In the age of #MeToo, victims of sexual misconduct are coming forward en masse to allege abuse, finding strength in numbers and a growing cultural responsiveness to their claims. Facilitated by innovative technologies, #MeToo is sparking the creation of new channels for reporting abuse—channels intended to bypass the laws and rules that prohibit sexual misconduct. To make sense of this unexamined development, a proposed taxonomy classifies informal avenues of complaint into four distinct categories: the Traditional Whisper Network, the Double Secret Whisper Network, the Shadow Court of Public Opinion, and the New Court of Public Opinion. While unofficial reporting can advance important ends, the rise of informal accusation also raises concerns that bear directly on the need to enhance formalized accountability for sexual assault and harassment.

I. Introduction

The contemporary movement known as #MeToo emerged in early October 2017 when allegations of sexual assault and harassment against Harvey Weinstein were reported by the New York Times and the New Yorker.1 As the Weinstein story developed in the coming weeks and months, the number of allegations publicly leveled against him multiplied.2 The media quickly intensified reporting on a range of sexual misconduct3 by other high profile men.4 Soon the coverage grew to encompass sexual harassment and assault across disparate industries and institutions, including publishing, fashion, music, sports, entertainment, architecture, advertising, comedy, philanthropy, hospitality, retail, farm, factory, academia, technology, media, church, and politics.5 By the close of the year, #MeToo had touched off a widespread reckoning with a vast continuum of sexual abuse.6

To much of the general public, the realities of sexual violation—mostly experienced by women7—was news. It was hardly news, however, to members of the impacted communities. Rather, survivors and those vulnerable to abuse were sharing information all along. Harvey Weinstein’s decades of predation were an “open secret” in Hollywood well before the New York Times broke the story,8 and the same can be said for many, even most, of the scandals that have erupted since.9 It turns out that women were indeed reporting their abuse; they were simply doing so in uncharted ways. #MeToo has exposed a large decentralized network of information exchange.

At the same time, facilitated by expanding technologies,10 #MeToo has catalyzed the creation of new channels for reporting sexual misconduct without directly invoking the legal system or law-adjacent institutional structures.11 I will call these mechanisms for reporting sexual misconduct12 that bypass formalized mechanisms of accountability “unofficial reporting channels” or “informal reporting channels.”13

After mapping the unofficial pathways for complaints that have emerged in the #MeToo era, I consider the normative implications of the new sexual misconduct reporting. My focus here is not on the woeful inadequacies of formal mechanisms for addressing sexual assault and harassment—inadequacies that prompt women to relay their abuse through back channels.14 Instead, without minimizing the importance of functions served by informal reporting,15 I argue that its proliferation should raise concerns for those committed to improving our societal response to allegations of sexual assault and harassment. By crystallizing these concerns, my hope is to advance a conversation about how best to facilitate lasting change.

This Article proceeds as follows. Part I proposes a taxonomy that classifies informal avenues of complaint into four distinct categories: the Traditional Whisper Network, the Double Secret Whisper Network, the Shadow Court of Public Opinion, and the New Court of Public Opinion. Part II identifies a trio of dangers that surround the emergence of an informal complaint system. These hazards include a lack of accountability for those who perpetrate abuse, the absence of process and the strategic deployment of that absence by defenders of the status quo, and the weaponization of defamation law in service of silencing would-be accusers. By surfacing significant limitations of an unofficial reporting regime, this discussion underscores the need for reform to activate a largely forsaken law of sexual misconduct.

II. A Taxonomy of Informal Reporting Channels

Women have long chosen to share their accounts of sexual abuse with one another rather than report through formal channels.16 Over time, “whisper networks” have operated in a largely clandestine manner; the communications shared within them, in addition to the networks themselves,17 have been hidden from the view of all except intended recipients. But the secrecy of a network’s very existence, and even the content of information exchanged, is not an inevitable feature of unofficial reporting channels. One significant feature of the #MeToo era is that whisper networks have exposed themselves to outsiders for the first time.18

As important, #MeToo has spawned the creation of new kinds 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 ambitious ends—a development that has been greatly facilitated by technology.19 As new reporting pathways emerge, it is clear that innovation along these lines will continue in the #MeToo era.

