporting can advance epistemic justice). However, boosting the frequency of

formal complaint is not a complete corrective for enforcement problems in the criminal

justice system, on college campuses, or in the workplace.

See P

ATRICIA

JADEN

& N

ANCY

HOENNES

, U.S. D

’

T OF

USTICE

, E

XTENT

ATURE

AND

ONSEQUENCES OF

APE

ICTIMIZATION

: F

INDINGS FROM THE

ATIONAL

IOLENCE

GAINST

OMEN

URVEY

33 (2006), https://www.ncjrs.gov/pdffiles1/nij/

210346.pdf (finding that, among rape victims, 19.1% of adult women and 12.9% of adult

men reported the crime to police); see also David P. Bryden & Sonja Lengnick, Rape in the

Criminal Justice System, 87 J. C

RIM

. L. & C

RIMINOLOGY

1194, 1222 (1997) (suggesting the

probability that “unreported rapes are, disproportionately, acquaintance rapes,” for

reasons that include survivors blaming themselves, viewing the assault as other than “real

rape,” and wishing to maintain a relationship with the perpetrator).

See S

OFI

INOZICH

& L

YNN

ANGTON

, B

UREAU OF

USTICE

TATISTICS

, U.S. D

’

USTICE

, R

APE AND

EXUAL

SSAULT

ICTIMIZATION

MONG

OLLEGE

-A

EMALES

, 1995–2013, at 1, 5 (2014) (“For the period 1995–2013, females ages 18 to 24 had

the highest rate of rape and sexual assault victimizations compared to females in all other

age groups . . . . College-age male victims accounted for 17% of rape and sexual assault

victimizations against students and 4% against nonstudents.”).

Id. at 9.

See Colleen Murphy, Another Challenge on Campus Sexual Assault: Getting Minority

Students to Report It, C

HRON

. H

IGHER

DUC

. (June 18, 2015), https://www.chronicle.com/

article/Another-Challenge-on-Campus/230977 (describing the reporting gap between white

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1154 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:1146

To make a police report, a complainant must be prepared to

speak to multiple officers, who may or may not be specially trained in

trauma-informed interview techniques.

Depending on the nature

and timing of the allegation, detectives may seek to gather corrobora-

tive evidence, including forensic evidence (colloquially known as a

“rape kit”).

Law enforcement officers “typically are prohibited from

submitting victims to polygraph or any other truth-telling test,” and

officers are instructed not to pressure complainants to “make any

decisions regarding their participation in the investigation or prosecu-

tion processes.”

Many police departments deviate from recom-

mended practices, however, and even under the best of circumstances,

a police department’s interest in closing the investigation—by either

an arrest or an “unfounded” determination

—is often paramount.

This makes a process that is bound to be difficult for complainants

even more taxing and potentially traumatic.

Apart from these formidable obstacles, one factor that looms

large in the survivors’ reporting calculus is the predictability of a non-

response, which often stems from what I have called “credibility dis-

college women and college women of color and positing that the “layers of privilege”

required to pursue a complaint through the college administrative process are often less

available to minority students). Off campus, commentator Hannah Giorgis has posited that

an “impossible hierarchy of acceptable victimhood” means that “black women who walk

willingly into the rooms of men they call ‘brother’ are considered undeserving of

protection from any violence that happens therein.” Hannah Giorgis, Many Women of

Color Don’t Go to the Police After Sexual Assault for a Reason, G

UARDIAN

(Mar. 25,

2015), https://www.theguardian.com/commentisfree/2015/mar/25/women-of-color-police-

sexual-assault-racist-criminal-justice; see also J

ENNIFER

C. N

ASH

, B

LACK

OMEN AND

APE

: A R

EVIEW OF THE

ITERATURE

(2009), https://www.brandeis.edu/projects/fse/

slavery/united-states/slav-us-articles/nash2009.pdf (surveying the literature on black

women and rape, including studies finding that black women are less likely than white

women to report rape).

See Karol Ilagan, Reporting to Police: A Guide for Victims of Sexual Abuse, R

EVEAL

(Aug. 11, 2016), https://www.revealnews.org/article/reporting-to-police-a-guide-for-victims-

of-sexual-abuse (describing what to expect from the reporting process).

See id.

Id.

See infra notes 38–40 and accompanying text (explaining and contextualizing

“unfounding” determinations).

See Ilagan, supra note 28 (“The interview process can be difficult for a victim,

primarily because the detectives will need to ask deeply personal questions. Often, victims

are not familiar with the criminal justice system and find it complicated and

intimidating.”).

According to one expert, “When victims do report to the criminal justice system, the

way in which they’re treated is very distressing to [them] . . . . And they do describe it as a

second rape or secondary victimization. Something that exacerbates their post-traumatic

stress symptoms above and beyond the rape itself.” Marisa Kabas, What Is ‘Second Rape’

and What Can We Do About It?, S

PLINTER

(July 7, 2016), https://splinternews.com/what-is-

second-rape-and-what-can-we-do-about-it-1793860078 (quoting psychologist Rebecca

Campbell).

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counting.”

At every stage of the criminal process, allegations of

sexual assault are mostly treated with skepticism, especially in cases

involving acquaintances.

In short, rape victims often forego the crim-

inal justice system in anticipation of how they believe their case will

be (mis)handled.

Many survivors perceive that the police are unlikely to pursue

allegations of non-stranger rape.

Among non-student survivors,

nearly one in five surveyed did not report a sexual assault because

“police would not or could not do anything to help.”

This concern is

well grounded. Little has changed since a 1997 survey exposed the

police practice of “unfounding” (or deeming unsubstantiated) rape

complaints at disproportionately high rates.

Recent empirical

research on policing establishes the endurance of pervasive police

biases in sexual assault cases

—biases that tend to result in prema-

For a comprehensive look at the skeptical treatment of sexual assault throughout the

criminal justice system, see Deborah Tuerkheimer, Incredible Women: Sexual Violence and

the Credibility Discount, 166 U. P

. L. R

. 1 (2017).

Id. at 29–30.

See Kimberly Hefling, Justice Department: Majority of Campus Sexual Assault Goes

Unreported to Police, PBS N

EWS

OUR

(Dec. 11, 2014), http://www.pbs.org/newshour/

rundown/four-five-acts-campus-sexual-assault-go-unreported-police (quoting a victim’s

rights lawyer as explaining that the massive underreporting of campus rape is significantly

attributable to the fact that victims “know in our society that the only rapes that are taken

seriously are those committed by strangers and are significantly violent”).

INOZICH

& L

ANGTON

, supra note 25, at 9. The corresponding figure for students is

nine percent. Id. Apart from their perceptions of the likely police response, victims’ own

internalization of the criminal justice system’s longstanding non-pursuit of sexual assault

cases is reflected in the category “personal matter,” which was given as a reason for non-

reporting by twenty-six percent of students and twenty-three percent of non-students. Id.;

see also infra note 86 (exploring why students might define an incident as “not serious

enough to report”). For a discussion of how the identification of serial offenders can

address this concern, see infra note 274 and accompanying text.

See Bryden & Lengnick, supra note 24, at 1230 (“As with all crimes, the police

decide whether a reported rape actually occurred, and attempt to determine who

committed it. If they want the case to go forward, they ‘found’ the complaint and transmit

the file to the prosecutor’s office.”); id. at 1233 (“[T]he unfounding rate for rape is roughly

four times higher than for other major crimes.”). To make an arrest or “found” a

complaint, the police merely require probable cause, a far lower evidentiary burden than

the standard of proof of guilt beyond a reasonable doubt that the prosecutor must

surmount at trial to convict.

Id. at 1243 (“[M]ost observers agree that founding decisions in acquaintance rape

cases are strongly affected by the purported victim’s contributory negligence, and by her

perceived immorality. . . . If police bias does indeed distort founding decisions, this appears

to be the type of case in which most of the distortion occurs.”); see also C

ASSIA

POHN

ATHARINE

ELLIS

, U.S. D

’

T OF

USTICE

, P

OLICE AND

ROSECUTING

EXUAL

SSAULT

NGELES

ITY AND

OUNTY

: A C

OLLABORATIVE

TUDY IN

ARTNERSHIP WITH

THE

NGELES

OLICE

EPARTMENT

THE

NGELES

OUNTY

HERIFF

’

EPARTMENT

AND THE

NGELES

OUNTY

ISTRICT

TTORNEY

’

FFICE

36–82

(2012) (analyzing rapes reported to the Los Angeles Police Department from 2005 to 2009

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1156 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:1146

ture closings of rape investigations (often at the initial stages).

Con-

sistent with the nation-wide data,

police have systematically

mishandled sexual assault allegations in jurisdictions including Los

Angeles,

Baltimore,

St. Louis,

New Orleans,

New York,

Salt

and finding that the existence of a relationship between the victim and the suspect

influenced case processing).

See The Criminal Justice System: Statistics, R

APE

, A

BUSE

& I

NCEST

’

ETWORK

https://www.rainn.org/statistics/criminal-justice-system (last visited May 13, 2019)

(estimating, based on recent FBI and DOJ figures, that out of every 1000 rapes, 230 are

reported to the police and only 46 lead to an arrest); Alex Campbell & Katie J.M. Baker,

This Police Department Tosses Aside Rape Reports When a Victim Doesn’t Resist “to the

Best of Her Ability,” B

UZZ

EED

(Sept. 8, 2016), https://www.buzzfeed.com/alexcampbell/

unfounded (identifying eleven police departments with unfounding rates ranging from

twenty-four to fifty-four percent). The FBI Uniform Crime Report (UCR) provides annual

data on the rate at which certain crimes are closed, or “cleared.” See F

. B

UREAU OF

NVESTIGATION

, U.S. D

’

T OF

USTICE

, O

FFENSES

LEARED

, C

RIME IN THE

NITED

TATES

, 2015, at 1 (2016), https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/

offenses-known-to-law-enforcement/clearances/clearancetopic_final.pdf (explaining how

law enforcement agencies can clear an offense by arrest or “exceptional means”).

However, the sexual assault clearance rates reported by local law enforcement agencies are

not a good indicator of the likelihood that a report will result in an arrest. One important

reason is that when “[a law enforcement] agency determines that complaints of crimes are

unfounded or false, the agency eliminates that offense from its crime tally through an entry

on the monthly report.” F

. B

UREAU OF

NVESTIGATION

, U.S. D

’

T OF

USTICE

ETHODOLOGY

, C

RIME IN THE

NITED

TATES

, 2015, at 2 (2016), https://ucr.fbi.gov/crime-

in-the-u.s/2015/crime-in-the-u.s.-2015/resource-pages/2015-methodology_final.pdf. Because

crimes categorized as unfounded are not used to determine UCR clearance rates, the

frequency at which sexual assault offenses are unfounded greatly undermines the utility of

the FBI report. See J

OANNE

RCHAMBAULT

& K

IMBERLY

A. L

ONSWAY

, E

IOLENCE

GAINST

OMEN

’

LEARANCE

ETHODS FOR

EXUAL

SSAULT

ASES

20–26

(2007) (discussing methodological issues underlying UCR reports). A separate problem

with the UCR is that law enforcement agencies improperly use the “exceptional clearance”

classification for rape cases, often because a victim is deemed “uncooperative.” Id. at 16.

See Corey Rayburn Yung, How to Lie with Rape Statistics: America’s Hidden Rape

Statistics, 99 I

OWA

L. R

. 1197 (2014) (arguing that law enforcement officials have used a

practice of undercounting rape in official tallies because of cultural hostility to rape

complaints and to create the illusion of success in fighting violent crime).

Regarding campus sexual assault allegations in particular, one study of six colleges in

the Midwest found that 171 reports to police resulted in only twelve arrests. Todd Lighty et

al., Few Arrests, Convictions in Campus Sex Assault Cases, C

. T

RIB

. (June 16, 2011),

https://www.chicagotribune.com/news/ct-xpm-2011-06-16-ct-met-campus-sexual-assaults-

0617-20110616-story.html.

See S

POHN

& T

ELLIS

, supra note 39, at I (finding that the Los Angeles Police

Department cleared only 45.7% of reported rape or attempted rape cases between 2005

and 2009).

See Justin Fenton, City Rape Statistics, Investigations Draw Concern, B

ALT

. S

(June 27, 2010), https://www.baltimoresun.com/news/bs-md-ci-rapes-20100519-story.html

(reporting that each year, more than thirty percent of cases investigated are “deemed

unfounded,” which is five times the national average, and “[i]n 4 of 10 emergency calls to

police involving allegations of rape, officers conclude that there is no need for a further

review, so the case never makes it to detectives”).

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Lake County,

Philadelphia,

and Missoula, Montana.

Police

responses are particularly defective in cases involving women of color,

immigrants, LGBTQ individuals, women in poverty, and sex

workers.

See Jeremy Kohler, What Rape?, D

ART

FOR

OURNALISM

& T

RAUMA

(Mar. 3,

2006), https://dartcenter.org/content/what-rape?section=2 (reporting on the police practice

in St. Louis of diverting rape complaints from formal processing channels).

See Laura Maggi, NOPD Downgrading of Rape Reports Raises Questions, T

IMES

ICAYUNE

(July 12, 2009), https://www.nola.com/news/2009/07/nopd_downgrading_

of_rape_repor.html (reporting that most reported rapes were classified as noncriminal).

See John Eligon, Panel Seeks More Police Training on Sex Crimes, N.Y. T

IMES

(June

2, 2010), https://www.nytimes.com/2010/06/03/nyregion/03rape.html (reporting that the

number of forcible rape complaints deemed unfounded had dramatically increased and

that the category of sex crimes classified as misdemeanors had grown by six percent). For a

more recent discussion of the New York Police Department’s inadequate response to

sexual assault, see Zolan Kanno-Youngs, Inside the NYPD Special Victims Unit: Victims

Tell Their Stories, W

ALL

. J. (May 8, 2018), https://www.wsj.com/articles/inside-the-nypd-

special-victims-unit-victims-tell-their-stories-1525780801, which describes a “severely

understaffed” Special Victims Division and survivors’ accounts of insensitive, dismissive

treatment on the part of detectives.

See Erin Alberty & Janelle Stecklein, Study: Most Rape Cases in Salt Lake County

Never Prosecuted, S

ALT

AKE

RIB

. (Jan. 7, 2014), https://archive.sltrib.com/

story.php?ref=/sltrib/news/57323282-78/cases-rape-police-victim.html.csp (reporting on an

audit of 270 rape cases in Salt Lake County which showed that six percent were

prosecuted).

See Mark Fazlollah et al., Women Victimized Twice in Police Game of Numbers,

HILA

. I

NQUIRER

(Oct. 17, 1999), http://inquirer.philly.com/packages/crime/html/

sch101799.asp (reporting that hundreds of Philadelphia rape cases per year were

“mothballed” by being administratively categorized as an “investigation of person,” and

that such cases were not reflected in crime statistics).

See Letter from Thomas E. Perez, Assistant Attorney Gen. for Civil Rights, &

Michael W. Cotter, U.S. Attorney for the Dist. of Mont., to John Engen, Mayor, Missoula,

Mont. (May 15, 2013), http://www.justice.gov/crt/about/spl/documents/missoulapdfind_5-

15-13.pdf (finding that “there are significant deficiencies in [the Missoula Police

Department]’s investigations of sexual assault”).

See A

. C

IVIL

IBERTIES

NION

, R

ESPONSES FROM THE

IELD

: S

EXUAL

SSAULT

OMESTIC

IOLENCE

AND

OLICING

1 (2015), https://www.aclu.org/report/sexual-assault-

domestic-violence-and-policing. The nationwide survey of more than nine hundred

advocates, service providers, and attorneys confirmed “the entrenched nature of long-

recognized, gender-driven biases by police against domestic violence or sexual assault

claims.” Id. at 40. The survey also underscored the problem of police bias against

“survivors of color, and against survivors who are poor, Native American, immigrant, or

LGBTQ.” Id. An intersectional approach to equal protection requires accounting for the

multitudinous ways that bias confronts victims. See N

ASH

, supra note 27, at 1 (“[B]lack

women are less likely to disclose rape, prosecutors are less likely to pursue criminal

charges against an assailant when a black woman is the survivor, and jurors are more likely

to believe that a white survivor’s assailant is guilty than a black woman’s assailant.”);

Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence

Against Women of Color, 43 S

TAN

. L. R

. 1241, 1242 (1991) (“[T]he violence that many

women experience is often shaped by other dimensions of their identities, such as race and

class.”).

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1158 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:1146

Overall, the police response to sexual assault is plagued by the

pervasive practice of credibility discounting.

But this practice is not

confined to the policing stage of the criminal process. Even when

police substantiate a rape complaint, prosecutors pursue only a frac-

tion of the cases referred.

A prosecutor’s determination not to

charge a defendant may encompass not only his or her own personal

skepticism

but also the anticipated skepticism of a potential jury.

Prosecutorial charging in sexual assault cases, especially those

involving acquaintances,

is inexorably linked to concerns that jurors

will downgrade the accuser’s credibility.

Research on prosecutorial charging practices reveals the influ-

ence of rampant societal biases surrounding sexual assault.

Epito-

mizing this perspective, one prosecutor acknowledged that her office

“does consider jury bias when determining whether to prosecute,”

adding that “[a] lot of the cultural attitudes about sexual assault come

into play in a jury trial and are part of the consideration about

whether or not we would be able to prove it beyond a reasonable

doubt.”

This calculus draws on a stock of narratives that “incorpo-

See Tuerkheimer, supra note 34, at 27 (“In the field of law enforcement . . . wide-

ranging impulses to downgrade the credibility of rape accusers find a capacious outlet.”).

See, e.g., Cassia Spohn et al., Prosecutorial Justification for Sexual Assault Case

Rejection: Guarding the “Gateway to Justice,” 48 S

. P

ROBS

. 206, 213 (2001) (finding that

prosecutors in the jurisdiction studied rejected over forty percent of cases at the initial

screening stage, and in just over eleven percent of cases, charges were filed but later

dismissed, meaning that less than half of the cases received by the office were fully

prosecuted).

See Jennifer G. Long & Elaine Nugent-Borakove, Beyond Conviction Rates:

Measuring Success in Sexual Assault Prosecutions, S

TRATEGIES

: P

ROSECUTORS

’ N

EWSL

IOLENCE

GAINST

OMEN

(Aequitas, Washington, D.C.), Apr. 2014, at 5

(“[P]rosecutors’ determinations of the probability of conviction are easily influenced by

their own biases, misconceptions or experiences. As such, if prosecutors are not regularly

charging, investigating, preparing, and trying seemingly ‘challenging’ cases, they become

incapable of determining whether cases are or are not likely to result in a conviction.”

(emphasis in original) (citation omitted)).

For a more extended discussion of “anticipatory credibility discounting,” see

Tuerkheimer, supra note 34, at 37–41.

See Spohn et al., supra note 52, at 207–08 (“Several studies conclude that

prosecutors are less likely to file charges if the victim knew the offender. These studies

suggest that a prior relationship with the offender may raise questions about the

truthfulness of the victim’s story . . . .” (citations omitted)).

It is difficult to know the extent to which these concerns provide cover for

prosecutors themselves to engage in credibility discounting. Regardless of whether the

prosecutor’s ostensible reliance on the jury’s expected response is genuine or correct,

however, it results in systemic credibility discounting.

See Tuerkheimer, supra note 34, at 37–41 (describing how “credibility discounting”

influences the exercise of prosecutorial discretion).

See Sofia Resnick, Why Do D.C. Prosecutors Decline Cases So Frequently? Rape

Survivors Seek Answers, R

EWIRE

(Mar. 11, 2016), https://rewire.news/article/2016/03/11/d-

c-prosecutors-decline-cases-frequently-rape-survivors-seek-answers (recounting

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rate[] stereotypes of real crimes and credible victims.”

Framed by an

inquiry into how the archetypical juror would assess the complainant’s

account, prosecutorial decisionmaking transposes the popular accept-

ance of rape myths into a rationale for declining to pursue charges.

Given the systemic discounting of complainant credibility at

every stage of the criminal process, it should come as no surprise that

most survivors do not report their abuse to the police.

Indeed, the

underreporting phenomenon is as understandable as it is massive.

Unless and until the criminal justice system—including the mecha-

nisms for invoking it

—recalibrates, survivors will continue to be

drawn to alternate outlets for reporting sexual assault.

B. College Campus

Women in their late teens and early twenties are especially vul-

nerable to sexual violation.

Within this age bracket, although

females who are not students experience even higher rates of victimi-

zation than their student counterparts,

the incidence of sexual

assault on campus is alarming.

As is true generally, offenders known

impressions on the part of survivors that prosecutors “seemed to disbelieve their stories or

blame them for the alleged assault,” along with a concern that prosecutors were not

“carefully scrutiniz[ing]” the available evidence in their cases); see also Long & Nugent-

Borakove, supra note 53, at 5 (warning prosecutors that “the challenge of sexual assault

cases may appear, to the inexperienced eye, to be unsurmountable, thus creating a self-

perpetuating cycle and a low number of cases being taken forward”).