Now is an opportune moment to consider how informal reporting channels operate.

A. Variables

On close inspection, unofficial conduits for reporting sexual misconduct vary along three key dimensions. First, can the accuser report anonymously or must the accuser identify herself?20 Second, is the accused named or does the accused remain unidentified?21 Third, is access to the channel restricted or is it open to all?22 After discussing each variable in turn, I introduce a taxonomy of informal reporting that uncovers several instructive patterns. This analysis suggests that whisper networks are evolving in ways that are significant, especially from the vantage of law.

1. Accuser anonymity

The oldest and most familiar form of a whisper network features face-to-face information exchange.23 Women share their accounts of sexual violation with one another in person (and did so well before there was an internet); these reports of abuse can then be further disseminated to other members of the networked group.24

Until the #MeToo era, group outsiders were generally not privy to the existence of whisper networks. This may be changing, however, as victims begin to perceive a greater societal willingness to believe allegations of sexual misconduct and to condemn it. Increasingly, members of traditional whisper networks—some of which have been in operation for decades—are revealing how and why they channeled accounts of abuse.

The Glass Ceiling Club, for instance, was a group of female investment bankers who began convening in the 1990s to talk about “how to make the workplace more female friendly.”25 As one participant recently explained, “our conversations would revert to sharing facts we knew about the men we worked with, [and] yes, it was mostly the same men who preyed on young women.”26 Among the reasons for Glass Ceiling Club members to divulge their experiences with sexual harassment was to help protect other women. “Survival hints”—strategies like staying on the public trading floor when engaging with a known harasser—“were shared pretty freely.”27

Another decades-old, person-to-person whisper network centered on Richard Meier, who stands among the world’s most prominent architects.28 In April 2018, multiple allegations of sexual misconduct against Meier were publicly reported, along with details about a decades old whisper network that enabled women to share information about his abuse.29 Beginning in the 1990s, female employees created “‘a kind of underground in the office that functioned to warn people about what they could expect,’”30 as well as to offer safety in numbers.31 When one woman alleged that Meier sexually assaulted her, she disclosed this to other women at the firm; “‘it turned out that everybody had a story.’”32 Yet most victims of Meier’s abuse did not report the abuse through formal channels.33

The classic version of the whisper network exists across a wide swath of workplaces and other contained settings.34 But alongside it, a different model—one that features an anonymous accuser—is becoming more commonplace. To be sure, the anonymous accuser model is not entirely without precedent.35 In 1990, for example, female students at Brown University generated a list on several bathroom walls of men who allegedly raped them;36 the same tactic has been used on college campuses periodically since then (including at Brown in April 2017).37 But technology has enabled the anonymous accuser version of the whisper network to spread well beyond the confines of universities, making it more ubiquitous than ever before.38

A recent example to have publicly materialized, albeit not by design,39 is the Media Men List (or “Shitty Media Men List,” as it was originally conceived).40 According to its creator, former New Republic editor Moira Donegan, the “anonymous, crowdsourced document was a first attempt at solving what has seemed like an intractable problem: how women can protect [them]selves from sexual harassment and assault.”41 Donegan used a Google spreadsheet to collect “a range of rumors and allegations of sexual misconduct, much of it violent, by men in magazines and publishing.”42 Although the document was meant to be private in the sense that intended recipients were women in the industry43—that is, women in a position to warn or be warned about their predatory colleagues—it quickly went viral and was then made public.44 Before Donegan removed the document from the web, more than seventy men had been anonymously named as perpetrators of sexual misconduct, ranging from inappropriate behavior to criminal acts.45

In sum, networks featuring anonymous accusers are proliferating in the age of #MeToo.46 With the help of technology, women are increasingly able to share accounts of sexual violation without divulging their identities.47

2. Identification of accused

Unofficial reporting channels are meant to create safe spaces for women to relate their experiences of sexual misconduct. For the most part, these channels allow participants to identify the accused by name; indeed, the need for a safe space is intricately connected to this very function.

The notable exception is a publicly available spreadsheet that collects accounts of sexual misconduct in academia while expressly prohibiting the naming of an accused.<48 The creator of the spreadsheet, Karen Kelsky, is a former professor who decided in the wake of the Harvey Weinstein scandal, “somebody needs to do this in the academy.”49 Although the spreadsheet does not allow identification of either alleged victims or alleged perpetrators,50 it was designed to include the names of universities and departments, along with other pertinent information.51

The spreadsheet was published in December 2017; it quickly went viral and now contains nearly 2500 entries.52

3. Channel access

As whisper networks evolve from the “face-to-face” sharing model,53 important questions of access are arising. In their traditional incarnation, whisper networks are only open to a select group of insiders,54 resulting in the exclusion of those who might have equal or greater need for the intelligence, including members of marginalized groups.55

This dynamic is beginning to change as technology facilitates the wider dissemination of victims’ accounts.56 Information can now be readily shared with a larger group of recipients who satisfy delineated criteria.57 Informal reporting has moved beyond the in-person paradigm, granting access to a range of intended recipients, including company co-workers,58 industry employees,59 and sorority sisters.60

Accusations are even being disclosed to the public writ large—in other words, informal complaint channels can allow unrestricted access.61 As the #MeToo movement reshapes societal responses to allegations of sexual misconduct,62 channels for informal reporting are becoming almost unrecognizable from the whisper networks of old. These new channels are entirely open and increasingly commonplace.

B. Whisper Networks and Courts of Public Opinion

Unofficial channels for reporting sexual misconduct can best be categorized along two key dimensions: one is whether the accuser is anonymous; the other is whether access to the channel is restricted (or open to the public).

The resulting classification is depicted as follows:

 

To understand the unofficial reporting regime that has taken shape in the #MeToo era, it is useful to begin with the Traditional Whisper Network. We then turn to the remaining matrixes, which I call the Double Secret Whisper Network;63 the Shadow Court of Public Opinion;64 and the New Court of Public Opinion.65

1. Traditional Whisper Network

Whisper networks enable women to share their accounts of sexual violation with select insiders.66 The content of the information (and often, the existence of the network itself) remains secret—at least to the extent outsiders are not privy to it, as is generally the intent of those within the network.67 But, in contrast to the Double Secret Whisper Network, which allows for anonymous reports, networks in this category feature a known source of the accusation.68

The classic version of the Traditional Whisper Network entails face-to-face information exchange.69 This in-person sharing of allegations is hardly obsolete; anecdotal evidence suggests that whisper networks continue to thrive in many, perhaps even most, workplaces and educational settings.70

But because technology has enabled a more robust dissemination of information, no longer must the Traditional Whisper Network rely on face-to-face encounters. Where large or dispersed populations wish to report sexual misconduct within a select community—a particular challenge given changes in workplaces and on college campuses—technology can serve an important function in enhancing the adequacy of distribution channels. Updated formulations of the Traditional Whisper network (for instance, invitation-only Facebook groups)71 enable women identified by name to share their accounts across geographic distance but still within the confines of a private space.

2. Double Secret Whisper Network

The Double Secret Whisper Network relies on technological innovation to anonymize the accuser.72 Not only is the content of the information kept secret from network outsiders; the identity of the reporter is also kept secret from network insiders.

This type of network is becoming more commonplace. The Media Men List, which was intended only for women in media,73 is just one example of how Google Docs is being used to facilitate the spread of anonymous allegations within a closed network.74

Sparked by the #MeToo movement, a wave of startups is creating apps to assist with anonymous information distribution on campus and in the workplace.75 This next generation of the Double Secret Whisper Network allows users to share their accounts of abuse with select audiences but in more technologically sophisticated ways. For instance, Blind enables employees at more than one hundred companies, including Amazon, Microsoft, and Google, to chat anonymously about workplace issues, including, often, sexual harassment and assault.76