Spohn et al., supra note 52, at 208; see also Lisa Frohmann, Convictability and

Discordant Locales: Reproducing Race, Class, and Gender Ideologies in Prosecutorial

Decisionmaking, 31 L. & S

’

. 531, 537 (1997) (arguing that the prosecutorial

categorization of jurors “reveals how prosecutors maintain and reproduce cultural

stereotypes about race, class, and gender through their decisionmaking practices”).

Relying on an ethnographic study of prosecutorial decisionmaking, Frohmann explains,

“prosecutors orient particularly toward ‘the jury,’ an ideal type formed from a composite

of their previous trial experience, discussions with other prosecutors, and prosecutors’

general cultural knowledge about the norms and mores around sexuality, heterosexual

relations, and violence,” and then decide whether a credible narrative can be told. Id. at

535–36.

See supra notes 34–35 and accompanying text.

See infra Section III.A.

See supra note 25 (citing data on rape and sexual assault victimizations).

See S

INOZICH

& L

ANGTON

, supra note 25, at 4 (finding that women aged eighteen to

twenty-four who were not college students were 1.2 times more likely to be sexually

assaulted than women in the same age bracket who attended college and that non-students

experienced approximately twice the number of sexual assaults as their student

counterparts).

Studies of sexual assault on college campuses indicate that 10.8% of female

undergraduates have experienced sexual penetration by force or incapacitation. D

AVID

ANTOR ET AL

., W

ESTAT

, R

EPORT ON THE

AAU C

AMPUS

LIMATE

URVEY ON

EXUAL

SSAULT AND

EXUAL

ISCONDUCT

14 (2015), https://www.aau.edu/sites/default/files/

%40%20Files/Climate%20Survey/AAU_Campus_Climate_Survey_12_14_15.pdf. Surveys

that rely on a broader definition of sexual assault that includes forced kissing and fondling

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1160 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:1146

to the victim (as a friend, acquaintance, or intimate partner) commit

the vast majority of campus sexual assault.

Underreporting is a significant problem on college campuses.

According to the Bureau of Justice Statistics’ National Crime

Victimization Survey (NCVS), for the period 1995 to 2013, only one in

five undergraduate women who experienced rape or sexual assault

contacted the police.

The National College Women Sexual

Victimization Study (NCWSVS), a more focused inquiry into why col-

lege sexual assault survivors rarely report through official channels,

found that fewer than five percent of completed and attempted rapes

were reported to the police, and fewer still to campus authorities.

Among the key findings of the NCWSVS was that college stu-

dents opted to bypass official channels when they perceived it as

unlikely that the complaint would be credited.

According to

researchers, “incidents were more likely to be reported to the police

have proven controversial. See Jake New, One in Five?, I

NSIDE

IGHER

(Dec. 15,

2014), https://www.insidehighered.com/news/2014/12/15/critics-advocates-doubt-oft-cited-

campus-sexual-assault-statistic (describing criticism of the National Institute of Justice’s

2007 Campus Sexual Assault Study for its “broad definition of sexual assault” and that

“[s]ome argue that an unwanted kiss should not be conflated with other kinds of more

severe sexual assault or rape”). Applying this more expansive definition, one in five college

women report having been sexually assaulted. See C

HRISTOPHER

REBS ET AL

., B

UREAU

USTICE

TATISTICS

, U.S. D

’

T OF

USTICE

, C

AMPUS

LIMATE

URVEY

ALIDATION

TUDY

: F

INAL

ECHNICAL

EPORT

73–74 (2016), http://www.bjs.gov/content/pub/pdf/

ccsvsftr.pdf (reporting that, among 23,000 undergraduates surveyed, 21% of female

students said that they had been sexually assaulted while in college, while 7% of male

students said the same). Even under a narrower definition of sexual assault, this number

seems to hold. See NISVS, supra note 8, at 1 (finding that one in five women in the United

States had experienced either rape or attempted rape).

See S

INOZICH

& L

ANGTON

, supra note 25, at 7 (“College-age female victims knew

their offender in about 80% of rape and sexual assault victimizations, regardless of their

enrollment status.”).

Early studies identified this same problem. See, e.g., B

ONNIE

S. F

ISHER ET AL

., U.S.

’

T OF

USTICE

, T

EXUAL

ICTIMIZATION OF

OLLEGE

OMEN

24 exhibit 12 (2000)

(reporting that fewer than five percent of sexual assaults were reported to the police).

INOZICH

& L

ANGTON

, supra note 25, at 1. The NCVS definition of rape and sexual

assault includes threatened, attempted, and completed rape and sexual assault but does not

specifically mention incidents in which the victim was “unable to provide consent due to

drug or alcohol use . . . or coerced to engage in sexual contact.” Id. at 2. The NCVS does

not collect information about whether victims reported to campus administrators. Id. at 9.

The NCWSVS relied on a national survey administered in the spring of 1997 to 4446

female college students enrolled at 233 postsecondary institutions. Bonnie S. Fisher et al.,

Reporting Sexual Victimization to the Police and Others: Results from a National-Level

Study of College Women, 30 C

RIM

. J

UST

. & B

EHAV

. 6, 17 (2003).

Id. at 31 (“[W]omen in our sample also were reluctant to involve campus authorities.

These authorities were notified in only 2.8% of all incidents of victimization and in 3.2% of

all rapes.”).

See Tuerkheimer, supra note 34, at 28 (observing that sexual assault victims often

“preempt the deployment of credibility discounts” by declining to report through official

channels).

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when they had characteristics that made them more ‘believable’ (e.g.,

presence of a weapon or assailant who was a stranger).”

Given wide-

spread tendencies to blame victims for sexual assault,

it is unsur-

prising that alcohol or drug involvement resulted in a “unique effect,”

making students “more likely to disclose their victimization to friends,

but not to campus authorities.”

Students resorted to unofficial chan-

nels because they perceived that “proof beyond their testimony was

needed to secure police action, that they would not be protected if

they disclosed their assailants’ identities, and that a sexual victimiza-

tion was something sufficiently embarrassing or shameful that it

should even be kept from their families.”

In recent years, the treatment of sexual assault on college cam-

puses has shifted dramatically. In 2011, the Obama Administration

signaled a willingness to more aggressively enforce the dictates of

Title IX.

New federal interventions,

coupled with notable successes

on the part of campus sexual assault activists,

underscored universi-

ties’ obligation to provide educational environments that do not dis-

Fisher et al., supra note 68, at 6.

See Amy Grubb & Emily Turner, Attribution of Blame in Rape Cases: A Review of

the Impact of Rape Myth Acceptance, Gender Role Conformity and Substance Use on

Victim Blaming, 17 A

GGRESSION

& V

IOLENT

EHAV

. 443, 446–49 (2012) (discussing the

effect of gender roles and drug and alcohol use on perceptions of sexual assault victims);

Eliana Suarez & Tahany M. Gadalla, Stop Blaming the Victim: A Meta-Analysis

on Rape Myths, 25 J. I

NTERPERSONAL

IOLENCE

2010, 2025–26 (2010) (summarizing traits

and identities that have a positive relationship with belief in rape myths).

Fisher et al., supra note 68, at 6; see also infra note 301 (noting that university

policies related to substance use can provide a disincentive to reporting misconduct).

Fisher et al., supra note 68, at 32; see also C

HRISTOPHER

P. K

REBS ET AL

., N

’

NST

USTICE

, T

AMPUS

EXUAL

SSAULT

(CSA) S

TUDY

, at xvii (2007), https://

www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf (finding that the most common reasons given

by victims for not reporting to law enforcement were “they did not think it was serious

enough to report,” “it was unclear that a crime was committed or that harm was intended,”

and “they did not want anyone to know about the incident”).

See Letter from Russlynn Ali, Assistant Sec’y for Civil Rights, U.S. Dep’t of Educ.,

Office for Civil Rights, Dear Colleague Letter (Apr. 4, 2011), http://www2.ed.gov/about/

offices/list/ocr/letters/colleague-201104.pdf (informing schools of their obligations under

Title IX).

For a synopsis of these efforts and their impact, see Michelle J. Anderson, Campus

Sexual Assault Adjudication and Resistance to Reform, 125 Y

ALE

L.J. 1940, 1973–78 (2016),

which provides an overview of actions taken by the Department of Education’s Office for

Civil Rights to enforce Title IX, and Karen M. Tani, An Administrative Right to Be Free

from Sexual Violence? Title IX Enforcement in Historical and Institutional Perspective, 66

UKE

L.J. 1847, 1871–78 (2017), which discusses the Title IX enforcement efforts of the

Obama Administration.

See Richard P ´erez-Pe ˜na, College Groups Connect to Fight Sexual Assault, N.Y.

IMES

(Mar. 19, 2013), https://www.nytimes.com/2013/03/20/education/activists-at-colleges-

network-to-fight-sexual-assault.html (describing the successes of informal networks of

college student activists in drawing attention to universities’ handling of sexual assault

complaints).

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1162 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:1146

criminate against female students.

This mandate, which exists

entirely apart from the criminal justice system,

requires administra-

tors to respond to sexual misconduct.

Even as federal enforcement

of Title IX has become considerably less robust under President

Trump,

college sexual assault survivors must still be given the option

of reporting to campus disciplinary authorities.

Yet students remain exceedingly reluctant to invoke their col-

leges’ formal reporting channels.

According to the most recent data

from the Association of American Universities, just over a quarter of

victims of physically forced penetration reported the incident.

Stu-

dents were even less likely to report incidents of penetration during

incapacitation (13.3%) and incidents of forced sexual contact

(7.0%).

Among the most common reasons for not contacting desig-

nated administrators were that the incident was not considered

“serious enough,”

that the survivor was “embarrassed, ashamed or

See supra note 19 (discussing universities’ Title IX obligations).

See supra notes 19, 21 and accompanying text.

See supra note 19 (explaining that sexual misconduct in educational settings can

constitute sex discrimination under Title IX).

See Erica L. Green, Sex Assault Rules Under DeVos Bolster Defendants’ Rights and

Ease College Liability, N.Y. T

IMES

(Nov. 16, 2018), https://www.nytimes.com/2018/11/16/

us/politics/betsy-devos-title-ix.html (describing proposed Title IX regulations under the

Trump Administration and their departure from previous guidance). Even under the

Obama Administration, the success of federal Title IX enforcement efforts was limited. See

Jonah Newman & Libby Sander, Promise Unfulfilled?, C

HRON

. H

IGHER

DUC

. (Apr. 30,

2014), https://www.chronicle.com/article/Promise-Unfulfilled-/146299 (“[F]ewer than one

in 10 [Title IX complaints] led to a formal agreement between federal and college officials

to change campus policies.”).

See Nondiscrimination on the Basis of Sex in Educational Programs or Activities

Receiving Federal Financial Assistance, 83 Fed. Reg. 61,462, 61,472–73 (proposed Nov. 29,

2018).

College reporting procedures vary. For a distillation of best practices, see Reporting

Violence, K

NOW

OUR

IX, https://www.knowyourix.org/?school-reporting=reporting-

violence (last visited Mar. 29, 2019). For examples of how schools discourage reporting, see

Letter from Fatima Gross Graves, President & CEO, Nat’l Women’s Law Ctr., to Betsy

DeVos, Sec’y of Educ. 2–4 (July 11, 2017), https://nwlc.org/wp-content/uploads/2017/07/

Letter-to-DeVos-on-Title-IX-Sexual-Violence.pdf.

ANTOR ET AL

., supra note 64, at 110 tbl.6-1.

Id. The Campus Climate Survey employed an expansive list of reporting agencies

that included “agencies concerned with prosecuting offenders (e.g., the Title IX office;

campus or local police) to those concerned with assisting the victim with the consequences

of the incident (e.g., health care providers; victim services).” Id. at 35. “Students were

asked if they reported the victimization to any of these places.” Id.

Fisher et al., supra note 68, at 33. This is consistent with earlier research. See K

REBS

ET AL

., supra note 74, at xvii (reporting findings from CSA Study). Regarding how to

interpret these findings, one researcher has noted that “a salient research issue is what

students mean when they define incidents as not serious enough to report.” Fisher et al.,

supra note 68, at 33. These responses may be explained by “a false consciousness expressed

by women acculturated to see their victimization as somehow acceptable,” or,

alternatively, “a rational assessment in which female victims decide that reporting coerced

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November 2019] BEYOND #METOO 1163

[felt] that it would be too emotionally difficult,” and that the survivor

“did not think anything would be done” about the incident.

Given

the unlikelihood that a school’s Title IX procedures will result in the

imposition of serious sanctions,

most survivors conclude that the

benefits of reporting to campus officials are outweighed by the costs.

This does not mean that survivors stay silent about their abuse.

Rather, sexual misconduct on campus—like sexual assault in general

and sexual harassment in the workplace—is typically disclosed

through informal channels.

Unless alternative modes of reporting

are introduced on campus,

student victims of sexual misconduct will

continue to reject what college disciplinary officials have on offer,

leaving unfulfilled Title IX’s promise of a nondiscriminatory

education.

C. Workplace

Sexual harassment in the workplace is commonplace.

Most

recently, a national study of a thousand men and a thousand women

asked about harassment and assault in multiple settings.

More than a

sexuality is not worth turning in fellow students when such an act may incur negative

reactions from their peers and no real action from the criminal justice system.” Id.

ANTOR ET AL

., supra note 64, at 36.

See Kristen Lombardi, A Lack of Consequences for Sexual Assault, C

FOR

NTEGRITY

(Feb. 24, 2010), https://www.publicintegrity.org/2010/02/24/4360/lack-

consequences-sexual-assault (finding that the vast majority of disciplinary measures

imposed by schools were “minor sanctions” such as “reprimands, counseling, suspensions

. . . community service . . . orders that perpetrators write a letter or apology, or make a

presentation to a campus advocacy group, or write a research paper on sexual violence”).

See id. (“For [survivors], the trauma of assault can be compounded by a lack of

institutional support, and even disciplinary action. Many times, victims drop out of school,

while their alleged attackers graduate.”). For one detailed account of institutional failure,

see Joseph Shapiro, College Justice Falls Short for Rape Victim, NPR (Feb. 26, 2010, 12:49

PM), https://www.npr.org/templates/story/story.php?storyId=124111931.

See infra Section II.B (providing a taxonomy of unofficial reporting channels).

See infra Section III.B.

According to the EEOC, “[u]nwelcome sexual advances, requests for sexual favors,

and other verbal or physical conduct of a sexual nature constitute sexual harassment when

this conduct . . . creates an intimidating, hostile, or offensive work environment.” Facts

About Sexual Harassment, U.S. E

QUAL

’

PPORTUNITY

OMM

’

, https://

www.eeoc.gov/eeoc/publications/fs-sex.cfm (last visited Feb. 22, 2019). For a proposed

reframing that centers “workplace sexism, not sexuality or sexual desire,” see Vicki

Schultz, Reconceptualizing Sexual Harassment, Again, 128 Y

ALE

L.J. F. 22, 24 (2018),

which recasts and updates earlier seminal works.

TOP

TREET

ARASSMENT

, T

ACTS

EHIND THE

OVEMENT

: A

ATIONAL

TUDY ON

EXUAL

ARASSMENT AND

SSAULT

7 (2018), http://

www.stopstreetharassment.org/wp-content/uploads/2018/01/Full-Report-2018-National-

Study-on-Sexual-Harassment-and-Assault.pdf (finding that eighty-one percent of women

had experienced some form of sexual harassment or assault over the course of their

lifetime). The report is based on a nationally representative survey of approximately one

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1164 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:1146

third of the women respondents reported having been sexually

harassed on the job.

Qualitative accounts, particularly those

emerging in the wake of #MeToo, suggest that women who work in

predominantly male industries or with a largely male clientele experi-

ence sexual harassment at especially high rates.

The most exhaustive contemporary overview of workplace har-

assment comes from the U.S. Equal Employment Opportunity

Commission’s Select Task Force on the Study of Harassment in the

Workplace.

According to the Task Force, the reported incidence of

workplace sexual harassment of women varies from twenty-five to

eighty-five percent, depending on the questions posed and the sam-

pling method.

When researchers asked randomly selected women

whether they had experienced one or more “specific sexually-based

behaviors, such as unwanted sexual attention or coercion,” the rate of

reported harassment was forty percent.

The Task Force was careful to note that workplace harassment is

intersectional, meaning that people can “experience harassment on

thousand women and one thousand men, ages eighteen and up, conducted online in early

2018. Id.

Id. at 21 (reporting that thirty-eight percent of women experienced workplace

harassment; the analogous figure for men is thirteen percent). The survey defined sexual

harassment to include verbal and cyber, as well as physically aggressive, sexual harassment.

Id. at 6. “Forced sex acts” were excluded from the definition. Id. LGBT people may

experience harassment at even higher rates. See H

UMAN

IGHTS

AMPAIGN

OUND

EGREES OF

QUALITY

: A N

ATIONAL

TUDY

XAMINING

ORKPLACE

LIMATE FOR

LGBT E

MPLOYEES

21 (2009) (reporting that fifty-eight percent of LGBT respondents in a

national survey had heard jokes or derogatory comments made about LGBT people at

work).

See supra note 6 and accompanying text (listing industries and institutions implicated

by #MeToo era misconduct allegations); Stefanie K. Johnson et al., Why We Fail to Report

Sexual Harassment, H

ARV

. B

. R

. (Oct. 4, 2016), https://hbr.org/2016/10/why-we-fail-

to-report-sexual-harassment (in a qualitative study of thirty-one women in predominantly

male industries, seventy-five percent of respondents reported having been sexually

harassed at work).

HAI

R. F

ELDBLUM

& V

ICTORIA

A. L

IPNIC

, U.S. E

QUAL

’

PPORTUNITY

OMM

’

, S

ELECT

ASK

ORCE ON THE

TUDY OF

ARASSMENT IN THE

ORKPLACE

(2016) [hereinafter EEOC T

ASK

ORCE

EPORT

], https://www.eeoc.gov/eeoc/task_force/

harassment/report.cfm. In June 2018, the EEOC reconvened the Select Task Force. See

Alexandra Yoon-Hendricks, Spurred by #MeToo, a Harassment Task Force Reconvenes,

N.Y. T

IMES

(June 18, 2018), https://www.nytimes.com/2018/06/12/us/politics/eeoc-

harassment-task-force.html.

EEOC T

ASK

ORCE

EPORT

, supra note 96, at 8–9.

Id. When the measure of harassment includes not only unwanted sexual attention or

coercion, but also “sexist or crude/offensive behavior,” almost sixty percent of women

report having experienced harassment. Id. at 9; see also id. at 10–11 (discussing, relatedly,

gender identity-based and sexual orientation-based harassment).

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November 2019] BEYOND #METOO 1165

the basis of more than one identity group.”

Although research in

this area is relatively sparse, one study of these intersectional

dynamics found that women of color were more likely to experience

higher rates of harassment than either white women or men of

color.

100

Notwithstanding the ubiquity of sexual harassment, it rarely trig-

gers established mechanisms of workplace accountability. Indeed, as

with other forms of sexual violation, victims are loath to invoke

formal processes. As the Task Force summarized, “the extent of non-

reporting is striking.”

101

Women who are sexually harassed exhibit a

range of responses that include avoiding the harasser, confronting the

harasser, denying or downplaying the seriousness of the situation, and

attempting to “ignore, forget or endure” the behavior.

102

The most

frequent response is to discuss the problem with family members,

friends, and trusted colleagues.

103

The least common response is to pursue established complaint

channels.

104

In two studies, more than two-thirds of workplace harass-

ment victims opted not even to speak about it with a supervisor, man-

ager, or union representative.

105

Even more rarely do victims lodge

formal complaints.

106

According to the Task Force, “on average, any-

where from 87% to 94% of individuals did not file a formal com-

plaint.”

107

The study explained that employees may choose not to

report harassment because they fear “disbelief of their claim; inaction

Id. at 13 (“There is increasing evidence that targets of harassment often experience

mistreatment in multiple forms, such as because of one’s race and gender, or ethnicity and

religion.”).

100

Id. at 14 (citing Jana L. Raver & Lisa H. Nishii, Once, Twice, or Three Times as

Harmful? Ethnic Harassment, Gender Harassment, and Generalized Workplace

Harassment, 95 J. A

PPLIED

SYCHOL

. 236, 240–49 (2010)).

101

EEOC T

ASK

ORCE

EPORT

, supra note 96, at 15. “Non-reporting” in this context

means not reporting through formal workplace complaint channels. For a sample

complaint procedure, see Society for Human Resource Management (SHRM), Anti-

Harassment and Complaint Procedure, https://www.shrm.org/resourcesandtools/tools-and-

samples/policies/pages/cms_000534.aspx (last visited Aug. 2, 2019).

102

Id.

103

Id. at 16.

104

Id. Moreover, reporting rates appear to vary depending on the type of harassment at

issue. Id. In one study, thirty percent of women who experienced “sexually coercive

behavior” reported it through formal channels, while “gender-harassing conduct was

almost never reported.” Id.

105

Id.

106

Women of color may be especially mistrustful of employer complaint processes. See

Tanya Kater´ı Hern ´andez, A Critical Race Feminism Empirical Research Project: Sexual

Harassment and the Internal Complaints Black Box, 39 U.C. D

AVIS

L. R

. 1235, 1262

(2006) (noting survey results in which women of color put forth various reasons why they

distrusted internal complaints processes).

107

EEOC T

ASK

ORCE

EPORT

, supra note 96, at 16.

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1166 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:1146

on their claim; receipt of blame for causing the offending actions;

social retaliation (including humiliation and ostracism); and profes-

sional retaliation, such as damage to their career and reputation.”

108

These concerns are warranted. Employees who complain about

their harassment do often face retaliation, indifference, and hos-

tility.

109

Given the very real prospect of negative consequences, both

professional and personal, it is understandable that most women

decide not to report through official channels.

110

As one expert on

occupational health summarized, “It is actually unreasonable for

employees to report harassment to their companies because minimiza-

tion and retaliation were together about as common as remedies [or

helpful responses by employers] and created further damage to people

who had already been harassed.”

111

Because official procedures for addressing workplace sexual har-

assment complaints have largely failed women, women routinely

resort to informal methods of disseminating information about their

abuse. While enabling the harasser to abuse with impunity and leaving

intact the power structures that perpetuate workplace inequality,

112

informal pathways nevertheless present as more attractive than estab-

lished complaint channels. This will remain the case unless and until

alternative reporting options are made available in the workplace.

113

* * *

Across institutional settings—from the criminal justice system, to

college campuses, to the workplace—the law of sexual misconduct is

108

Id.

109

Id. at 16–17 (noting studies showing the high incidence of these negative

consequences). Doctrinal requirements make it exceedingly difficult for employees to

prevail on a Title VII retaliation claim. See, e.g., Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570

U.S. 338, 362 (2013) (requiring proof of “but for” causation, not simply that retaliation was

a “motivating factor” in the employer’s decision); see also Nicole Buonocore Porter,

Ending Harassment by Starting with Retaliation, 71 S

TAN

. L. R

. O

NLINE

49, 50 (2018)

(arguing that high barriers to proving retaliation contribute to the problem of harassment).

110

In general, those most likely to be harassed may be the least likely to report. EEOC

ASK

ORCE

EPORT

, supra note 96, at 28 (explaining that power disparities in many

workplaces can create opportunities for “high-status workers” to exploit “low-status”

workers, who may be unaware of how to report harassment or more vulnerable to

retaliation for reporting harassment).

111

Id. at 17 n.68 (“[B]ecause remediating the situation did not make the person

whole . . . and helpful vs. hurtful responses were each found about 50% of the time,

reporting is a gamble that is not worth taking in terms of individual well-being.”).

112

See infra notes 370–71 and accompanying text.

113

See infra Section III.C (describing how official workplace reporting procedures

might be improved).

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November 2019] BEYOND #METOO 1167

seldom invoked.

114

In its stead, unofficial communications channels

have become the default conduits for allegations of abuse.

ORKINGS OF

NOFFICIAL

CCUSATION

Women have long chosen to share their accounts of sexual abuse

with one another rather than report through formal legal channels.

115

The “whisper networks” that have emerged alongside largely forsaken

formal outlets are often tapped into anonymously or hidden from

view altogether.

116

But neither the secrecy of a network’s very exis-

tence nor the content of information exchanged are inevitable fea-

tures of unofficial reporting channels.

The #MeToo era has revealed these whisper networks to out-

siders for the first time.

117

The movement has also induced the crea-

tion of new types of informal reporting channels that are conceptually

distinct from whisper networks. These channels amplify accusations of

abuse by reaching wider communities and aiming for more conse-

quential ends, often with the help of modern technology.

118

As new

reporting pathways emerge, unofficial reporting has become a force to

reckon with.

114

See supra note 23 and accompanying text (noting the larger problem of under-

enforcement).

115

Informal reporting of sexual misconduct can be a form of consciousness-raising. See

infra notes 161–63 and accompanying text; see also Katharine T. Bartlett, Feminist Legal

Methods, 103 H

ARV

. L. R

. 829, 863–64 (1990) (“Consciousness-raising is an interactive

and collaborative process of articulating one’s experiences and making meaning of them

with others who also articulate their experiences.”). On the centrality of the practice to

feminism, see Catherine A. MacKinnon, Feminism, Marxism, Method, and the State: An

Agenda for Theory, 7 S

IGNS

515, 519 (1982), which explains that “[c]onsciousness raising is

the major technique of analysis, structure of organization, method of practice, and theory

of social change of the women’s movement.” For historical context, see C

AROL

YMOWITZ

& M

ICHAELE

EISSMAN

, A H

ISTORY OF

OMEN IN

MERICA

351–55 (1978), which

documents the rise of consciousness-raising groups in the late 1960s and early 1970s.

116

I am using “network” to describe a group of interconnected people who disseminate

information, receive information, or both.

117

See Summer Meza, What Is a Whisper Network? How Women Are Taking Down

Bad Men in the #MeToo Age, N

EWSWEEK

(Nov. 22, 2017), https://www.newsweek.com/

what-whisper-network-sexual-misconduct-allegations-719009 (“This is the year the whisper

network went viral, with women sharing their allegations and experiences in forums,

spreadsheets, private groups and all over social media.”).

118

See generally Elizabeth Dwoskin & Jena McGregor, Sexual Harassment Inc: How the

#MeToo Movement Is Sparking a Wave of Start-ups, W

ASH

. P

OST

(Jan. 5, 2018), https://

www.washingtonpost.com/news/on-leadership/wp/2018/01/05/sexual-harassment-inc-how-

the-metoo-movement-is-sparking-a-wave-of-startups (noting the proliferation of new start-

ups designing apps to “disrupt” sexual harassment in the contemporary workplace).

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1168 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:1146

A. Unofficial Reporting Channels: A Taxonomy

Unofficial channels for reporting sexual misconduct can best be

categorized along two key dimensions.

119

One is whether the accuser

is anonymous (or not); the other is whether access to the channel is

restricted (or open to the public).

120

I depict the resulting classifica-

tion as follows:

Accuser

Anonymous Named

Restricted Double Secret Whisper Traditional Whisper

Access Network Network

Channel

Shadow Court of Public New Court of Public

Open Access

Opinion Opinion

To understand the evolution of unofficial reporting channels in

the #MeToo era, we begin with the Traditional Whisper Network.

1. Traditional Whisper Network

Whisper networks allow women to share their accounts of sexual

violation with select insiders, while outsiders remain unaware of the

content of the information and often the existence of the network

itself.

121

In contrast to the Double Secret Whisper Network, which

allows for anonymous reports,

122

the Traditional Whisper Network

119

I first proposed this taxonomy of unofficial channels for reporting in Deborah

Tuerkheimer, Unofficial Reporting in the #MeToo Era, 2019 U. C

. L

EGAL

(forthcoming 2019) (manuscript at 16) [hereinafter Tuerkheimer, Unofficial Reporting].

Section II.A of this Article recapitulates the analysis of that earlier work.

120

An additional variable is whether the accused is named. For the most part, unofficial

reporting channels allow participants to identify the accused by name. The notable

exception—a #MeToo era channel that expressly prohibits women from naming the

accused—is a publicly available spreadsheet that collects accounts of sexual misconduct in

academia (sometimes referred to as the Academic Men List). See Karen Kelsky, When Will

We Stop Elevating Predators?, C

HRON

. H

IGHER

DUC

. (Jan. 1, 2018), https://

www.chronicle.com/article/The-Professor-Is-In-When-Will/242110 (explaining that the

survey’s creator removes names of the accused as soon as they appear in order to avoid

possible legal liability).

121

In their classic formulation, whisper networks allow women to “share secret

warnings via word of mouth.” Jenna Wortham, We Were Left Out, N.Y. T

IMES

. (Dec.

13, 2017), https://www.nytimes.com/interactive/2017/12/13/magazine/the-reckoning-women-

and-power-in-the-workplace.html. Whisper networks can of course be leaky.

122

See infra Section II.A.2.

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November 2019] BEYOND #METOO 1169

transmits the allegations of known accusers.

123

In its classic formula-

tion, this entails face-to-face exchange.

124

The in-person sharing of allegations still occurs in many profes-

sional and educational settings.

125

But the spread of technology has

allowed Traditional Whisper Networks to flourish even in the absence

of face-to-face encounters, as information can be disseminated rapidly

across workplaces and large college populations. For example,

invitation-only Facebook groups

126

allow women to share their

accounts across a geographic divide while keeping their stories within

a private virtual space.

2. Double Secret Whisper Network

The Double Secret Whisper Network relies on technology to

spread anonymous allegations within a closed network. The Media

Men List, for instance, was created so that women in media could not

123

Especially in larger groups of insiders, information may be passed along a chain of

network members—in essence, generating hearsay. At some point, if an accusation

becomes sufficiently attenuated from the original source, it might be considered “rumor”

or “gossip.” See Anne Helen Petersen, Here’s Why So Many Women Knew the Rumors

About Harvey Weinstein

UZZ

EED

(Oct. 8, 2017, 8:12 PM), https://

www.buzzfeednews.com/article/annehelenpetersen/women-believe-other-women (“[T]he

gossip percolating around [Harvey Weinstein] became another form of knowledge, of

currency in the economy of how women protect ourselves and others. . . . For women, that

knowledge, obtained via gossip or whisper networks, isn’t frivolous or titillating. It is a

means of survival.”). Indeed, even if the information received from whisper networks is

understood as gossip, insiders tend to perceive it as useful. See Jia Tolentino, The Whisper

Network After Harvey Weinstein and “Shitty Media Men,” N

ORKER

(Oct. 14, 2017),

https://www.newyorker.com/news/news-desk/the-whisper-network-after-harvey-weinstein-

and-shitty-media-men (“Over time, in my experience, the whisper network always proves

reasonably accurate: firings and settlements and investigations accrue to the names you’ve

been hearing in different anecdotes for years.”).

124

One commentator described the information provided as including such tips as

“don’t be alone with X”; “In case nobody has mentioned it, Y has raped women”; and “I’d

call Z a creep, but I don’t think he’s dangerous in the way W is.” Alex Press, It’s Time to

Weaponize the “Whisper Network,” V

(Oct. 17, 2017), https://www.vox.com/first-person/

2017/10/16/16482800/harvey-weinstein-sexual-harassment-workplace (describing these as

“the kinds of warnings whispered in private among women in work spaces”).

125

For one account, see Tolentino, supra note 123. “[S]hortly after I moved to the city, I

was introduced to the whisper network . . . for New York media. I had encountered these

networks before, in college and grad school and in the Peace Corps.” Id.

126

See Julie Creswell & Tiffany Hsu, Women’s Whisper Network Raises Its Voice, N.Y.

IMES

(Nov. 4, 2017), https://www.nytimes.com/2017/11/04/business/sexual-harassment-

whisper-network.html (noting that through invitation-only Facebook groups, among other

technologies, “women—and some men—are seeking catharsis and validation by sharing

their stories”); Tyler Kingkade, Why Female Comedians Have a Secret World of Facebook

Groups, H

UFF

OST

(Aug. 31, 2016), https://www.huffpost.com/entry/women-in-comedy-

facebook-groups_n_57c5e82be4b078581f0fe6ba (describing invitation-only Facebook

groups for women in stand-up comedy); see also Press, supra note 124 (mentioning email

and Twitter Direct Messages as conduits for allegations).

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only keep the content of the shared information secret from network

outsiders, but also shield the identity of the reporter from network

insiders.

127

Sorority women at Yale University have used Google Docs

in similar fashion.

128

Galvanized by the #MeToo movement, a wave of startups is

designing apps to assist with the anonymous distribution of sexual

misconduct allegations on campus and in the workplace.

129

For

instance, Blind enables employees at more than one hundred compa-

nies, including Amazon and Facebook, to chat anonymously about

workplace issues including sexual harassment and assault.

130

127

See Moira Donegan, I Started the Media Men List, T

(Jan. 10, 2018), https://

www.thecut.com/2018/01/moira-donegan-i-started-the-media-men-list.html (describing

Donegan’s creation of a Google spreadsheet called Shitty Media Men in October 2017).

The controversial Media Men List was widely covered by the mainstream press, see, e.g.,

Jaclyn Peiser, How a Crowdsourced List Set Off Months of #MeToo Debate, N.Y. T

IMES

(Feb. 3, 2018), https://www.nytimes.com/2018/02/03/business/media/media-men-list.html,

and even led to a lawsuit filed by one of the accused men. See infra note 244 (describing

the defamation complaint recently filed against Donegan by an individual accused on the

list).

128

See Abby Jackson, Women at Yale Say They Developed a Secret Way to Protect

Themselves from Dangerous Men Because the School Keeps Failing Them, B

. I

NSIDER

(Jan. 23, 2018), https://finance.yahoo.com/news/women-yale-developed-secret-way-

170253829.html (describing a system that uses “anonymous Google forms to compile the

names of men who women say are dangerous, and then prohibit them from attending

certain social events”). Similar electronic networks have arisen in other contexts. See

Cecilia D’Anastasio, As Spreadsheet of Accused Abusers Spreads, Anime Conventions Get

Their MeToo Movement, K

OTAKU

(Jan. 18, 2019), https://kotaku.com/as-spreadsheet-of-

accused-abusers-spreads-anime-conven-1831879237 (“A spreadsheet containing the names

of alleged abusers and harassers who attend U.S. anime conventions is making its way

around social media as part of a small #MeToo movement in the niche community.”); Chris

Quintana, Anonymous Website Aims to Out Sexual Assaulters at U. of Washington,

HRON

. H

IGHER

DUC

. (Oct. 9, 2018), https://www.chronicle.com/article/Anonymous-

Website-Aims-to-Out/244755 (describing “Make Them Scared” as a “wiki dedicated to

exposing the names of sexual harassers/attackers created in the University of Washington

Seattle area”).

129

See Dwoskin & McGregor, supra note 118 (discussing “a wave of businesses

emerging in the wake of widespread revelations of sexual misconduct in workplaces” and

observing that “[t]he startups, many of which have female founders or co-founders, want to

disrupt a costly and persistent problem”); Kari Paul, New Apps Help Victims of Sexual

Assault and Harassment File Anonymous Reports, M

ARKET

ATCH

(June 5, 2018, 1:27

PM), https://www.marketwatch.com/story/post-weinstein-new-apps-aim-to-out-predators-

before-they-become-serial-abusers-2018-01-24 (“Against the #MeToo movement

backdrop, a new crop of apps and secure social networks are emerging to help victims

report and address sexual harassment and assault. They aim to put the power in women’s

hands—and on their phones.”).

130

See Sarah Buhr, Uber Employees Are Chatting with Each Other About Uber’s

Leadership on Anonymous Workplace App Blind, T

ECH

RUNCH

(Feb. 25, 2017), https://

techcrunch.com/2017/02/25/ubersecret (“[Blind] works by only allowing those within the

same company to chat anonymously with each other. . . . There is also a portion of the app

called the Tech Lounge where anyone verified to use the app for their workplace can

commiserate with other tech workers from other companies.”).

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A variation of the Double Secret Whisper Network—one created

as an information escrow

131

—narrows the intended audience of an

anonymous report to victims of the same perpetrator.

132

Rather than

disseminate their accounts to other likely targets (that is, to all desig-

nated group members), users share their information even more selec-

tively (that is, exclusively with survivors of an in-common

perpetrator).

133

3. Shadow Court of Public Opinion

Open access avenues for reporting abuse are an alternative to the

network model. When allegations are made anonymously in publicly

available channels, they fall into the murky Shadow Court of Public

Opinion. Anyone can access these forums—far-flung distribution is

intended—but the accuser remains unidentified, making the informa-

tion more difficult to assess.

134

Even so, unrestricted channels for anonymously sharing accounts

of sexual misconduct are becoming widespread.

135

In public comment

threads

136

and Instagram posts,

137

unnamed women have recently

exposed alleged predators in children’s literature,

138

advertising,

139

131

See Ian Ayres & Cait Unkovic, Information Escrows, 111 M

ICH

. L. R

. 145, 188–91

(2012) (proposing the use of information escrows to mitigate a first-mover disadvantage

that surrounds the making of sexual misconduct accusations). Information escrows are

mechanisms by which harassment allegations are not forwarded until the escrow agent has

received a prespecified number of complementary allegations. Id. at 147.

132

See infra notes 316–18 and accompanying text (discussing the functioning of

Callisto).

133

See infra notes 316–18 and accompanying text.

134

See Jenny Kutner, Sexual Assault Survivors Are Outing Their Rapists on the

Anonymous Corners of the Internet, M

(Apr. 13, 2016), https://mic.com/articles/140607/

sexual-assault-survivors-are-outing-their-rapists-on-the-anonymous-corners-of-the-internet

(“These apps and sites are typically viewed as backwaters of the internet, defined by seedy

rumors and anonymous backbiting. However, many survivors of sexual assault use them to

expose their attackers, allowing victims to take control of their experiences.”).

135

See id. (“Due to the stigma associated with sexual assault and the fear of being

victim-blamed . . . many survivors feel uncomfortable coming forward with their stories.

That’s given rise to reports of rape on anonymous online forums like Yik Yak, Whisper,

College Confessions and campus-specific confessional Facebook groups.”).

136

See Cohen & Hsu, supra note 6 (noting that certain details about sexual harassment

allegations in the children’s book industry first appeared in comments to a post on

Medium).

137

See Sapna Maheshwari, Ad Agencies’ Reckoning on Sexual Harassment Comes on

Instagram, Anonymously, N.Y. T

IMES

(Mar. 7, 2018), https://www.nytimes.com/2018/03/07/

business/media/diet-madison-avenue-instagram.html (describing allegations in the

advertising industry made by Instagram account @DietMadisonAvenue); Petrarca, supra

note 6 (describing allegations in the fashion industry made by account @ShitModelMgmt).

138

See Cohen & Hsu, supra note 6.

139

See Maheshwari, supra note 137.

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1172 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:1146

and fashion.

140

While these platforms remain controversial

141

and gen-

erate questions of legal liability,

142

accusers who choose to publicly

expose their abuser without identifying themselves may do so in the

Shadow Court of Public Opinion.

4. New Court of Public Opinion

The New Court of Public Opinion features allegations against

individuals named by accusers who, unlike in the Shadow Court of

Public Opinion, are also identified. While there has long existed an

outlet for popular judgments outside the court of law, the public’s

openness to claims of sexual misconduct—and relatedly, accusers’

willingness to bring these claims forward—has cultivated a Court of

Public Opinion that is entirely new.

The #MeToo movement catapulted sexual misconduct into public

view through blockbuster reporting on the Harvey Weinstein story by

the New York Times and The New Yorker.

143

The women in those

accounts, many of whom were willing to speak on the record, came

forward after years, even decades, to unofficially report their abuse.

Since then, in catalytic fashion, many women with allegations against

high-profile men—women who, for myriad reasons, opt not to report

through formal legal channels

144

—have done the very same.

145

The

140

See Petrarca, supra note 6.

141

See, e.g., Karen McKibben, Opinion, Diet Madison Avenue Is Creating a Culture of

Fear. There’s a Better Way, A

(Mar. 5, 2018), https://adage.com/article/agency-

viewpoint/diet-madison-avenue-creating-culture-fear-better-way/312617 (relating that a

group of women in advertising released an open letter criticizing the Instagram account for

creating a culture of fear); Petrarca, supra note 6 (noting that the owner of one Instagram

account took down her “Blacklist” website because she felt it was spiraling out of control).

142

See infra notes 242–46 and accompanying text (discussing the law of defamation).

143

See supra note 1 and accompanying text.

144

After reporting unofficially, several accusers then opted to cooperate with official

investigations. See, e.g., Ronan Farrow, Behind the Scenes of Harvey Weinstein’s Arrest,

ORKER

(May 24, 2018), https://www.newyorker.com/news/news-desk/behind-the-

scenes-of-harvey-weinsteins-impending-arrest (explaining that Lucia Evans was contacted

by New York Police Department detectives the day after her allegations of sexual assault

by Harvey Weinstein were publicly reported in The New Yorker; she ultimately agreed to

cooperate with Weinstein’s prosecution); Special Prosecutor Interviewing Women Who

Accused Eric Schneiderman of Abuse, N.Y.L.J. (May 23, 2018, 7:37 PM), https://

www.law.com/newyorklawjournal/2018/05/23/special-prosecutor-interviewing-women-who-

accused-eric-schneiderman-of-abuse (describing prosecutors’ ongoing interviews with

women who first disclosed allegations of abuse by Attorney General Eric Schneiderman in

The New Yorker); see also Sandra Gonzalez & Emanuella Grinberg, ‘Surviving R. Kelly’

Spurs Follow-Up Calls from DA, Attorney for Alleged Victim’s Family Says, CNN (Jan. 9,

2019, 6:13 AM), https://www.cnn.com/2019/01/08/entertainment/r-kelly-investigation/

index.html (detailing outreach to accusers by prosecutors in Chicago and Atlanta following

the airing of a documentary that publicized multiple allegations of sexual abuse against the

singer).