A somewhat different iteration of the Double Secret Whisper Network—one designed as an information escrow77—narrows the intended audience of an anonymous report to victims of the same perpetrator. Rather than share their accounts with would-be targets (that is, designated group members), users disseminate their information even more selectively.78

3. Shadow Court of Public Opinion

Open access channels for reporting abuse are an alternative to the network model. As with restricted access channels, publicly available channels can allow allegations to be made anonymously,79 which places them in the rather cloaked domain of the Shadow Court of Public Opinion. Although anyone can access these forums—indeed, far-flung distribution is intended—the accuser remains unidentified, making the information more nebulous.80

Such avenues for sharing accounts of sexual misconduct are seemingly widespread.81 Of late, with #MeToo’s focus on workplace harassment,82 allegations often cluster around particular industries.83 In comment threads84 and Instagram posts,85 both of which allow public access to anonymous accusations, unnamed women have recently exposed alleged predators in children’s literature,86 advertising,87 and fashion.88 Notwithstanding the controversial nature of these platforms89 and questions of legal liability that surround them,90 for accusers intent on publicly exposing their abuser without identifying themselves, the Shadow Court of Public Opinion beckons.

4. New Court of Public Opinion

In the past two years, the #MeToo movement has made significant inroads in attacking longstanding societal dismissal of sexual misconduct claims.91 One way to understand this dynamic is that it is at once fueled by, and fueling, public allegations of sexual violation. What catapulted #MeToo was blockbuster reporting on the Harvey Weinstein story.92 The women in those accounts, many of whom were willing to speak on the record, came forward after years, even decades, to report their abuse unofficially. Since then, many women with allegations against high-profile men—women who, for myriad reasons, chose not to report through formal legal channels93—have done the very same, forsaking anonymity (unlike those who make public accusations in the Shadow Court of Public Opinion) in the New Court of Public Opinion.94

Twitter—with its use of a hashtag that gave the #MeToo movement its name—is also emerging as a repository for sexual misconduct accusations.95 As the movement advances, we can expect that survivors will more routinely bring their allegations to the New Court of Public Opinion.96

III. Informal Reporting Dangers

The sudden ascendance of an unofficial reporting regime is, in many ways, a mark of progress. Newfound willingness on the part of countless women and men to complain about sexual misconduct indicates that the benefits of informally reporting abuse—anonymously or not—are increasingly perceived as outweighing the costs. Nothing that follows is meant to deny the functionality of unofficial reporting channels in a world where official systems for redressing sexual misconduct are largely ineffectual.97 But there are risks associated with the rise of informal accusation, particularly if official mechanisms for processing allegations of abuse do not simultaneously evolve so as to become, sooner or later, the primary repositories for these allegations.

The dominance of unofficial reporting is best understood as a problem of transition.98 Rather than remain a dominant feature of our societal approach to sexual assault and harassment, the proliferation of informal complaints should underscore the need to invigorate our systems of formalized redress.99 The alternative scenario—perpetual lopsidedness in the official/unofficial response ratio100—raises several sets of concerns.

A. Limited Accountability

Whisper networks sacrifice the pursuit of offender accountability in the interest of achieving other benefits. For women who report through restricted access channels, regardless of whether they did so anonymously, this tradeoff is generally accepted as an inherent feature of the network model.101 Since the recipients of the report are members of the vulnerable community, rather than those in positions of power over the abuser, it is highly unlikely that any mechanisms of accountability will be triggered by a victim’s unofficial complaint.

The growing use of open access channels complicates this account. When named women come forward in the New Court of Public Opinion, consequences may result.102 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.103 In the age of #MeToo, men initially accused of misconduct in the Courts of Public Opinion (which include both the Shadow Court of Public Opinion104 and the New Court of Public Opinion)105 have faced job loss,106 suspension,107 revocation of honors,108 and economic penalties imposed by businesses and consumers alike.109 They have also been disgraced in the eyes of family, friends, and the general public, although the sustained effects of sexual abuse-based stigma remain to be seen.110

Momentarily bracketing concerns related to process,111 it is useful to observe that the consequences stemming from the Court 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. And so on.