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movement is at once fueled by and fueling public allegations of sexual

violation.

Women whose abusers are not the subject of intense public

interest,

146

however, cannot typically turn to the mainstream media.

147

For most accusers wishing to publicly report abuse extra-legally,

Twitter—with its hashtag usage that gave the #MeToo movement its

name—is emerging as a central repository for sexual misconduct accu-

sations.

148

Survivors without access to the mainstream media are also

using public Facebook posts and blog entries to circulate their allega-

tions in the New Court of Public Opinion.

149

145

See supra note 6 and accompanying text; see also Anderson Cooper, Mario Batali

and the Spotted Pig, CBS N

EWS

: 60 M

INS

. (May 20, 2018), https://www.cbsnews.com/news/

mario-batali-and-the-spotted-pig-nyc (noting allegations against the famous chef); Jim

DeRogatis & Marisa Carroll, “He’s a Predator”: Two More Women Speak Out About R.

Kelly’s Alleged Sexual Abuse, B

UZZ

EED

EWS

(May 4, 2018), https://

www.buzzfeednews.com/article/jimderogatis/r-kelly-sexual-abuse-allegations-lizzette-

martinez-times-up; Jane Mayer & Ronan Farrow, Four Women Accuse New York’s

Attorney General of Physical Abuse, N

ORKER

(May 7, 2018), https://

www.newyorker.com/news/news-desk/four-women-accuse-new-yorks-attorney-general-of-

physical-abuse.

146

#MeToo’s attention to allegations of sexual misconduct by prominent men has

unleashed a torrent of disclosures that generate zero public attention. About a month after

allegations against Harvey Weinstein were reported in the New York Times, Rebecca

Traister, a prominent feminist commentator, wrote, “Since the reports of Weinstein’s

malevolence began to gush, I’ve received somewhere between five and 20 emails every day

from women wanting to tell me their experiences: of being groped or leered at or rubbed

up against in their workplaces.” Rebecca Traister, Your Reckoning. And Mine., T

(Nov. 13, 2017), https://www.thecut.com/2017/11/rebecca-traister-on-the-post-weinstein-

reckoning.html.

147

Id. Even if it were an option, not all women would want their allegations of

misconduct publicly reported. See Michelle Toglia, Why Did Some Women Choose Not to

Post a “Me Too” Story? Women Share Why They Didn’t Participate in the Movement,

USTLE

(Oct. 20, 2017), https://www.bustle.com/p/why-did-some-women-choose-not-to-

post-a-me-too-story-women-share-why-they-didnt-participate-in-the-movement-2961946;

see also Laura Gianino, I Went Public with My Sexual Assault. And Then the Trolls Came

for Me., W

ASH

. P

OST

(Oct. 18, 2017), https://www.washingtonpost.com/news/

posteverything/wp/2017/10/18/i-went-public-with-my-sexual-assault-and-then-the-trolls-

came-for-me (describing the author’s experience of being attacked on and offline after she

told her story).

148

See, e.g., Alison Flood, Three Women Go Public with Sherman Alexie Sexual

Harassment Allegations, G

UARDIAN

(Mar. 7, 2018), https://www.theguardian.com/books/

2018/mar/07/three-women-go-public-with-sherman-alexie-sexual-harassment-allegations

(describing accusations that first surfaced on Twitter); Kristine Phillips, Pulitzer Prize-

Winning Author Junot Diaz Accused of Sexual Misconduct, Misogynistic Behavior, W

ASH

OST

(May 6, 2018), https://www.washingtonpost.com/news/arts-and-entertainment/wp/

2018/05/05/pulitzer-prize-winning-author-junot-diaz-accused-of-sexual-misconduct-

misogynistic-behavior (same).

149

See, e.g., Kate Thayer, Sexual Assault Survivors Are Publicly Accusing Attackers on

Social Media. But at What Cost?, C

. T

RIB

. (Dec. 14, 2018), https://www.chicagotribune.

com/lifestyles/ct-life-facebook-sex-assault-allegations-20181212-story.html (relating that a

woman used Facebook “to describe, in graphic detail, how a man she knows tried to rape

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1174 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:1146

* * *

In the #MeToo age, victims of sexual misconduct are increasingly

drawn to informal accusation. Before advocating reform that incen-

tivizes greater reliance on formal complaint mechanisms,

150

I first con-

sider the functionality of unofficial complaint channels.

B. A Functional Analysis of Unofficial Reporting

Informal reporting advances important ideals while falling short

along a number of key dimensions. These shortcomings can best be

addressed by the law of sexual misconduct, which is too rarely

invoked. To this end, I will argue for a redesign of formal complaint

channels that incorporates many of the functions of informal

reporting.

151

1. Victim Empowerment

Victims of sexual misconduct often turn to informal reporting

channels for reasons that can be grouped under the rubric of empow-

erment. Notwithstanding variations in the particulars, this is true

across all four categories of unofficial reporting: the Traditional

Whisper Network, the Double Secret Whisper Network, the Shadow

Court of Public Opinion, and the New Court of Public Opinion. For

present purposes, empowerment can be understood as encompassing

three distinctive dynamics: catharsis (emotional relief), validation

(affirmation of worth and lived experience), and solidarity (group-

based empowerment).

First, informal reporting channels provide a mechanism for

women to name their abuse, which can itself be a form of release.

152

Especially because victims of sexual assault and harassment often

were, and continue to be, blamed for what happened to them, the act

of identifying misconduct—whether anonymously or not, to a select

group or to the general public—can itself be cathartic.

Second, women alleging sexual abuse via unofficial channels can

find their accounts validated in important ways. As restricted access

channels, both the Traditional Whisper Network and the Double

her, naming him and including his photo in a post that was shared more than 1,000 times in

a matter of days”).

150

See supra note 16 (emphasizing that the problem is a lopsidedness in the official/

unofficial response ratio rather than unofficial reporting per se).

151

See infra Part III.

152

See, e.g., Kelsky, supra note 120 (describing how one contributor to the spreadsheet

remarked that it “was the first time that I have told the full account of what happened to

me to anyone, and it has been hugely therapeutic in helping me to process the

experience”).

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Secret Whisper Network tend to function as survivor-friendly spaces.

These supportive environs reinforce the message that the alleged mis-

conduct is wrong and the reporter is not at fault.

153

This is not neces-

sarily true of open access networks—women’s public allegations of

sexual violation are frequently treated with hostility, disdain, and dis-

belief.

154

But the #MeToo movement may be changing this default

response,

155

which has made open access channels (namely, the

Shadow Court of Public Opinion and the New Court of Public

Opinion) increasingly likely sources of victim support.

Validation has yet another dimension. By facilitating the flow of

information regarding sexual misconduct, informal reporting channels

aggregate complaints, allowing participants to discover previously

hidden patterns. These patterns can be individuated, as when a cluster

of allegations centers on the same person.

156

The patterns exposed

through informal reporting can also be generalized, revealing com-

monalities in a workplace or industry.

157

More globally, patterns of

sexism and misogyny can be connected across disparate sectors of our

society,

158

and even throughout the world.

159

153

See, e.g., Donegan, supra note 127 (characterizing the Media Men List as “a place for

women to share their stories of harassment and assault without being needlessly

discredited or judged”). Jess Ladd, the founder of third-party reporting platform Callisto,

explained, “When you learn that you’re not the only victim of sexual harassment or assault,

you feel less ashamed about your experience and you feel more empowered to share your

experience with others.” Bouree Lam, Can Tech Make the Whisper Network Legitimate?,

EFINERY

29 (Feb. 8, 2018), https://www.refinery29.com/en-us/2018/02/181277/jess-ladd-

callisto-app-sexual-assault. In the words of one contributor to the Media Men spreadsheet,

“I just needed one space where I didn’t have to pretend, downplay, excuse, or minimize the

harassment.” Kelsky, supra note 120.

154

See generally Tuerkheimer, supra note 34, at 3 (describing pervasive practices of

credibility discounting); see also Gianino, supra note 147 (describing one woman’s negative

experiences in the wake of a #MeToo disclosure); Toglia, supra note 147 (relating accounts

of women who chose not to come forward with their #MeToo allegations).

155

See infra Section II.B.5 (describing institutional change in the wake of #MeToo).

156

For example, one woman who learned that she had been victimized by the same

workplace harasser as other women recounted that “it was kind of reassuring to know we

weren’t alone.” See Creswell & Hsu, supra note 126.

157

See, e.g., Donegan, supra note 127 (describing how #MeToo precipitated new

conversations about sexual harassment patterns in the media industry); Petrarca, supra

note 6 (discussing newly revealed patterns of abuse in the fashion industry); Ben

Schamisso, These Women Are Exposing the Scale of Sexual Misconduct in Academia,

EWSY

(Mar. 27, 2018), https://www.newsy.com/stories/medill-metoo-movement-exposes-

harrasment-in-academia (describing increased awareness of the scale of harassment in

academia).

158

See supra note 6 and accompanying text.

159

See Me Too Rising: A Visualization of the Movement from Google Trends, G

OOGLE

RENDS

, https://metoorising.withgoogle.com (last visisted Apr. 1, 2019) (depicting “Me

Too” search trends across different cities around the world through an interactive website).

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Third, the communal properties of informal reporting channels,

whether closed or open, enable victims of sexual violation to locate

their experiences within a larger context. Through the shared exper-

iences of others, women are able to confirm both the accuracy of their

understanding of the violation

160

and the gravity of their complaint.

161

This can be individually validating;

162

it can also enhance group soli-

darity, a collective form of empowerment. By connecting her own vio-

lation to those of others, a victim of misconduct can better discern that

she is far from alone.

163

This in turn can encourage identification with

other members of the subordinated group or groups.

The solidarity enhancing function of informal reporting is limited,

however, when network access is restricted, particularly—as is often

the case—when it is restricted to the more privileged members of a

group.

164

An intersectional approach to understanding the operation

of power

165

explains why information sharing in whisper networks

tends to exclude those with comparatively less advantage.

166

In con-

trast, open access channels have the potential to highlight commonali-

160

See infra notes 186–91 and accompanying text (discussing the concept of

hermeneutical injustice); Donegan, supra note 127 (observing that “[a]mong the most

potent of these powers [that women have] is the knowledge of our own experiences”).

161

See supra note 115 (discussing consciousness-raising methodology).

162

See supra notes 156–59 and accompanying text (discussing how women have

responded to seeing others report their experiences).

163

See, e.g., Colleen Flaherty, ‘Holding Space’ for Victims of Harassment, I

NSIDE

IGHER

(Dec. 8, 2017), https://www.insidehighered.com/news/2017/12/08/what-can-

crowdsourced-survey-sexual-harassment-academia-tell-us-about-problem (explaining that

the Academic Men List was created to “give victims a place to share their stories, to know

they are not alone and to realize the systemic, institutional and patterned natured of sexual

abuse in the academy”); Petrarca, supra note 6 (noting that since publication of the list of

accused harassers, models “know they are not alone”). One woman, describing the impetus

for participating in a Twitter exchange regarding harassment allegations against a

particular publicist, said “The minute I saw [the Tweets], I felt a surge of—corny as it

sounds—sisterhood, and I wanted to let her know that she wasn’t alone.” Rebecca

Haithcoat, ‘I Felt So Trapped’: In Indie Music, Sexual Harassment Is an Accepted

Nightmare, B

ROADLY

(Feb. 26, 2016, 9:00 AM), https://broadly.vice.com/en_us/article/

qkgyjx/i-felt-so-trapped-in-indie-music-sexual-harassment-is-an-accepted-nightmare; see

also Paul, supra note 129 (“Seeing the editor who forced himself on me on the Shitty

Media Men list—I didn’t put him there—was one of the moments I felt the least alone in

my life . . . .”).

164

See S.E. Smith, Who Hears the Whisper? The Shitty Media Men List Excludes So

Many, B

ITCH

EDIA

(Jan. 18, 2018, 1:28 PM), https://www.bitchmedia.org/article/who-

shitty-media-men-leaves-out (“Whisper networks can be incredibly powerful, but only

when the signal carries throughout a community, not just among those who already occupy

positions of comparative privilege.”).

165

See generally Crenshaw, supra note 50 (highlighting the various ways in which race

and gender interact to create structural, political, and representational violence against

women of color).

166

See Smith, supra note 164 (“If a whisper network highlights the power of a

sisterhood, it also underscores the exclusionary nature of sisterhood.”).

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ties between group members, broadly defined

167

(although the Courts

of Public Opinion are not without their own set of drawbacks, as we

will continue to see).

168

2. Group Member Protection

Women who report sexual misconduct through informal channels

often describe a desire to protect others from similar abuse.

169

This

impulse stems from the notion that sharing information with potential

victims of misconduct—especially in the workplace or on campus

170

—

disseminates knowledge that is useful for avoiding a similar

experience.

171

167

For example, female farmworkers wrote a letter to Hollywood victims of sexual

harassment, noting that “[e]ven though we work in very different environments, we share a

common experience of being preyed upon by individuals who have the power to hire, fire,

blacklist and otherwise threaten our economic, physical and emotional security.” 700,000

Female Farmworkers Say They Stand with Hollywood Actors Against Sexual Assault,

TIME (Nov. 10, 2017), http://time.com/5018813/farmworkers-solidarity-hollywood-sexual-

assault.

168

See supra note 147 (noting survivors’ reasons not to disclose publicly); see also infra

Section II.B.6 (discussing accountability in the informal reporting context).

169

See, e.g., Whitney Bauck, Instagram Account @shitmodelmgmt Posts ‘Blacklist’ to

Protect Models from Sexual Assault, F

ASHIONISTA

(last updated Mar. 5, 2018), https://

fashionista.com/2018/02/shit-model-management-fashion-photographers-sexual-

misconduct-list (stating that the public list of alleged harassers in the industry is “intended

to help models make informed decisions about who to work with—or not”); Donegan,

supra note 127 (describing the Media Men List as an “attempt at solving what has seemed

like an intractable problem: how women can protect ourselves from sexual harassment and

assault”); Petersen, supra note 123 (“[W]e’ve become dependent on unofficial modes of

communication to protect ourselves.”).

170

Beyond the confines of a closed community, it is generally more difficult to protect

would-be victims. But see, e.g., Brandon Griggs, #MeToo Is Succeeding Where Others

Failed—to Mute R. Kelly, CNN (May 10, 2018, 10:24 PM), https://www.cnn.com/2018/05/

10/entertainment/r-kelly-mute-movement-spotify-trnd/index.html (describing the many

allegations of sexual assault lodged against R. Kelly over decades that went largely

unaddressed until recently); William Lee, R. Kelly’s Fall Comes as Chicago, Black Women

Finally Turn Their Back on Star, C

. T

RIB

. (May 23, 2018, 12:25 PM), https://

www.chicagotribune.com/entertainment/music/ct-ae-rkelly-reaches-metoo-moment-0523-

story.html (describing how R. Kelly’s hometown of Chicago led the #MuteRKelly

campaign). In the wake of the #MuteRKelly campaign and the release of Surviving R.

Kelly, a documentary series first aired in January 2019, R. Kelly was indicted on a range of

sex offenses by offices in both Chicago and New York. See Jason Meisner, Madeline

Buckley & Megan Crepeau, R. Kelly Hit with Federal Indictments in New York, Chicago;

Faces New Racketeering, Sex Crime Charges, Allegations He Paid to Recover Sex Tapes and

Cover Up Conduct, C

. T

RIB

. (July 12, 2019, 3:57 PM), https://www.chicagotribune.com/

news/criminal-justice/ct-r-kelly-arrested-federal-charges-20190712-

6ghntysw3zf3lpncn4owcfzyje-story.html (summarizing the criminal charges pending against

R. Kelly).

171

More broadly, by facilitating access to fuller information regarding the conduct of

fellow community members, informal channels can promote the right of informed

association. I thank Ian Ayres for raising this possibility.

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At times, warnings spread through unofficial channels yield con-

crete strategies for minimizing the likelihood of victimization by an

alleged abuser. So-called “survivor tips”

172

for the workplace gener-

ally involve minimizing time alone with the abuser, which (depending

on the employment context) can mean not working late, leaving in

groups,

173

remaining in open areas of the workplace,

174

not answering

a knock on the hotel room door when traveling,

175

and carefully man-

aging parties and other off-site events.

176

On campus, unofficial

reports of abuse result in analogous efforts on the part of warned

group members to avoid one-on-one time with an alleged abuser and

even to restrict an abuser’s social access to the group altogether.

177

Despite the significance attached to protection as the rationale

for informally reporting misconduct, the shielding capacity of unoffi-

cial reporting channels is limited in several respects.

178

Most impor-

tantly, with regard to the Traditional Whisper Network and the

Double Secret Whisper Network (both restricted access channels),

only women who receive the warnings can take action to protect

themselves, leaving those without the information just as vulnerable—

and arguably even more vulnerable

179

—to abuse. Even women who

are privy to the report can remain at risk, as strategies for avoiding

alone time with an alleged abuser are often unviable.

180

Last, the protection rationale for unofficial reporting is premised

on the assumption that men who engage in sexual misconduct are

prone to reoffend.

181

Unless this tendency is somehow curtailed,

172

See, e.g., Creswell & Hsu, supra note 126 (describing both the informal and online

networks through which women share firsthand knowledge of abusers).

173

See e.g., Robin Pogrebin, Women Say Richard Meier’s Conduct Was Widely Known

yet Went Unchecked, N.Y. T

IMES

(Apr. 5, 2018), https://www.nytimes.com/2018/04/05/arts/

design/richard-meier-sexual-misconduct-allegations.html.

174

See, e.g., Creswell & Hsu, supra note 126.

175

See Unsolicited E-mail from confidential source to author (Feb. 23, 2018, 1:47 PM)

[hereinafter Unsolicited E-mail to author] (on file with author) (“A key piece of advice

was not to answer the hotel room door to let [a law firm partner known for harassing

behavior] in when he came looking for documents he wanted to review at midnight.”).

176

See id. (describing the lessons learned by a junior associate after she was harassed by

an equity partner at a law firm holiday party).

177

See Jackson, supra note 128 (describing whisper networks at Yale University).

178

See infra note 371 and accompanying text; see also infra Section II.B.6 (discussing

limited accountability in the informal reporting context).

179

See supra note 164 (noting that restricted access channels tend to serve those with

comparative privilege).

180

This is particularly likely to be the case for employees with relatively less power

within a workplace.

181

See Test Rape Kits. Stop Serial Rapists., E

ND THE

ACKLOG

(last visited Mar. 31,

2019), http://www.endthebacklog.org/backlog-why-rape-kit-testing-important/test-rape-

kits-stop-serial-rapists (using case studies to argue that rapists are often serial offenders);

Colin McEwan, New Research Shows What We Know (and Don’t) About Serial Rapists,

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either because abusers are deterred from further wrongdoing,

reformed, or incapacitated, they will more than likely find new

victims.

3. Epistemic Justice

Chief among the functions served by unofficial reporting is the

correction of epistemic injustice, a distinctive type of injustice in which

a person is wronged in her capacity as a knower.

182

Epistemic injustice

encompasses testimonial injustice and hermeneutical injustice: Testi-

monial injustice, the injustice of disbelief, entails the downgrading of a

speaker’s perceived trustworthiness due to prejudice; hermeneutical

injustice, the injustice of misinterpretation, prevents a person from

making sense of her experience and protesting it in comprehensible

form.

183

Broadly speaking, when a credibility assessment results from

prejudice, a testimonial injustice has occurred.

184

Consider, for

instance, a police officer’s resort to a gendered misconception to eval-

uate a rape accuser’s credibility. If the initial report is perceived as

false, there may be no further investigation; the case will be closed

based on faulty factual premises. Even apart from the informational

disadvantage that flows to the police officer (and the criminal justice

system as a whole), the accuser is significantly harmed “in [her]

capacity as a knower” when she experiences testimonial injustice.

185

A second branch of epistemic injustice—hermeneutical injus-

tice—undermines one’s ability to make sense of one’s experiences

that are not often shared by those with capacity to shape the realm of

AILY

(Mar. 27, 2018), https://thedaily.case.edu/new-research-shows-know-dont-serial-

rapists (summarizing research on newly tested sexual assault kits in Cuyahoga County,

Ohio). The suggestion that serial perpetrators commit most sexual assault remains

contested. See MacKinnon, supra note 19, at 2053–55 (evaluating the evidentiary basis for

the claim).

182

See generally M

IRANDA

RICKER

, E

PISTEMIC

NJUSTICE

: P

OWER

THE

THICS OF

NOWING

(2007) (exploring the ways in which a person can be wronged “in their capacity

as a knower”). It is important to recognize that epistemic injustice has long been an issue in

black feminist thought, even prior to Fricker’s description of the term. See Rachel

McKinnon, Epistemic Injustice, 11 P

HIL

. C

OMPASS

437, 438 (2016).

183

For a more extensive discussion, see Tuerkheimer, supra note 34, at 41–50.

184

See F

RICKER

, supra note 182, at 1 (“Testimonial injustice occurs when prejudice

causes a hearer to give a deflated level of credibility to a speaker’s word.”). The use of

“testimony” in this context does not correspond to its legal meaning; it simply refers to the

effort to communicate a factual assertion.

185

Id. When a person is treated as incapable of communicating or giving knowledge

appropriately, she is objectified. See id. at 139 (“Objects do not speak. When they do, they

are by then regarded as objects, not as humans which is what it means to have no

credibility.” (quoting C

ATHARINE

INNON

, F

EMINISM

NMODIFIED

: D

ISCOURSE OF

IFE AND

182 (1987))).

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1180 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:1146

interpretation.

186

This is commonly experienced as “gaslighting.”

187

this regard, consider that women are often met with resistance to

understanding an experience of nonconsensual penetration as sexual

assault—particularly where an acquaintance is the perpetrator and a

weapon is not used.

188

Even today, survivors may be led to doubt

whether what they experienced as sexual assault qualifies as such.

189

A police officer (or anyone else, for that matter) who responds to a

woman’s report of nonconsensual penetration by suggesting that it is

not “really rape” compounds this injustice.

190

This dynamic is vividly portrayed by Susan Estrich’s reflections

on having been sexually assaulted by a stranger with an ice pick:

I learned, much later, that I had “really” been raped. Unlike, say,

the woman who claimed she’d been raped by a man she actually

knew, and was with voluntarily. Unlike, say, women who are

“asking for it,” and get what they deserve. I would listen as seem-

ingly intelligent people explained these distinctions to me, and

marvel; later I read about them in books, court opinions, and empir-

ical studies. It is bad enough to be a “real” rape victim. How terrible

to be—what to call it—a “not real” rape victim.

191

Because social power influences the ability to participate in the

construction of social experience,

192

membership in a marginalized or

subordinated group tends to correspond to a distinct disadvantage:

186

See F

RICKER

, supra note 182, at 1 (“[H]ermeneutical injustice occurs . . . when a gap

in collective interpretive resources puts someone at an unfair disadvantage when it comes

to making sense of their social experiences.”); see also McKinnon, supra note 182, at 441

(“[Hermeneutical injustice] is where a socially disadvantaged group is blocked . . . from

access to knowledge, or access to communicating knowledge . . . due to a gap in

hermeneutical resources, especially when these resources would help people understand

the very existence and nature of the marginalization.”).

187

See Kelsky, supra note 120 (“Part of being socialized in a patriarchal society is a

mechanism of internalized gaslighting in which women are conditioned to second-guess

themselves, to doubt, to minimize, to do the emotional labor of both defusing situations

and reinterpreting them in such a way as to exculpate their harassers . . . .”).

188

The traditional definition of rape required the use of excessive physical force,

meaning that nonconsensual penetration simpliciter did not constitute sexual assault; this

remains the law in about half the states. See Stephen J. Schulhofer, Reforming the Law of

Rape, 35 L

& I

NEQ

. 335, 342–43 (2017) (“In almost half the states, sexual penetration is

not a crime unless there is both non-consent and some sort of force. Penetration without

consent is not, in itself, a crime.”). For a summary of reform efforts, see Schulhofer, supra.

189

As Fricker puts it, members of subordinated groups can be prevented from

“mak[ing] communicatively intelligible something which it is particularly in [their] interests

to be able to render intelligible.” F

RICKER

, supra note 182, at 162.

190

See supra note 24 (describing how endurance of the “real rape” paradigm leads to

under-reporting).

191

Susan Estrich, Rape, 95 Y

ALE

L.J. 1087, 1088 (1986).

192

See F

RICKER

, supra note 182, at 148 (“[T]he powerful tend to have appropriate

understandings of their experiences ready to draw on as they make sense of their social

experiences, whereas the powerless are more likely to find themselves having . . . at best ill-

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Experiences not shared by the powerful find no meaningful outlet in

collective notions of reality.

193

This problem is especially acute in cer-

tain areas of social life—so-called hermeneutical “hotspots”

194

—that

are already defined by unequal participation in the construction of

meaning.

195

In the #MeToo era, the proliferation of sexual abuse allegations is

seeding greater epistemic justice. As women in the #MeToo era infuse

the collective with new accounts of misconduct, they begin to dis-

mantle the default to doubt that has long characterized societal

responses to sexual violence. With more and more accusers coming

forward in the Courts of Public Opinion with allegations of abuse

(many of which are corroborated and many of which are acknowl-

edged by the perpetrator), it becomes exceedingly difficult to sustain

the proposition that most accusations are false.

196

Moreover, in a vir-

tuous cycle, as more women are believed, more become willing to

report their abuse. Open access channels thus provide a means of

advancing testimonial justice.

Informal reporting channels of all kinds can also promote herme-

neutical justice, as women piece together new interpretations of their

experiences. Sometimes this takes place within the confines of

Whisper Networks. But society writ large may also be on the cusp of

incorporating new understandings of sexual violation and its harm.

This is because women, in burgeoning numbers, are accessing the

Courts of Public Opinion.

197

4. Norm Evolution

Unofficial reporting not only advances epistemic justice; it also

fosters new norms surrounding a continuum of sexual misconduct. By

fitting meanings to draw on in the effort to render them intelligible.”). As Fricker notes,

this recognition is a tenet of feminist theory. Id. at 147.

193

See Tuerkheimer, supra note 34, at 48 (describing how an individual who lacks power

in a community may have trouble understanding her own experience or conveying it to the

larger community in a form that the community can comprehend).

194

RICKER

, supra note 182, at 152 (defining hotspots as “locations in social life where

the powerful have no interest in achieving a proper interpretation, perhaps indeed where

they have a positive interest in sustaining the extant misinterpretation”); see also id. at 151

(stating that hermeneutical disadvantage renders a subject “unable to make sense of her

ongoing mistreatment, and this in turn prevents her from protesting it, let alone securing

effective measures to stop it”); Tuerkheimer, supra note 34, at 46–48.

195

See F

RICKER

, supra note 182, at 153 (“[W]hen there is unequal hermeneutical

participation with respect to some significant area(s) of social experience, members of the

disadvantaged group are hermeneutically marginalized.”).

196

See Tuerkheimer, supra note 34, at 17–20 (summarizing the best available research

on false reporting of sexual assault).

197

See supra notes 143–49 and accompanying text.

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sharing their accounts of abuse, women lay bare not just the ubiquity

of conduct already defined as sexual violation, but also the violative

nature of behaviors not yet perceived as problematic.

Norms can of course evolve within a networked community—that

is, within the directly affected group. Ultimately, however, enduring

normative transformation seems to require a degree of consensus that

extends beyond members of the group harmed by the conduct at

issue, outward to those who occupy positions of relative social power.

For this reason, open access reporting channels (the Courts of Public

Opinion) destabilize settled understandings of what counts as miscon-

duct in ways that restricted access channels (Whisper Networks) do

not.

198

In the time of #MeToo, mention of non-actionable sexual miscon-

duct has occasionally become a flashpoint of controversy, even among

feminist commentators.

199

But for many accusers, the inclusion of

infractions not currently prohibited by law, or even by custom, is a

feature—not a bug—of the movement.

200

Without denying the exis-

tence of different categories of sexual misconduct, women who have

been victimized by overlooked kinds of abuse are nevertheless

insisting that it is wrongful.

201

This move does not collapse categories

of misconduct, nor does it equate their varying levels of harm and

culpability. What it does is connect the sexist, often misogynistic,

strands that run through sexual violation from its most to its least

extreme.

To understand how engagement in the Courts of Public Opinion

can challenge established norms, consider the story of a woman

known as Grace and the comedian Aziz Ansari. In early 2018, Grace’s

allegation of an unwanted sexual encounter with Ansari was published

198

“Courts of Public Opinion” refers to both the Shadow Court of Public Opinion and

the New Court of Public Opinion, while “Whisper Networks” refers to both the Traditional

Whisper Network and the Double Secret Whisper Network.

199

See, e.g., Caitlin Flanagan, The Humiliation of Aziz Ansari, A

TLANTIC

(Jan. 14,

2018), https://www.theatlantic.com/entertainment/archive/2018/01/the-humiliation-of-aziz-

ansari/550541 (critiquing the handling of the Aziz Ansari sexual assault allegations).

200

See Donegan, supra note 127 (describing the Media Men List, a spreadsheet that

“collected a range of rumors and allegations of sexual misconduct,” including infractions

not covered by law, within the publishing industry).

201

See, e.g., Schamisso, supra note 157 (explaining that the Academic Men List includes

“things as small as an offhand comment, like, ‘I love it when you wear a skirt in the lab’ ”);

see also Laura Tucker, Sharing Something from 2013, M

EDIUM

(Jan. 10, 2018), https://

medium.com/@laura__tucker/jan-10-2018-5d5bbf79f97b (publicly accusing then-L.A.

Times Beijing Bureau Chief and President of the Foreign Correspondents Club of having

pressured her into sex over her expressed lack of consent, and emphasizing the

blameworthiness of this conduct).

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online.

202

Rather suddenly, a public in the throes of grappling with

sexual assault and harassment was confronted with untold “stories of

gray areas.”

203

Grace’s account—a “Rorschach test” of sexual norma-

tivity

204

—came to stand in for these stories, prompting a range of

reactions.

205

Even the appropriate vernacular to describe the

encounter with Ansari was confusing.

206

Amidst a fraught effort to begin grappling with sex that results

from “pressured consent,”

207

what emerged was a nearly universal

consensus that Grace’s account was one with which women were

exceedingly familiar.

208

As Jessica Valenti tweeted in the story’s

immediate wake: “A lot of men will read that post about Aziz Ansari

and see an everyday, reasonable sexual interaction. But part of what

women are saying right now is that what the culture considers

‘normal’ sexual encounters are not working for us and [are] often-

times harmful.”

209

202

See Katie Way, I Went on a Date with Aziz Ansari. It Turned into the Worst Night of

My Life., B

ABE

(Jan. 13, 2018), https://babe.net/2018/01/13/aziz-ansari-28355.

203

See James Hamblin, This Is Not a Sex Panic, A

TLANTIC

(Jan. 17, 2018), https://

www.theatlantic.com/entertainment/archive/2018/01/this-is-not-a-sex-panic/550547

(summarizing Grace’s account and its aftershocks). Surveying this muddled frontier, one

commentator observed that “[t]here is a sizable chasm between an ‘awkward sexual

experience’ and sexual assault and its topography is largely unmapped.” Stassa Edwards,

It’s Time to Map the Wilderness of Bad Sex, J

EZEBEL

(Jan. 19, 2018, 3:20 PM), https://

jezebel.com/its-time-to-map-the-wilderness-of-bad-sex-1822171954.

204

See Hamblin, supra note 203 (“The story of Aziz Ansari and ‘Grace’ is playing out as

a sort of Rorschach test.”).

205

Caroline Framke, The Controversy Around Babe.net’s Aziz Ansari Story, Explained,

(Jan. 18, 2018, 10:09 AM), https://www.vox.com/culture/2018/1/17/16897440/aziz-

ansari-allegations-babe-me-too (describing the wide range of responses to Grace’s story,

with some finding the account “painfully relatable,” and others critiquing it as

“unforgivably irresponsible”).

206

See, e.g., Jenny Hollander, You’re Right, Everything Aziz Ansari Did Was Legal,

USTLE

(Jan. 17, 2018), https://www.bustle.com/p/youre-right-everything-aziz-ansari-did-

was-legal-7923237 (“What do we call it when a man repeatedly pressures a woman to

engage in sexual acts? What do we call it when a [sic] someone says ‘no,’ but then appears

to change their mind? What do we call it when someone feels violated after a sexual

encounter?”).

207

See Deborah Tuerkheimer, Sexual Violation Without Law: Evidence from #MeToo,

N.Y.U. A

. S

URV

. A

. L. (forthcoming 2020) (manuscript at 17–19) (on file with author).

208

See, e.g., Anna North, The Aziz Ansari Story Is Ordinary. That’s Why We Have to

Talk About It., V

(Jan. 16, 2018, 10:10 AM), https://www.vox.com/identities/2018/1/16/

16894722/aziz-ansari-grace-babe-me-too (“[T]he sheer commonness of Grace’s

experience . . . makes it so important to talk about.”). Even commentators unsympathetic

to Grace’s plight acknowledged the normality of the incident. See, e.g., Bari Weiss, Aziz

Ansari Is Guilty. Of Not Being a Mind Reader., N.Y. T

IMES

(Jan. 15, 2018), https://

www.nytimes.com/2018/01/15/opinion/aziz-ansari-babe-sexual-harassment.html (remarking

that “every adult woman I know” has had similar “lousy romantic encounters”).

209

Flanagan, supra note 199 (quoting Jessica Valenti (@JessicaValenti), T

WITTER

(Jan.

14, 2018, 7:50 AM), https://twitter.com/JessicaValenti/status/952568652066443264 [https://

perma.cc/FBK9-GXDJ]).

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Jill Filipovic emphasized the limits of rape as a proxy for prob-

lematic sex, noting that we live in a society that “still sees sex as pri-

marily about male pleasure; that continues to position women’s bodies

as sexual objects, receptacles and stand-ins for sex itself; and that

encourages sexual aggressiveness in men and congeniality and pas-

sivity in women.”

210

In short, as a reckoning with sexual assault and

harassment morphed to implicate “our broken sexual culture” writ

large,

211

we witnessed how informal reporting can contest entrenched

cultural norms.

This is not to suggest that consensus around new sexual norms is

readily forged, even when women utilize unofficial reporting channels

to stretch the boundaries of the unacceptable. Rather, a recalibration

can only unfold over time. But #MeToo portends that when women

come forward with their yet unaccounted-for experiences of violation,

more robust normative frameworks will eventually materialize.

5. Institutional Change

Of late, unofficial reporting through open access channels is

being used to induce institutional change.

212

The Academic Men List,

for example, does not identify alleged perpetrators by name, but was

deliberately designed to focus attention on the universities and

departments where the misconduct was said to occur.

213

Likewise, in

the wake of the Weinstein scandal,

214

women in Hollywood have

mounted a concerted effort to address sexual harassment in the

entertainment industry, for instance, by crafting a standard contract

clause prohibiting sexual misconduct.

215

And in the judiciary, after

misconduct accusations against Ninth Circuit Judge Alex Kozinski

(accusations leveled in the New Court of Public Opinion) led to his

210

Jill Filipovic, The Poorly Reported Aziz Ansari Expos´e Was a Missed Opportunity,

UARDIAN

(Jan. 16, 2018, 9:16 PM), https://www.theguardian.com/commentisfree/2018/

jan/16/aziz-ansari-story-missed-opportunity.

211

Weiss, supra note 208.

212

In contrast, both the Traditional Whisper Network and the Double Secret Whisper

Network are unlikely to accomplish this end.

213

See Kelsky, supra note 120. As the creator of the Academic Men List explained,

“I . . . hope [the List] removes all plausible deniability from academic institutions. You are

all on notice.” Id.

214

See supra notes 1–3 and accompanying text.

215

See, e.g., Trey Williams, Women in Hollywood Are Fighting to Change the Culture of

Sexual Harassment, M

ARKET

ATCH

(Jan. 3, 2018, 9:56 AM), https://www.marketwatch.

com/story/how-hollywood-is-aiming-to-change-its-culture-of-sexual-harassment-2017-12-

28; see also Sarah Spellings, Models Want a Legally Binding Contract Against Sexual

Harassment, T

(May 16, 2018), https://www.thecut.com/2018/05/how-model-

alliance-anti-sexual-harassment-program-would-work.html (describing similar efforts in

the fashion industry).

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resignation,

216

Chief Justice John Roberts announced a review of the

federal bench’s response to sexual harassment.

217

It is too soon to say whether the institutional corrections

prompted by informal reporting will prove meaningful and lasting. To

be sure, there is good reason to remain cautious about exclusive reli-

ance on the Courts of Public Opinion as a force for change.

218

Even

so, unlike networks that restrict access to group members (the

Traditional Whisper Network and the Double Secret Whisper

Network), open access reporting channels (the Shadow Court of

Public Opinion and the New Court of Public Opinion) present the

prospect of victims leveraging their experiences to reform the univer-

sities, workplaces, professions, and industries that have dismally failed

to address sexual misconduct.

6. Offender Accountability

Whisper Networks sacrifice the pursuit of offender accountability

in the interest of achieving other benefits. For women who report

through restricted access channels, whether anonymously or not, this

tradeoff is generally accepted as an inherent feature of the network

model.

219

Since the recipients of the report are members of the vulner-

able community, rather than those in positions of power over the

abuser, it is not expected that any mechanisms of accountability will

be triggered by a victim’s unofficial complaint.

216

See Niraj Chokshi, Federal Judge Alex Kozinski Retires Abruptly After Sexual

Harassment Allegations, N.Y. T

IMES

(Dec. 18, 2017), https://www.nytimes.com/2017/12/18/

us/alex-kozinski-retires.html.

217

See Valerie Volcovici, Chief Justice Orders Review of Sexual Harassment Standards in

U.S. Judiciary, R

EUTERS

(Dec. 31, 2017), https://www.reuters.com/article/us-usa-court-

harassment/chief-justice-orders-review-of-sexual-harassment-standards-in-u-s-judiciary-

idUSKBN1EP0MP; see also R

EPORT OF THE

EDERAL

UDICIARY

ORKPLACE

ONDUCT

ORKING

ROUP TO THE

UDICIAL

ONFERENCE OF THE

NITED

TATES

(2018), http://

www.uscourts.gov/sites/default/files/workplace_conduct_working_group_final_report_

0.pdf. In March 2019, the Judicial Conference adopted a new set of workplace conduct

rules governing, among other prohibited behaviors, sexual harassment. Judicial Conference

Approves Package of Workplace Conduct Reforms, A

DMIN

. O

. U.S. C

. (Mar. 12,

2019), https://www.uscourts.gov/news/2019/03/12/judicial-conference-approves-package-

workplace-conduct-reforms.

218

See A

. P

SYCHOL

. A

’

, W

ORKPLACE

EXUAL

ARASSMENT

: A

MPLOYERS

CTUALLY

ESPONDING

? 3 (2018), http://www.apaexcellence.org/assets/general/2018-

sexual-harassment-survey-results.pdf (finding that the #MeToo movement prompted only

ten percent of employers to add new sexual harassment trainings and just eight percent to

implement a more stringent sexual harassment policy).

219

Indeed, for some women, the lack of accountability is a chief benefit. See Donegan,

supra note 127 (“[T]he value of the spreadsheet was that it had no enforcement

mechanisms: Without legal authority or professional power, it offered an impartial, rather

than adversarial, tool to those who used it. It was intended specifically not to inflict

consequences, not to be a weapon . . . .”).

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The growing use of open access channels complicates this non-

accountability story. When named women come forward in the New

Court of Public Opinion, consequences may result.

220

Relatedly, when

anonymous women make accusations in the Shadow Court of Public

Opinion, these accusations can launch formal processes that may also

lead to consequences if an accuser can be identified.

221

In the age of

#MeToo, men accused of misconduct in the Courts of Public Opinion

have faced job loss,

222

suspension,

223

honors revocation,

224

and eco-

nomic penalties imposed by businesses and consumers alike.

225

They

have also been disgraced in the eyes of family, friends, and the general

public (although the longevity of sexual abuse-based stigma is

questionable).

226

220

This prospect may implicate concerns for process. See infra notes 237–41 and

accompanying text (discussing this critique); see also supra note 144 (explaining that

informal reporting can trigger formal processes).

221

While the contours of these formal processes are often opaque, a sanctioning body is

unlikely to impose a penalty based only on an anonymous accusation. This scenario may

change if an anonymous accusation triggers an investigation that generates corroboration

of the anonymous account—for instance, a witness, electronic evidence, or an admission by

the accused.

222

See, e.g., Sarah Almukhtar et al., After Weinstein: 71 Men Accused of Sexual

Misconduct and Their Fall from Power, N.Y. T

IMES

(Feb. 8, 2018), https://

www.nytimes.com/interactive/2017/11/10/us/men-accused-sexual-misconduct-

weinstein.html (listing men “fired or forced to resign after accusations of sexual

misconduct that ranged from inappropriate comments to rape”).

223

See, e.g., id. (listing men who have faced “[s]uspensions and [o]ther [f]allout”).

224

See Susan Adams, Steve Wynn Loses Naming Rights at U Penn After Sexual

Misconduct Allegations, F

ORBES

(Feb. 1, 2018), https://www.forbes.com/sites/susanadams/

2018/02/01/the-university-of-pennsylvania-is-stripping-steve-wynns-name-from-a-campus-

plaza; Louis Lucero II, Charlie Rose Has Honors from Two Journalism Schools Rescinded,

N.Y. T

IMES

(Nov. 24, 2017), https://www.nytimes.com/2017/11/24/us/charlie-rose-

awards.html; Jane C. Hu, In the Aftermath of #MeToo, Which Names in Science Should be

Replaced?, Q

UARTZY

(Sept. 19, 2018), https://qz.com/quartzy/1394785/replacing-names-in-

science-after-metoo.

225

See, e.g., supra note 170 (describing post-#MeToo responses to longtime sexual

misconduct allegations against R. Kelly); see also Ben Sisario, R. Kelly Dropped by RCA

Records After Documentary Furor, N.Y. T

IMES

(Jan. 18, 2019), https://www.nytimes.com/

2019/01/18/arts/music/r-kelly-rca-sony.html.

226

See, e.g., Amanda Arnold, The Men Who Are Plotting Their Post-#MeToo

Comebacks, T

(Apr. 19, 2018), https://www.thecut.com/2018/04/comeback-men-

sexual-harassment-me-too.html (describing efforts on the part of Charlie Rose, Mario

Batali, Lorin Stein, Matt Lauer, Garrison Keillor, Louis C.K., and Al Franken to make a

comeback); Brooks Barnes, John Lasseter, Ousted from Pixar in #MeToo Wave, Finds New

Hollywood Home, N.Y. T

IMES

(Jan. 9, 2019), https://www.nytimes.com/2019/01/09/

business/media/john-lasseter-skydance.html (reporting on powerful entertainment

executive’s comeback within months of resigning from the company he founded due to

allegations of workplace sexual harassment); see also Stassa Edwards, Redemption Is

Inevitable for Powerful Men, J

EZEBEL

(Apr. 20, 2018), https://jezebel.com/

setsession?r=https%3A%2F%2Fjezebel.com%2Fredemption-is-inevitable-for-powerful-

men-1825364533&sessionId=9017dffb-9d1c-4b50-8bb2-4730357f21a5 (positing the

inevitability of “redemption narratives” for men accused of sexual misconduct).

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Setting aside whether these consequences are appropriate in any

individual case,

227

it is useful to observe that the consequences stem-

ming from the Courts of Public Opinion may qualify as only partial

accountability. One precondition for full accountability might be a

degree of proportionality between the infraction and the attendant

repercussion. Another might entail a level of transparency that

enables those harmed by the misconduct to feel vested in the abuser’s

penance. Perhaps accountability requires a mechanism for conveying

collective condemnation of the transgression.

My aim here is not to offer a comprehensive theory of accounta-

bility but to gesture at the kinds of considerations that might come

into play when we assess what may be missing even when unofficial

reporting yields consequences.

228

Further to this concern, most com-

mentators have implicitly presupposed that individual accountability

can be analyzed without regard to the relevant legal framework.

229

my view, it cannot. Although not all sexual misconduct is regulated by

law, most of the misconduct being disclosed in the #MeToo era is pro-

hibited by criminal law, Title IX, Title VII, or some combination of

the three. When this conduct results in only extra-legal consequences,

we should be troubled by the gap between the available (formal)

redress and the outcome imposed instead. In other words, the mea-

sure of accountability cannot be abstracted from what is dictated by

our system of laws.

In the New Court of Public Opinion, the limits of accountability

are compounded by the problem of inequity. Access to channels that

hold the greatest promise of generating some consequence, however

inadequate, is markedly unequal. Most victims of sexual assault and

harassment do not have connections to mainstream media reporters.

Moreover, for women whose abusers are not the subject of intense

public interest,

230

resort to traditional media outlets is typically not an

option.

231

In sum, those especially vulnerable to workplace sexual mis-

conduct—women of color and women in low-wage jobs—are cut off

227

See Katie J.M. Baker, What Do We Do with These Men?, N.Y. T

IMES

(Apr. 27,

2018), https://www.nytimes.com/2018/04/27/opinion/sunday/metoo-comebacks-charlie-

rose.html (calling for a discussion of “alternatives to exile” for those accused of sexual

misconduct).

228

See generally Lesley Wexler, Jennifer K. Robbennolt & Colleen Murphy, #MeToo,

Time’s Up, and Theories of Justice, 2019 U. I

. L. R

. 45 (applying theories and practices

of transitional justice to the #MeToo movement).

229

Cf. supra notes 9–12 and accompanying text (noting that legal scholarship has largely

overlooked the significance of unofficial reporting channels in responding to sexual

misconduct).

230

See supra note 146.

231

See supra note 147 and accompanying text.

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from mechanisms of informal reporting that, among the unofficial

options, offer the greatest hope of prompting a semblance of offender

accountability, however imperfect.

232

C. The Future of Unofficial Reporting: A First Assessment

With the spread of #MeToo, the costs and benefits of divulging

abuse have begun to shift in appreciable ways. Assuming this trajec-

tory is maintained, we should expect to see increased activity in the

matrices that extend beyond the confines of the Traditional Whisper

Network: the Double Secret Whisper Network, the Shadow Court of

Public Opinion, and the New Court of Public Opinion. Victims will be

especially drawn to channels that allow them to aggregate allegations

against a particular individual—in essence, to use one another’s

accounts to bolster the credibility of all accusers.

233

Yet there is reason to be cautious about the rise of informal accu-

sation.

234

As we have seen, there are meaningful limits on what unoffi-

cial reporting can accomplish, especially with regard to perpetrator

accountability.

235

Two additional concerns are worthy of mention.

236

First, informal accusation is characterized by a lack of formal pro-

cess. While this observation is often harnessed by politicians and com-

mentators who tend to sympathize with the accused,

237

many who

232

Even social media, which is more accessible than mainstream media to victims of

sexual misconduct, may be effectively off limits to many members of marginalized

communities. As California Assemblywoman Lorena Gonzalez put it, “The MeToo

movement . . . can’t just be for women who have a Twitter account.” Charisse Jones, When

Will MeToo Become WeToo? Some Say Voices of Black Women, Working Class Left Out,

USA T

ODAY

(Oct. 5, 2018), https://www.usatoday.com/story/money/2018/10/05/metoo-

movement-lacks-diversity-blacks-working-class-sexual-harassment/1443105002.

233

I have called this “credibility in numbers.” Deborah Tuerkheimer, What If Only One

Woman Had Accused Harvey Weinstein?, G

UARDIAN

(Oct. 22, 2017), https://

www.theguardian.com/commentisfree/2017/oct/22/harvey-weinstein-bill-cosby-allegations.

The aggregation of complaints represents an efficient mode of delivering the validation and

solidarity long enabled by the Traditional Whisper Network. See supra notes 153–57 and

accompanying text. Aggregation also provides a partial antidote to the credibility

discounting that sexual abuse victims have long endured. See supra notes 34–35 and

accompanying text. Unfortunately, however, the lone accuser remains relegated to a far

more tenuous status, informally perpetuating once-codified legal requirements unique to

sexual assault cases. See Tuerkheimer, supra note 34, at 21–23 (describing legal rules that

expressly embodied a stance of deep skepticism toward rape accusers).

234

My solution is to adapt formal reporting channels to better account for the needs of

survivors. See infra Part III.

235

See supra Section II.B.6.

236

For a more thorough discussion of these concerns, see Tuerkheimer, Unofficial

Reporting, supra note 119 (manuscript at 27–34).

237

Around the time of then-Judge Kavanaugh’s confirmation hearing, President Trump

captured and advanced this line of thinking as follows: “[I]t’s a very scary time for young

men in America when you can be guilty of something you might not be guilty of. This is a

very difficult time. . . . [S]omebody could accuse you of something and you’re automatically

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tend to sympathize with the accuser also worry about a world in which

established procedures for investigating and adjudicating allegations

of abuse are supplanted by pervasive public shaming and

vigilantism.

238

Although the process critique is often exaggerated,

239

the proce-

dural void that characterizes unofficial reporting matters.

240

Formal

investigative procedures are of independent value.

241

At least with

respect to contested allegations of abuse, processes triggered by the

formal reporting of abuse, assuming they are fair, are generally prefer-

able to adjudication in the Courts of Public Opinion.

A second concern relates to the silencing effects of a weaponized

defamation law.

242

When a person makes an unofficial allegation of

sexual misconduct, she becomes the potential target of a defamation

claim by the individual accused.

243

With the proliferation of reporting

in the New Court of Public Opinion and the Shadow Court of Public

Opinion, this threat has grown far more significant.

244

Of course, if an

guilty.” Dara Lind, Trump: “It’s a Very Scary Time for Young Men in America,” V

(Oct.

2, 2018, 2:02 PM), https://www.vox.com/2018/10/2/17928800/trump-women-doing-great-

kavanaugh. Trump then added, “Women are doing great.” Id. For a contextual analysis, see

Mary Anne Franks, Witch Hunts: Free Speech, the First Amendment, and the Fear of

Women’s Words, 2019 U. C

. L

EGAL

F. (forthcoming 2019).

238

See, e.g., Shira A. Sheindlin & Joel Cohen, After #MeToo, We Can’t Ditch Due

Process, G

UARDIAN

(Jan. 8, 2018, 6:00 AM), https://www.theguardian.com/commentisfree/

2018/jan/08/metoo-due-process-televictions (arguing for a “swift and fair process” for the

accused); see also Masha Gessen, When Does a Watershed Become a Sex Panic?, N

ORKER

(Nov. 14, 2017), https://www.newyorker.com/news/our-columnists/when-does-a-

watershed-become-a-sex-panic (warning of #MeToo turning into a “sex panic”); Caitlin

Flanagan, The Conversation #MeToo Needs to Have, A

TLANTIC

(Jan. 29, 2018), https://

www.theatlantic.com/politics/archive/2018/01/the-right-conversation-for-metoo/551732

(discussing increased due process protections and proportionality as part of the “rocky

path that #MeToo must travel if it is to grow from a vehicle of outrage to a mechanism for

lasting change”).

239

See Tuerkheimer, Unofficial Reporting, supra note 119 (manuscript at 27–30)

(identifying where process-related concerns have been overblown and where they have

traction).

240

Apart from substantive concerns, the procedural void matters strategically, since it

helps fuel opposition to #MeToo.

241

A vast literature describes the virtues of procedural justice. See, e.g., E. A

LLAN

IND

& T

R. T

YLER

, T

OCIAL

SYCHOLOGY OF

ROCEDURAL

USTICE

(1988).

242

Defamation is a common-law tort consisting of a false statement of fact that injures

the subject’s reputation. R

ESTATEMENT

ECOND

)

ORTS

§ 558 (A

. L

NST

. 1977).

243

Accusers may also be sued for statements made in the course of campus disciplinary

proceedings. See Tyler Kingkade, As More College Students Say “Me Too,” Accused Men

Are Suing for Defamation, B

UZZ

EED

(Dec. 15, 2017, 11:26 AM), https://

www.buzzfeednews.com/article/tylerkingkade/as-more-college-students-say-me-too-

accused-men-are-suing.

244

The first high-profile defamation suit in the #MeToo era was filed in October 2018,

when Stephen Elliott, a writer accused of sexual assault and harassment in multiple entries

on the Media Men List, sued Moira Donegan, creator of the list, and thirty anonymous

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allegation of abuse is truthful, a defamation defendant should ulti-

mately prevail. Even so, the prospect of being sued for libel is—or

should be—a meaningful deterrent to publicly accusing one’s abuser.

Most sexual misconduct victims cannot afford the financial cost of

defending a lawsuit, even apart from the psychic toll this effort exacts.

Moreover, the confused state of defamation law

245

means that litiga-

tion costs in this area are highly uncertain.

246

For the anonymous sexual abuse complainant whose identity is

revealed in the course of defending a defamation claim—as well as for

the accuser named at the outset—the defense of truth may allow for

ultimate vindication. Even so, prevailing in the end hardly seems satis-

fying. In an ironic twist, a survivor who deliberately eschews formal

reporting channels for whatever reason (but often, to avoid the credi-

bility discount) may eventually wind up in a courtroom anyway, telling

her story under the most formal conditions possible, having expended

enormous resources along the way, in exclusive service of beating

back a claim that she lied about her abuse. With defamation law

lurking in the background, no survivor could be faulted for deciding to

forsake unofficial reporting altogether and to keep silent about her

abuse.

Concerns related to process and to the silencing effects of defa-

mation law are unlikely to dissipate. Still, absent significant improve-

ments to the official alternatives,

247

extra-legal remedies will remain

more attractive to most survivors than a turn to law.

248

As we have

seen, informal reporting may well be the best option for an individual

survivor and, in the aggregate, unofficial complaint has propelled a

powerful movement for gender justice.

249

Yet the rise of informal

accusation cannot substitute for a functional legal response.

250

Put dif-

ferently, working around law’s failures is an unacceptable end point.

Jane Does for $1.5 million. See Elliott v. Donegan, No. 1:18-cv-05680-LDH-SJB, 2018 WL

4940326 (E.D.N.Y. Oct. 10, 2018); see also supra notes 127–28 and accompanying text

(discussing Media Men List and other anonymous spreadsheets). For analysis of the

Donegan lawsuit, see Tuerkheimer, Unofficial Reporting, supra note 119 (manuscript at

32–34).

245

See Amy Kristen Sanders & Holly Miller, Revitalizing Rosenbloom: The Matter of

Public Concern Standard in the Age of the Internet, 12 F

IRST

MEND

. L. R

. 529, 542

(2014) (“Many scholars agree that current defamation standards are confusing, often

contradictory, and offer little predictability for parties.”).

246

For elaboration on the doctrinal complexities that contribute to this confusion, see

Tuerkheimer, Unofficial Reporting, supra note 119 (manuscript at 33–34).

247

Here I focus on the task of reforming official reporting channels rather than the

substantive laws they trigger.

248

See supra Part I.

249

See supra Section II.B.

250

See supra note 22 (highlighting the equality norm at stake).

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November 2019] BEYOND #METOO 1191

Without upgrading the complaint channels that activate the law

of sexual misconduct,

251

most reporting will continue to bypass formal

mechanisms of process and accountability, to the detriment of both

accusers and accused.

III

OWARD A

EXT

ENERATION OF

ORMAL

EPORTING

HANNELS

The #MeToo movement has ignited a new age of informal accusa-

tion, which until now has gone unnoticed. Legal scholars and practi-

tioners have special cause to attend to this development, as it bears

directly on the relevance of law to address sexual misconduct.

252

most victims of abuse continue to reject formal reporting channels in

favor of Whisper Networks and the Courts of Public Opinion, law

risks virtual obsolescence in the sexual violence space.

My contention is not simply that we should find this prospect of

interest,

253

but that the widespread abandonment of legal mechanisms

for redressing sexual misconduct ought to trouble us. Our laws gov-

erning sexual misconduct—primarily statutes criminalizing sexual

assault, Title IX, and Title VII—are not perfect; far from it. To accept

their current levels of disuse, however, is to relinquish far too much.

Now is an opportune moment for institutions charged with imple-

menting sexual misconduct laws to leverage the burgeoning appeal of

unofficial reporting. #MeToo has generated newfound receptivity to

allegations of abuse.

254

But for this transformation to impact the

workings of law, official channels for reporting abuse must evolve to a

multi-tiered system, bringing more misconduct into formal systems for

processing.

255

These formal systems, however flawed, instantiate the

legal norms that prohibit sexual misconduct; they offer redress for

accusers while protecting those accused of misconduct, and they do so

251

This is not meant to minimize the importance of reforming substantive laws,

doctrines, and enforcement practices, but to surface an area of needed change that has not

been identified.

252

Lawyers and legal scholars should also be particularly attentive to process-related

concerns. See supra notes 237–41 and accompanying text.

253

See supra notes 11–12 and accompanying text (noting that unofficial reporting

should be of particular interest to legal scholars and practitioners).

254

See supra Section II.A.4. For present purposes, it is useful to observe that actors with

designated responsibilities for investigating and adjudicating abuse allegations are part of

this ongoing transformation.

255

See supra note 23 (describing various facets of the under-enforcement problem).

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1192 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:1146

in myriad ways not provided for by unofficial reporting

mechanisms.

256

Informed by the benefits and drawbacks of informal accusation

for survivors of abuse, we turn now to the design of a next generation

of formal reporting channels. Like their informal counterparts, these

improved complaint channels would prioritize victim empowerment

while more effectively advancing the goals of group member protec-

tion, offender accountability, and institutional change. Refurbished

formal channels would draw on central features of informal accusa-

tion—namely, options to report anonymously, to report confiden-

tially, and to escrow the report—in order to bring more allegations

into established systems. As I will show, a multi-tiered approach to

formal reporting would capture much of the allure of informal accusa-

tion, promising to newly invigorate the law of sexual misconduct.

A. Criminal Justice System

More often than not, as we have seen, victims of sexual assault do

not report the crime to police.

257

Without minimizing the related need

for improvements in the criminal justice system’s downstream

response to sexual violence,

258

my focus here remains on the point of

access—that is, on the mechanisms in place for survivors to initiate a

criminal investigation and for potential adjudication of their

allegations.

259

The traditional pathway for reporting to law enforcement is, at

least in theory, fairly straightforward.

260

Once a complainant makes

an accusation, the police are responsible for investigating the facts in

order to determine whether there is sufficient cause to proceed with

256

The protections offered to those accused of misconduct vary depending on the type

of allegation, with the criminal justice system providing the most expansive rights and

processes, followed by college campuses and workplaces. My point is not that the process

that is “due” in these disparate contexts is necessarily sufficient as a practical matter but

that formal institutional processes provide some measure of protection for the accused,

while informal complaint channels do not.

257

See supra Section I.A.

258

My own work has often focused on this need. See, e.g., Deborah Tuerkheimer, Rape

On and Off Campus, 65 E

MORY

L.J. 1 (2015) (critiquing the criminal law’s problematic

construction of sexual consent); Tuerkheimer, supra note 22 (discussing federal

intervention to combat systematic underenforcement).

259

Most sexual assault allegations, even those reported to the police, do not result in a

criminal conviction. See generally Kimberly A. Lonsway & Joanne Archambault, The

“Justice Gap” for Sexual Assault Cases: Future Directions for Research and Reform, 18

IOLENCE

GAINST

OMEN

145, 154–57 (2012) (documenting the attrition of rape

allegations as cases progress through the criminal justice system).

260

See supra notes 28–33 and accompanying text.

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an arrest.

261

Beginning with the first encounter, interactions between

the police and the alleged victim are framed by an overarching need

on the part of law enforcement officers to “clear” the case in one way

or another.

262

From the perspective of complainants, this process is typically

unsatisfying. To see why, consider the contrasting appeal of informal

reporting. As we have seen, unofficial channels can empower survi-

vors; they can offer a form of protection to would-be victims; they can

promote advances in collective knowledge, norms, and institutional

responsiveness; and they can hold out the prospect of a measure of

accountability, however incomplete.

263

In most cases, complaining to the police in order to initiate the

criminal justice process offers sexual assault survivors none of these

advantages. Admittedly, the criminal justice system is not meant to

serve the needs of crime victims alone. At times, law enforcement

officers (both police and prosecutors) act contrary to the expressed

wishes of a victim and appropriately so—public safety or the interest

of justice may dictate a course of action more or less lenient than that

envisioned by the complainant. Accordingly, importing survivor-

centered approaches to reporting into the criminal process, as I advo-

cate, raises tensions. Even so, a system that is vastly underutilized vis-

a-vis sexual violence cannot effectively serve its intended functions. To

further the many aspirations of the criminal justice system, which has

a unique set of imperatives, law enforcement’s complaint channels

must become more enticing to sexual assault victims.

When constructing this architecture, a chief lesson of informal

reporting is that accusers should be given more control over their

reports. Survivors must always retain the traditional option of initi-

ating a standard investigation with its corollary focus on case clo-

sure.

264

But a wider array of pathways must be made available.

Piloting of options in the reporting space is already underway in

select police departments around the country.

265

In these depart-

261

For a discussion of truncated sexual assault investigations, see Tuerkheimer, supra

note 34, at 28–36.

262

See F

. B

UREAU OF

NVESTIGATION

, U.S. D

’

T OF

USTICE

, C

RIME IN THE

NITED

TATES

, 2013, at 1 (2014), https://ucr.fbi.gov/crime-in-the-u.s/2013/crime-in-the-

u.s.-2013/offenses-known-to-law-enforcement/clearances/clearancetopic_final.pdf

(providing an overview of various clearance classifications).

263

See supra Section II.B.

264

See supra notes 261–62 and accompanying text.

265

See, e.g., Avery Lill, Oregon Detective Pioneers New Sexual Assault Reporting

Program, NPR (Sept. 2, 2016, 8:02 AM), https://www.npr.org/2016/09/22/491932615/

oregon-detective-pioneers-new-sexual-assault-reporting-program (discussing Oregon’s

“You Have Options” Program). For a listing of the law enforcement agencies participating

in the “You Have Options” Program, which launched in Ashland, Oregon in 2013, see

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1194 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:1146

ments, mirroring aspects of the Traditional Whisper Network, com-

plainants are permitted to relay an account confidentially and without

consequence to the alleged perpetrator.

266

As an alternative, com-

plainants can authorize a limited investigation aimed at assessing not

only the strength of the case (by the gathering of additional evidence),

but also the likelihood that the accused is a serial offender.

267

At any

time, complainants can ratchet up or down the intensity of the investi-

gation and, relatedly, its potential impact on the alleged

perpetrator.

268

By offering options short of full-blown investigation, police

officers are able to better respond to survivors’ varying interests

269

—

interests that are currently being pursued, for the most part, outside

formal reporting channels. For instance, with regard to victim empow-

erment, the confidential reporting alternative gives a survivor time to

consider how she would like to proceed,

270

while at the same time

Report, Y

AVE

PTIONS

ROGRAM

, https://www.reportingoptions.org/report (last

visited Apr. 1, 2019). See generally K

IMBERLY

A. L

ONSWAY

& J

OANNE

RCHAMBAULT

IOLENCE

GAINST

OMEN

’

(EVAWI), A

LTERNATIVE

EPORTING

ETHODS

SSENTIAL

ONCEPTS AND

OMPONENTS

(2015), https://www.evawintl.org/Library/

DocumentLibraryHandler.ashx?id=593 (summarizing commonplace attributes of

alternative reporting mechanisms). See also S

EEK

HEN

PEAK

, https://www.

seekthenspeak.org (last visited Aug. 29, 2019) (offering a digital aid that gives survivors the

option to remain “in control of the information you share, who you share it with, and what

you want to happen with it”).

266

Explore Your Options, Y

AVE

PTIONS

ROGRAM

, https://www.

reportingoptions.org/reporting-options (last visited May 23, 2019) (“An Information Only

report includes any report of sexual assault where at the reporting party’s request no

investigative process beyond a victim interview and/or a complete or partial Inquiry into

Serial Sexual Assault (ISSA) is completed.”); see also infra notes 270–78 and

accompanying text.

267

See Explore Your Options, supra note 266 (explaining that a limited investigation

may go beyond interviewing the victim and assessing whether the accused is a serial

offender to include “interviewing of witnesses and collection of evidence such as a sexual

assault forensic examination (SAFE) kit”).

268

In certain situations, law enforcement agents may be under a legal obligation to pass

along a confidential report—where, for instance, the report involves child abuse

allegations, threatens public safety, or triggers Title IX requirements. See Roles and

Responsibilities of a Participating Law Enforcement Agency, Y

AVE

PTIONS

ROGRAM

, https://www.reportingoptions.org/roles-and-responsibilities (last visited Apr. 9,

2019) (noting that participating law enforcement agencies should take reasonable steps to

inform complainants prior to a report being made when their confidentiality may be legally

impermissible).

269

See supra note 15.

270

Victims often need time to decide how to proceed and may want to speak to family

and friends about the incident before lodging a formal (public) complaint. See Katie Van

Syckle, The Tiny Police Department in Southern Oregon that Plans to End Campus Rape,

(Nov. 9, 2014), https://www.thecut.com/2014/11/can-this-police-department-help-

end-campus-rape.html (describing how the “You Have Options” initiative developed in

response to these needs).

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preserving evidence that could become critical should the case ulti-

mately proceed.

271

Moreover, depending on the listener’s reaction,

describing the assault can prove cathartic for a survivor.

272

Especially

if police officers are freed from the need to immediately lapse into

case building-or-breaking mode, there may be a greater tendency to

validate an accuser when she relates her experience.

273

The desire to protect others can likewise be satisfied by a multi-

pronged reporting system. With even limited information, police may

discover that an individual is suspected of other assaults, increasing

the odds that the alleged perpetrator, if unpunished, will continue to

re-offend.

274

When they join forces,

275

survivors gain the credibility

that often requires numbers.

276

Complainants can also take comfort in

knowing that, regardless of whether a confidential report or partial

investigation is ultimately converted into a full investigation,

277

law

enforcement is able to store reliable intelligence for the future.

278

Apart from enhancing survivor empowerment and group member

protection, alternative formal reporting channels facilitate perpetrator

271

Should a case ultimately proceed to trial, a complainant’s exercise of the confidential

reporting option would allow prosecutors to blunt a typical line of cross-examination that

focuses on delay in bringing allegations to the police.

272

See supra note 152 and accompanying text (discussing the catharsis enabled by

unofficial reporting).

273

See Sirin Kale, The Cop Pioneering a New Approach to Reporting and Investigating

Sexual Assault, V

ICE

(Sept. 29, 2016, 1:21 PM), https://www.vice.com/en_us/article/evg4wn/

the-cop-pioneering-a-new-approach-to-reporting-and-investigating-sexual-assault (quoting

the detective who founded “You Have Options” as explaining: “[W]hat we need to be

saying is, ‘Hey, I recognize that’s stuff you’re not ready to talk about yet, so how about we

just talk about what you can today and we can come to the other stuff later?’”).

274

When an accused individual is identified as a potential serial offender, accusers who

were initially reluctant to proceed with a formal criminal complaint may become convinced

of the need to punish a perpetrator. See supra note 156 and accompanying text; see also

infra notes 316–22 (discussing Callisto’s matching function).

275

See supra text accompanying notes 160–68 (describing how unofficial reporting

channels can generate feelings of solidarity in survivors). When survivors learn of an

accused’s other victims only after recounting the assault (in contrast to the typical

chronology of informal reporting), later attacks on complainant credibility may be

somewhat less effective.

276

See supra note 233 and accompanying text (describing “credibility in numbers”);

infra note 322 and accompanying text (discussing the first-mover reporting disadvantage).

Later in the criminal process, the general prohibition on character evidence at trial tends to

complicate the strength-in-numbers approach to bolstering credibility. See F

. R. E

VID

404(b)(1). The admission of “other acts” testimony for a non-propensity purpose in sexual

assault prosecutions is beyond the scope of this discussion.

277

See supra note 264 and accompanying text (emphasizing that the complainant should

at all times retain this option).

278

See supra Section II.B.2 (discussing the protection rationale for informally

reporting). Outside the sexual assault context, the use of both anonymous tips and

confidential information is standard practice for police departments. The implications for

public safety are complex.

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1196 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:1146

accountability. Providing options brings more reports into the

system,

279

leading to more arrests and more prosecutions.

280

important, if less obvious, the availability of several reporting options

can strengthen cases that enter the system, enhancing the prospect of

a successful prosecution.

281

When survivors come forward with their

accusations early, even if only to lodge a confidential report or to

prompt a partial investigation,

282

corroborative evidence can more

readily be gathered. In addition, liberated from the need to respond to

law enforcement officers bent on case closure, survivors may be

afforded the best opportunity to provide an accurate account.

283

Unlike Whisper Networks, which produce no accountability,

284

and the Courts of Public Opinion, which result in partial accounta-

bility at best,

285

a functioning criminal justice system can hold abusers

to account. Official reporting options that offer survivors flexibility

further this end.

286

As more sexual assault reports enter the system, police and pros-

ecution responses can be expected to improve.

287

This progress will

come from a deepening of law enforcement’s understanding of the

dynamics of sexual violation,

288

especially sexual assault that deviates

from the stranger rape paradigm.

289

Over time, de facto impunity for

279

See Van Syckle, supra note 270 (noting that since the Ashland Police Department

launched “You Have Options,” the number of reports more than doubled).

280

Although we can expect increased reporting to result in more arrests and

prosecutions, it will not likely lead to a proportional rise in arrests and prosecutions. See

supra note 23 (describing gender bias in the criminal justice system). To my knowledge,

researchers have yet to examine the downstream effects of increasing reporting.

281

See J

OANNE

RCHAMBAULT

& K

IMBERLY

A. L

ONSWAY

, D

IRECT

NONYMOUS

EPORTING

: M

ULTIDISCIPLINARY

ROTOCOLS

FFER

LTERNATIVE

PTION FOR

ICTIMS

7–8 (2011) (on file with author) (emphasizing the importance of victim cooperation in

sexual assault cases and explaining why the “victimless” or “evidence-based” approach to

prosecution sometimes used to treat domestic violence cases is not appropriate for

handling sex crimes).

282

See supra notes 266–68 and accompanying text (explaining these alternative

reporting options).

283

See Kale, supra note 273 (describing how, when formal complaints were the only

option, complainants’ first descriptions of sexual violence were not always as accurate as

they could be).

284

See supra note 219 and accompanying text.

285

See supra notes 220–32 and accompanying text.

286

Although an increase in reports might raise concerns for the capacity of any given

law enforcement agency to respond appropriately, it suffices for present purposes to note

that resource allocation will always reflect departmental priorities.

287

See supra Section II.B.5 (discussing how informal reporting can advance institutional

change).

288

See supra notes 182–96 and accompanying text (discussing how informal reporting

can bring about greater epistemic justice).

289

For an early challenge to the stranger rape paradigm, see Estrich, supra note 191, at

1092.

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November 2019] BEYOND #METOO 1197

even the most egregious sexual misconduct

290

will erode, and collec-

tive notions of what counts as criminal can evolve.

291

B. College Campus

As we have seen, college reporting channels are vastly underutil-

ized by student survivors of sexual assault, most of whom never relate

the incident to disciplinary authorities.

292

There are many reasons for

this widespread reluctance to lodge a formal complaint,

293

but because

standard reporting systems do little to address survivors’ concerns,

pervasive underreporting persists.

Universities have adopted a range of procedures designed to

comply with Title IX requirements and, loosely speaking, to advance

their educational mission.

294

Yet across institutions, the rigidity of the

formal reporting process

295

is often a deterrent for victims contem-

plating their options, especially in the immediate aftermath of an

assault.

296

While the formal complaint process must remain in place,

other avenues should be available to meet the needs of those not

willing, or not yet ready, to initiate a full-blown investigation and

adjudication.

297

290

See supra Section I.A (describing the under-enforcement of laws prohibiting sexual

assault); see also Ricardo Lopez, Me Too Founder Says Looming Weinstein Arrest Is

‘Cathartic’ for Survivors of Sexual Assault, V

ARIETY

(May 24, 2018), https://variety.com/

2018/film/news/tarana-burke-harvey-weinstein-1202821447 (quoting Tarana Burke on the

prosecution of Harvey Weinstein as “super cathartic for a bunch of the survivors, or even

survivors who are not necessarily victimized by him”). One Weinstein victim explained her

decision to cooperate with the Weinstein prosecution: “I know how this has changed my

life for the worse. How he took away my self-esteem and personal power. And knowing I

can take it back, and stop him from doing that to another woman, I couldn’t let that go.”

Farrow, supra note 144.

291

See supra Section II.B.4 (discussing the possibility of normative shift).

292

See supra Section I.B.

293

See supra Section I.B.

294

See supra note 83 (describing college reporting procedures).

295

This rigidity may stem in part from legitimate concerns on the part of college

administrators (and their lawyers) regarding compliance with regulations and guidance

under Title IX. See Eric Kelderman, College Lawyers Confront a Thicket of Rules on

Sexual Assault, C

HRON

. H

IGHER

DUC

. (June 25, 2014), https://www.chronicle.com/article/

College-Lawyers-Confront-a/147349 (describing the legal terrain under Obama); see supra

note 81 (describing Title IX enforcement under the Trump Administration).

296

See supra notes 88–89 and accompanying text.

297

A draft of the American Law Institute’s Principles of the Law, Student Sexual

Misconduct: Procedural Frameworks for Colleges and Universities (which has not yet been

approved by ALI membership) is consistent with this approach. The draft (on file with

author) reads: “In order to facilitate reporting of sexual assault and related misconduct,

multiple avenues of reporting and efforts to allow the alleged victims of such misconduct

substantial influence over whether their reporting is made known to the alleged

perpetrators are widely believed to be helpful.” P

RINCIPLES OF THE

, S

TUDENT

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1198 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:1146

Sexual misconduct on campus undermines a victim’s access to an

equal education—it is a problem of sex discrimination, as the gov-

erning legal framework recognizes.

298

Alternative reporting options

should take into account the benefits of unofficial reporting, with a

particular emphasis on the empowering potential of informal com-

plaint.

299

Complaint channels that prioritize catharsis and validation

can help to mitigate the subordinating effects of sexual violation.

For instance, one central aim of any reporting system must be to

provide survivors with confidential support and counseling. While col-

leges have struggled with how widely to impose mandatory notifica-

tion duties,

300

confidential resources (counselors, social workers,

psychologists, health care providers) are exempted from the obliga-

tion to report allegations to the Title IX office. Victims who speak

with confidential resources may of course choose also to report

through the standard channels. But these channels, again, are unat-

tractive to most survivors. More innovative reporting systems can be

designed to embed empowering features.

301

Rather than exclusively

rely on a separate apparatus to provide victims with confidential sup-

port, universities should create a formal complaint channel that can

fulfill this function, while at the same time fostering community pro-

tection, offender accountability, and institutional change.

302

Technology can assist in achieving these ends. For example,

Callisto is a platform created in 2016 “by survivors, for survivors.”

303

It offers users three options, which can be exercised at any time:

create a time-stamped record of an incident, to be stored for future

EXUAL

ISCONDUCT

: P

ROCEDURAL

RAMEWORKS FOR

OLLEGES AND

NIVERSITIES

§ 3.1 reporters’ notes (A

. L

NST

., Discussion Draft 2018).

298

See supra note 19 and accompanying text.

299

See supra Section II.B.1.

300

See Merle H. Weiner, A Principled and Legal Approach to Title IX Reporting, 85

ENN

. L. R

. 71, 73–84 (2017) (describing the pervasiveness of wide-net policies and the

downsides of that approach).

301

The failure on the part of many colleges and universities to provide “amnesty” for

students allegedly assaulted while engaging in a violation of the disciplinary code (for

example, using drugs) is a deterrent to reporting that is worthy of separate attention.

302

See supra Section II.B.

303

See About, C

ALLISTO

, https://stanford.callistocampus.org/about/who-we-are (last

visited Feb. 23, 2019). Callisto’s mission is “to combat sexual assault, empower survivors,

and advance justice. . . . by enabling survivors to make the reporting decision best for them

and by improving the outcome of reports.” Id. Callisto is already partnering with fourteen

institutions of higher education, including Stanford University, the University of Oregon,

and the University of Southern California, and the non-profit is expected to expand.

ALLISTO

, Y

EAR

3: 2017–2018 A

CADEMIC

EAR

EPORT

, at 3, 16 (2018) [hereinafter

ALLISTO

EAR

3 R

EPORT

], https://www.projectcallisto.org/Callisto_Year_3_final.pdf.

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use or deleted;

304

submit the report directly to the school’s Title IX

office;

305

or commit to reporting if another student names (or has

named) the same perpetrator.

306

While Callisto is still in relatively

early stages of implementation,

307

preliminary data suggests that, on

campuses that have adopted the platform, students are creating a

record sooner and more often choosing to relay the report.

308

Several features of the system explain its appeal.

309

To incorpo-

rate the advice of experts on trauma-informed interview techniques,

Callisto’s website bakes in empathy, using language that is “soft, com-

forting, understanding and compassionate.”

310

Users are

“encourage[d] . . . to take breaks so they do not feel pressured to

finish or write something with which they are uncomfortable.”

311

effort is made to “[e]xplain the risk and benefits of using the form for

reporting,”

312

and to “[p]rovide transparency throughout the form.”

313

Overall, Callisto seeks to effectuate its mission—which expressly

includes empowering survivors

314

—with a “survivor-centered

approach [that] increases the chances that a survivor will report, and

304

The creation of the record is guided by a series of prompts meant to elicit details that

will be helpful to any later investigation; instead of sequential questions, users respond to a

“flow of questions [crafted] for memory retrieval and reconsolidation.” See C

ALLISTO

EAR

2: 2016–2017 S

CHOOL

EAR

EPORT

11 (2017) [hereinafter C

ALLISTO

EAR

EPORT

], https://www.projectcallisto.org/Callisto_Year_2_highres.pdf.

305

Callisto claims that reports submitted to the Title IX office through its system “led to

more rapid and thorough investigation and reduced the chances for human error.” Id. at 5.

306

Id. at 3. Notably, if an accused student is named by a second individual, both

complaints are forwarded to the Title IX office. A different matching function model might

inform each accuser about the additional allegation without requiring either to formally

report. Given that protecting others is a main impetus for reporting, students may be

especially likely to report where a perpetrator is believed to be a repeat offender—that is,

where the danger to others is perceived as more urgent. See infra notes 360–61 and

accompanying text.

307

See supra note 303.

308

ALLISTO

EAR

3 R

EPORT

, supra note 303, at 3 (“Survivors who visited Callisto

were six times more likely to report than those who did not.”); see also C

ALLISTO

EAR

EPORT

, supra note 304, at 6 (noting that, “on average, students using Callisto created a

record 3 months after the incident and reported four months after,” as compared to

students in schools without Callisto, who, on average, reported in month eleven).

309

According to its most recent report, “100% of sexual assault survivors who visited

Callisto would recommend it to a friend who was sexually assaulted.” C

ALLISTO

EAR

EPORT

, supra note 303, at 3.

310

Id. at 13. In addition, Callisto uses “light, soft colors, young iconography, and pillowy

drop shadows to create a calming, approachable design.” Id.

311

Id.

312

Id. For users who indicate that they are not “ready” to report, the site provides

information regarding counseling options. Id. at 6, 16.

313

Id.

314

Id. at 3.

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1200 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:1146

that they will experience positive emotional and adjudicative

outcomes.”

315

To augment the odds that a survivor will report, Callisto allows

victims to select a “match” option, which places the account in an

information escrow.

316

If another account names (or has already

named) the same perpetrator, the complainants are notified—in

essence, creating a fully customized network—and a report is for-

warded to the Title IX office. The match can provide added assurance

to each survivor that the incident is “serious,”

317

insofar as the perpe-

trator is an alleged repeat offender.

318

A match can also provide vali-

dation

319

and solidarity,

320

as well as enhance the credibility of

another victim.

321

In short, because the many obstacles to leveling a

sexual misconduct accusation create a “first-mover disadvantage to

reporting,”

322

the matching function works to eliminate this

disadvantage.

315

Id. Whether adjudicative outcomes will improve remains to be seen. In theory,

earlier reporting and more accurate memorializing of a complainant’s account might well

enhance credibility in later proceedings, but there are reasons to be cautious about drawing

this conclusion. In particular, the effects of criminal discovery requirements and student

privacy rules (including the Family and Educational Rights and Privacy Act, or FERPA)

could complicate the adjudicative landscape.

316

See Ayres & Unkovic, supra note 131, at 147 (explaining the role of a matching

escrow agent); see also A

NJANA

JAN ET AL

., C

ALLISTO

: A C

RYPTOGRAPHIC

PPROACH

ETECT

ERIAL

REDATORS OF

EXUAL

ISCONDUCT

1 (2018), https://

www.projectcallisto.org/callisto-cryptographic-approach.pdf (describing Callisto’s

matching escrow technology).

317

See supra note 86 and accompanying text (noting that many survivors choose not to

report because they perceive the incident as insufficiently serious); see also supra note

35–37 and accompanying text (describing a similar dynamic in the criminal justice context).

318

Callisto contends that ninety percent of assaults are committed by repeat offenders,

who perpetrate an average of six assaults. C

ALLISTO

EAR

3 R

EPORT

, supra note 303, at 5.

Research on serial sexual offense is limited and conflicting. See MacKinnon, supra note 19,

at 2053–55 (evaluating the evidence); see also Ian Ayres, Michael Chwe & Jessica Ladd,

Act-Sampling Bias and the Shrouding of Repeat Offending, 103 V

. L. R

. O

NLINE

94, 95

(2017) (arguing that low reporting rates obscure the prevalence of repeat offending).

Regarding its matching system, Callisto reports that about fifteen percent of users who

enter the system are “matched” with a victim of the same offender. What We Do,

ALLISTO

, https://www.projectcallisto.org/what-we-do#campus (last visited May 9, 2019).

319

See supra notes 153–59 and accompanying text.

320

See supra notes 160–68 and accompanying text.

321

See supra note 233 and accompanying text.

322

See Ian Ayres, Is There a First-Mover Disadvantage to Reporting Sexual Assault?,

ORBES

(Oct. 18, 2015, 10:52 AM), https://www.forbes.com/sites/whynot/2015/10/18/is-

there-a-first-mover-disadvantage-to-reporting-sexual-assault (describing survivors’ fear of

“negative social consequences,” concerns that their assaults were not “serious enough to

report,” and confusion over “where to go or who to tell” as obstacles to reporting); see also

Ian Ayres, Meet Callisto, the Tinder-Like Platform that Aims to Fight Sexual Assault,

ASH

. P

OST

(Oct. 9, 2015), https://www.washingtonpost.com/opinions/using-game-theory-

technology-to-fight-sexual-assault/2015/10/09/f8ebd44e-6e02-11e5-aa5b-

f78a98956699_story.html (explaining that survivors often decline to report due to fear of

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In cases not involving known serial offenders, the first-mover dis-

advantage remains untouched.

323

A more global concern is that the

promise of matching reifies a longstanding belief that one woman’s

account alone is not enough to establish a violation.

324

A narrowly

defined “match” option overlooks the commonalities that connect

seemingly disparate sexual assaults, enabling victims, other students,

and college administrators to persist in the view that a single accusa-

tion is suspect.

325

At the same time, it is also likely (albeit not inevi-

table) that, over time, the increased number of complaints generated

by alternative reporting channels

326

will result in greater offender

accountability.

327

If so, more survivors will presumably be encouraged

to come forward.

328

Holding offenders responsible for sexual misconduct is one main

component of a college’s Title IX obligation to its students.

329

But pre-

vention efforts are also crucial to providing a nondiscriminatory edu-

cational environment.

330

In this regard, colleges often turn to campus

climate surveys,

331

which vary considerably in their approach to col-

retaliation, fear of negative social consequences, and fear of being accused of fabricating

their assault).

323

Separate constellations of concern cluster around the system’s reliance on Facebook

for matching and the risk of exposing confidential information—a security threat that

cannot be entirely eliminated by encryption. The cost of partnering with Callisto (or other

similar platforms) may also be an obstacle for some institutions. See Sara Ashley O’Brien,

She Wants Her Rape Reporting Software to Be Universal, CNN B

. (Mar. 31, 2017, 12:44

PM), https://money.cnn.com/2017/03/31/technology/callisto-sexual-assault-software (noting

that Callisto charges a setup fee of $5000 to $10,000, plus an annual subscription).

324

See supra note 233 and accompanying text.

325

Information escrows of this kind may not directly advance the epistemic justice and

norm related functions of informal reporting, although over time they may contribute to

progress on these fronts. See discussion supra Sections II.B.3, II.B.4.

326

See supra note 308 and accompanying text (describing one alternative reporting

channel that has generated more reporting).

327

See supra Section II.B.6.

328

See supra notes 196–97 and accompanying text (identifying a reporting/belief

feedback loop); infra notes 369–70 and accompanying text (describing the relationship

between reporting and accountability in the workplace context).

329

See supra note 19 and accompanying text.

330

See Jake New, ‘Do Not Step Away,’ I

NSIDE

IGHER

(Jan. 26, 2017), https://

www.insidehighered.com/news/2017/01/26/college-leaders-discuss-future-title-ix-sexual-

assault-prevention-efforts (explaining the importance of continued prevention efforts in an

era of relaxed federal enforcement of Title IX).

331

The use of climate surveys was a key recommendation in the 2014 “Not Alone”

report from the White House Task Force to Protect Students from Sexual Assault. See

HITE

OUSE

ASK

ORCE TO

ROTECT

TUDENTS FROM

EXUAL

SSAULT

, N

LONE

7–8 (2014), https://www.justice.gov/ovw/page/file/905942/download. In October 2016, the

Justice Department issued similar guidance for Title IX Coordinators. See Bea Hanson,

Best Practices: Campus Climate Surveys, D

’

T OF

USTICE

(Oct. 14, 2016), https://

www.justice.gov/archives/ovw/blog/best-practices-campus-climate-surveys.

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lecting data.

332

At their best, such surveys can be used to guide the

design of education and safety efforts,

333

but more granular informa-

tion about sexual misconduct incidents, conveyed in near-real time to

the Title IX coordinator, would be additionally valuable.

334

To this end, colleges might consider offering—in addition to a

standard reporting channel

335

and a multi-tiered reporting option

336

—

an anonymous reporting mechanism designed to collect pertinent

information about alleged misconduct, excluding the identity of the

perpetrator.

337

An anonymous report of this kind would not initiate a

formal investigation into any particular individual (who, again, would

remain unnamed).

338

But, along with other similar reports, it could

potentially focus the university’s attention on geographic hotspots,

problematic days and times, patterns of offending, and relevant demo-

graphic characteristics of alleged victims and perpetrators. College

administrators should welcome this particularized data, which could

then be used to target prevention efforts.

In sum, the availability of alternative reporting options on college

campuses can further the goals of institutional change, survivor

empowerment, community protection, and offender accountability.

332

See Jake New, Creating the Right Campus Climate Survey, I

NSIDE

IGHER

(July

29, 2016), https://www.insidehighered.com/news/2016/07/29/campus-climate-surveys-

abound-does-disagreement-over-what-works-best (describing disagreement over the

merits and shortcomings of different campus climate surveys).

333

See E

VER

, S

EXUAL

SSAULT

AMPUS

LIMATE

URVEY

UIDE

: B

EST

RACTICES

ECOMMENDATIONS

, T

EMPLATES

AND

AMPLE

URVEY

3 (2017), https://everfi.com/wp-

content/uploads/2017/04/Sexual-Assault-Campus-Climate-Survey-Best-Practices-

Recommendations-Templates-and-Sample-Survey.pdf (noting that climate surveys can

help campuses “define the problem,” “set appropriate goals,” encourage them “to be more

intentional in their prevention efforts,” deliver “more targeted, impactful, and cost-

effective programming,” and “garner additional resources and broader institutional

commitment”).

334

Callisto reportedly aggregates information for colleges but does not specify the type

of information conveyed, apart from the gender of users, the class standing of users at the

time of the incident, and the time (season and hour) of platform use. See C

ALLISTO

EAR

EPORT

, supra note 303, at 3, 4, 11, 13.

335

See supra notes 292–96 and accompanying text.

336

See supra notes 297–322 and accompanying text.

337

See supra note 120 (discussing the Academic Men List, a spreadsheet containing

allegations of harassment in academia, with named institutions and unnamed

perpetrators).

338

Laws in Minnesota, Connecticut, and Texas require colleges to provide for

anonymous reporting of a sexual assault, including identification of the accused. See Alex

Samuels, Measures Targeting Sexual Assault on College Campuses Get Legislative

Approval, T

. T

RIB

. (May 28, 2017, 7:00 PM), https://www.texastribune.org/2017/05/28/

measures-target-sexual-assault-college-campuses-gets-legislative-appro; Kim Soffen, How

One State Is Giving More Power to Students in Reporting Sexual Assaults on Campus—

Anonymously, W

ASH

. P

OST

(Aug. 2, 2016), https://www.washingtonpost.com/news/

morning-mix/wp/2016/08/02/how-one-state-is-giving-more-power-to-students-in-reporting-

sexual-assaults-on-campus-anonymously.

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But these advantages cannot be realized if most incidents of sexual

misconduct remain outside the purview of those with the responsi-

bility to address it.

C. Workplace

As in the law enforcement context, procedures for reporting

sexual misconduct in the workplace are generally single-tracked,

339

and this rigidity has become ossified.

340

To the extent employers pro-

vide alternative reporting mechanisms, they tend to do so simply by

designating more than one possible recipient for the complaint.

341

(Because a supervisor may also be an offender, employers must iden-

tify multiple complaint recipients.

342

) But this allowance has done

little to incentivize reporting.

343

As we have already seen,

344

the vast

majority of sexual harassment victims never invoke official channels.

For this dynamic to change, established workplace channels

should be reconfigured to reflect the lessons learned from informal

reporting. Women turn to Whisper Networks and the Courts of Public

Opinion because of the benefits they provide (and the costs of the

more established options). A range of workplace reporting options

deliberately crafted to achieve these same ends

345

—and even to

339

See Anti-Harassment Policy and Complaint Procedure, S

’

Y FOR

UMAN

ESOURCE

GMT

., https://www.shrm.org/resourcesandtools/tools-and-samples/policies/

pages/cms_000534.aspx (last visited Apr. 1, 2019) (“Complaints should be submitted as

soon as possible after an incident has occurred, preferably in writing. The HR director may

assist the complainant in completing a written statement or . . . the HR director will dictate

[a] verbal complaint.”).

340

For objections to the legal requirement that, unless they suffer a concrete

employment consequence, victims of hostile work environment harassment must first

report through an internal complaint channel, see Vicki Schultz, Open Statement on Sexual

Harassment from Employment Discrimination Law Scholars, 71 S

TAN

. L. R

. O

NLINE

17,

42–43 (2018).

341

See EEOC T

ASK

ORCE

EPORT

, supra note 96, at 38 (explaining that effective

harassment policies include “[a] clearly described complaint process that provides multiple,

accessible avenues of complaint” (i.e., alternative individuals to whom the complaint can

be made other than the immediate supervisor)).

342

See Allan H. Weitzman & Marissa A. Mastroianni, The Faragher Legacy: Still Going

Strong After Twenty Years of Attacks and Counter-Measures, 68 L

. L.J. 143, 147 (2017)

(“[A]t a minimum, a complaint procedure should ‘encourage victims of harassment to

come forward [without requiring] a victim to complain first to the offending supervisor.’”

(alteration in original) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998))).

343

For a more global critique of “barriers to rights mobilization” by victims of

workplace harassment (sexual and other), see L

AUREN

B. E

DELMAN

, W

ORKING

OURTS

, C

ORPORATIONS

AND

YMBOLIC

IVIL

IGHTS

159–61 (2016).

344

See supra Section I.C.

345

See, e.g., infra note 354 and accompanying text.

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1204 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:1146

extend beyond what informal reporting delivers

346

—can best fulfill

the promise of Title VII.

347

A multi-tiered reporting system might include several avenues for

complaint,

348

depending on the size and organizational structure of

the business.

349

While preserving the traditional reporting pathway,

which allows a victim to formally initiate a full-blown investigation

(typically by the HR department), employers should also offer both

anonymous and confidential reporting options.

For instance, a company might create an anonymous

whistleblower-type hotline specifically meant for reporting harass-

ment.

350

As in the corporate compliance context, where such hotlines

are commonplace,

351

an anonymous report—or a series of reports col-

lected over time—might be sufficiently specific to allow for an

investigation.

352

In the #MeToo era, a variation on this process has unfolded

repeatedly, albeit in an ad hoc manner, as anonymous accusations

made in the Shadow Court of Public Opinion have sparked related

346

See infra notes 370–71 and accompanying text.

347

See supra note 20 (describing Title VII’s protections against sexual harassment).

348

See EEOC T

ASK

ORCE

EPORT

, supra note 96, at 41. The Task Force reported

“broad support for reporting systems that are multifaceted, including a choice of

procedures, and choices among multiple ‘complaint handlers.’” Id. A “robust reporting

system might include options to file complaints with managers and human resource

departments, via multi-lingual complaint hotlines, and via web-based complaint

processing,” along with “various mechanisms for addressing the situation, depending on

the type of conduct and workplace situation.” Id.

349

The Task Force recognized that the operational needs and resources of small

businesses, start-up ventures, and the like, will differ significantly from large, established

employers with dedicated human capital systems or “C Suites of senior leadership.” Id.

Nevertheless, “the principle of offering an accessible and well-running reporting system

remains the same.” Id. Unions can also play an important role in facilitating the reporting

of sexual harassment by ensuring that the employer’s policies are supportive of victims and

fair toward the accused. Id. at 40–41.

350

See Linklaters Responds to #MeToo with Whistleblowing Hotline, L

. F

IRM

EWS

(May 2, 2018), https://lawyerfirmnews.com/2018/05/02/linklaters-responds-to-metoo-with-

whistleblowing-hotline.

351

See Kobi Kastiel, Elements of an Effective Whistleblower Hotline, H

ARV

. L. S

. F.

ORP

. G

OVERNANCE

& F

. R

. (Oct. 25, 2014), https://corpgov.law.harvard.edu/

2014/10/25/elements-of-an-effective-whistleblower-hotline (“[A]n internal whistleblower

hotline is a critical component of a company’s anti-fraud program, as tips are consistently

the most common method of detecting fraud.”). To comply with the Sarbanes-Oxley Act,

“99% of surveyed publicly traded companies offer an anonymous hotline to employees as

a means of reporting suspected unethical or potentially unlawful activity.” Id. There are

obviously important differences between the investigation of sexual misconduct and the

investigation of corporate fraud.

352

Any remedial measures that result would necessarily depend on the findings of the

investigation.

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workplace investigations.

353

Providing a whistleblower hotline—or,

currently in development, an internet-based equivalent

354

—would for-

malize these procedures, allowing all employees the same access cur-

rently afforded those with high-profile accusations. This development

would have the added benefit of signaling that employers are open to

receiving

355

and, wherever possible, acting upon anonymized

information.

356

For victims who prefer to maintain control of their report, at least

at the outset, employer-sanctioned confidential reporting to an online

third-party platform may be an attractive option.

357

Although still in

early stages of application to the workplace, Callisto—a type of infor-

mation escrow, as mentioned above

358

—enables an employee to input

a time-stamped description of the alleged misconduct, which is held in

abeyance unless and until she chooses to share it.

359

To this end, the

platform includes a matching function that notifies victims if another

353

See supra notes 220–23 and accompanying text; see also Paula M. Weber & Caron

Gosling, A Sexual Harassment Sea Change for Employers?, P

ILLSBURY

INTHROP

HAW

ITTMAN

LLP (Jan. 12, 2018), https://www.pillsburylaw.com/en/news-and-insights/a-sexual-

harassment-sea-change-for-employers.html (“[S]ocial media supercharges the potential for

sexual harassment allegations against work colleagues and could lead to consequences for

employers who fail to act quickly and appropriately.”).

354

See, e.g., Dwoskin & McGregor, supra note 118 (explaining how the website and app

tEQuitable offers employees a channel for confidentially discussing complaints while

providing employers with data that allows them to “uncover systemic patterns” and

“improv[e] . . . workplace culture”); Laurie Segall, Startup Offers Anonymous Harassment

Reporting Tool, CNN B

. (Nov. 16, 2017, 9:20 AM), https://money.cnn.com/2017/11/15/

technology/allvoices-sexual-harassment-reporting-tool/index.html (describing AllVoices, a

third party platform that allows employees to anonymously report harassment directly to

the company’s CEO or board).

355

See Palmer Morrel-Samuels, Getting the Truth into Workplace Surveys, H

ARV

. B

., Feb. 2002, https://hbr.org/2002/02/getting-the-truth-into-workplace-surveys (noting

that companies can benefit from anonymous workplace surveys, although many

assessments are poorly designed).

356

The investigation would likely rely on interviews with multiple employees with

whom the alleged harasser works (any one of whom, unbeknownst to HR, could be

responsible for the anonymous report).

357

The workplace application of Callisto is currently being piloted in the tech space. See

supra notes 316–22 and accompanying text; see also Lux Alptraum, Can Callisto

Transform How Silicon Valley Deals with Sexual Harassment?, V

ERGE

(Apr. 17, 2018, 1:54

PM), https://www.theverge.com/2018/4/17/17247566/callisto-platform-silicon-valley-sexual-

harassment.

358

See Ayres & Unkovic, supra note 131 (explaining information escrows).

359

The EEOC has recognized the potential merits of such “information escrow”

systems. See EEOC T

ASK

ORCE

EPORT

, supra note 96, at 41 n.180 (“[We] encourage

employers and other stakeholders to seek out and explore new and creative methods like

these for the prevention of harassment, and encourage researchers to further examine

escrow systems and gather evidence of their utility.”).

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employee identifies the same perpetrator,

360

on the theory that an

employee will be more willing to pursue a formal complaint if joined

by a fellow survivor.

361

If well implemented, each of these alternative complaint mecha-

nisms—anonymous reports to HR or management and confidential

reports to a third party, held in escrow—can satisfy many of the func-

tions currently served by Whisper Networks and the Courts of Public

Opinion.

First, with respect to victim empowerment, multiple avenues for

complaints increase the likelihood that accusers will be willing to iden-

tify and describe their abuse, thereby enhancing the prospect of

catharsis.

362

Second, procedures that disaggregate the memorialization

of an accusation from any ensuing investigation can more readily vali-

date the victim’s experience and her decision to report the incident.

363

Third, with respect to empowerment, the matching feature of a third-

party reporting platform can boost solidarity,

364

as can a fruitful inves-

tigation launched in response to an anonymous tip.

365

While not as communal as Whisper Networks or as public as the

Courts of Public Opinion, anonymous and confidential reporting sys-

tems can also advance epistemic

366

and normative

367

conceptions of

harassment. Apart from leading to more workplace investigations,

these alternative forms of reporting may facilitate more expansive

thinking about the very meaning of harassment.

368

Information about

what is occurring in the workplace, regardless of whether it leads to a

formal complaint, is essential for any institution committed to moni-

toring and improving its culture. More flexible reporting channels can

ultimately occasion new understandings on the part of employers and

employees alike.

369

360

See supra notes 316–22 and accompanying text (discussing the platform’s matching

function).

361

See supra notes 233, 274, 317 and accompanying text (analyzing the benefits of

matching).

362

See supra notes 152–53 and accompanying text.

363

See supra notes 154–57 and accompanying text.

364

As compared to the Traditional Whisper Network, matching systemizes the process

that allows victims of the same offender to find one another, but it does not surface

patterns of harassment that extend beyond an individual perpetrator.

365

See supra notes 350–52 and accompanying text.

366

See supra Section II.B.3.

367

See supra Section II.B.4.

368

See Schultz, supra note 92, at 27 (“To create lasting change requires an informed

theory of sexual harassment: What is harassment? What’s in it for the harassers? What

causes harassment? What must change?”).

369

On the difficult problem of workplace secrecy and recent legislative efforts to

address it, see Stephanie Russell-Kraft, How to End the Silence Around Sexual-Harassment

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Perhaps the greatest appeal of alternative complaint channels lies

in the promise of accountability—both individual and institutional. In

the workplace setting, the two are inexorably linked. As the EEOC

Task Force explained: “An employer that has an effective anti-

harassment program, including an effective and safe reporting system,

a thorough workplace investigation system, and proportionate correc-

tive actions, communicates to employees by those measures that the

employer takes harassment seriously,” thereby incentivizing reporting

and enabling the employer to put an end to the misconduct.

370

Without overhauling workplace reporting, this positive cycle will

remain aspirational. Whisper Networks in particular cannot induce

durable institutional change. Quite the opposite: Absent viable chan-

nels for complaint, women are presented with a seemingly intractable

status quo—one defined by steep and gendered hierarchies that

enable a range of sexual harassment while protecting perpetrators

from consequences. Unless the current backdrop of pervasive non-

reporting is upended, women will continue to be reminded that they

are less than equal in the workplace.

One female lawyer, who practiced for decades with multiple law

firms, described this reality as follows:

There is a cultural phenomenon in large law firms where some of

the more senior women seek to protect the younger female targets

from the worst behavior of their male colleagues. This protective

behavior can be both good and bad. In my experience, it prevents

the most severe and immediate harm—rape or assault—but also

sends all the wrong messages because no one is openly confronting

the bad guy or making him stop. I learned as a very young associate

that unwanted sexual attention from men in a position of power was

going to be a normal part of my professional life, that it was a

normal part of being a woman in a law firm, that it was not accept-

able to confront it directly, and that not only was I powerless to

make it stop, but that none of the women who did their best to warn

me behind closed doors had any power to make it stop. In the end,

that’s an extremely belittling message. Even the women who would

otherwise be my role models had no power in any meaningful sense

because they couldn’t stop their male partners from touching me

inappropriately or assure me that my career would be safe if I stood

up for myself. If I wanted a successful career as a lawyer, I had to

learn how to bob and weave, while pasting a smile on my face, so

Settlements, N

ATION

(Jan. 12, 2018), https://www.thenation.com/article/how-to-end-the-

silence-around-sexual-harassment-settlements.

370

EEOC T

ASK

ORCE

EPORT

, supra note 96, at 34 (emphasis added). The Report

calls this “a positive cycle that can ultimately reduce the amount of harassment that occurs

in a workplace.” Id.

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that no man’s ego would get bruised in the process of me refusing to

have sex with him.

371

Formal reporting channels, successfully reengineered, hold the

promise of more effectively challenging this systemic discrimination.

For victims of sexual harassment, workplace equality requires, at min-

imum, feasible mechanisms for complaint.

ONCLUSION

Victims of sexual misconduct who are newly stepping forward to

report their abuse are reshaping the #MeToo landscape. As women

find strength in numbers and a growing cultural responsiveness to

their claims, the widespread impetus to disclose misconduct is intensi-

fying. In this rapidly shifting environment, the rise of informal accusa-

tion has gone little noticed.

Unless we are willing to accept a state of perpetual dormancy in

the law governing sexual misconduct,

372

the pathways that activate

legal redress must be reimagined.

373

By creating a range of options,

institutions can replicate many of the benefits of informal reporting,

which in turn will lead more survivors to invoke formal systems. Over

time, greater openness to allegations of sexual misconduct outside the

law should produce greater receptivity to allegations of sexual miscon-

duct within the law.

Women have always found outlets for recounting their exper-

iences of abuse. Whether behind closed doors, in small groups of simi-

larly situated women or now, increasingly, in wide-open spaces using

hashtags and mainstream media, survivors are insisting that their vio-

lation matters. The law should no longer remain, for all practical pur-

poses, outside their reach.

371

Unsolicited E-mail to author, supra note 175; see also Pogrebin, supra note 173

(describing women in Richard Meier’s firm as having “been disturbed by a sense of

helplessness” induced by the fact that Meier’s behavior “was common knowledge . . . but

no one seemed to have the power to stop it”).

372

See supra note 22 and accompanying text.

373

It is worth underscoring that substantive law reform is also necessary, but—in

contrast to the imperative that has been identified here—this is widely discussed in existing

scholarship. See supra note 18.