My aim here is not to elaborate a thick meaning of accountability but to gesture at the kinds of considerations that might come into play when we assess what is missing even when unofficial reporting yields consequences.112 Further to this concern, many commentators have presupposed that individual accountability can be analyzed without regard to the relevant legal framework. In my view, it cannot. Although not all sexual misconduct is regulated by law, much of the misconduct being disclosed in the #MeToo era is prohibited by criminal law, tort law, Title IX, Title VII, or some combination. When this conduct results in only extra-legal consequences, there is a troubling gap between the available formal remedy and the outcome imposed instead. In other words, the measure of accountability cannot be abstracted from what is dictated by our system of laws.

In the Courts 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,113 resort to traditional media outlets is typically not an option.114 In short, those especially vulnerable to workplace sexual misconduct—women of color and women in low-wage jobs—are cut off from mechanisms of informal reporting that, among the unofficial options, may offer the greatest hope of prompting offender accountability, however meager.115

B. Process Void (and Its Strategic Deployment)

Alongside the resurgence of the #MeToo movement, unmistakable signs of resistance or “backlash” have emerged.116 Among the primary drivers of this opposition is a concern for innocent men tarnished without the benefit of a fair process. This fear of false allegations has become more widespread in the time of #MeToo;117 increasingly, it is deployed to discredit the movement as a whole.118

It is not only politicians and commentators on the right who have expressed a concern for the lack of process that attends informal reporting.119 Many progressives worry about a world in which established procedures for investigating and adjudicating allegations of abuse are supplanted by pervasive public shaming and vigilantism.120

In evaluating the strength of process related arguments, it is important to carve out the category of cases where an informal report initiates a formal investigative process, which then results in a meaningful sanction. Even when official procedures are triggered in this arguably unorthodox manner—that is, through unofficial complaint—process norms have been vindicated.121

Those who decry the absence of process in the Courts of Public Opinion might remain concerned about cases that bypass entirely mechanisms of formal investigation. As I have discussed, these cases tend to yield a limited set of consequences for the accused abuser.122 And many, if not most, of these consequences have followed some acknowledgement of wrongdoing on the part of the man accused. Yet when it comes to men who do profess their innocence, the shaming function potentially served by informal reporting in the Courts of Public Opinion is itself a source of considerable angst.123

As a normative matter, the extent to which men should be shielded from public accusations of sexual misconduct (and the stigma that may result) is subject to debate.124 Unless the status quo changes, recognition of this entitlement would exist in deep tension with not only free speech norms but also the reality that formal complaint processes are often stacked against the accuser.125

At the same time, the procedural void that characterizes unofficial reporting matters. It matters strategically insofar as it powers opposition to #MeToo. It also matters substantively, since neutral investigative procedures are of independent value.126 Moving forward, efforts should increase official reporting in relation to unofficial complaint, answering legitimate process concerns.127 So too might this blunt the #MeToo backlash that is driven by incipient panic over mobs of angry, lying women eviscerating innocent men.

C. Weaponization of Defamation Law

When a person makes an unofficial allegation of sexual misconduct, she or he becomes the potential target of a defamation claim by the individual accused.128 With the ascendance of complaint in the Courts of Public Opinion, this threat has grown far more significant. To be sure, if an allegation of abuse is truthful,129 a defamation defendant should ultimately prevail.130 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 means that litigation costs in this area are relatively uncertain.131

In the face of this uncertainty, the fact that so many women are using social media to name their alleged abuser is, on first glance, puzzling.132 One simple explanation for the ubiquity of informal reporting is that its benefits133 are perceived as sufficient to outweigh the prospect of litigation and its attendant costs. It is not clear, however, that the risk of legal liability is typically included in accusers’ calculus.

This may change with the filing of the first high-profile defamation suit in the #MeToo era.134 In October 2018, 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 Jane Does for $1.5 million.135 Elliott’s complaint alleges that he was defamed by the knowing and malicious publication and circulation of false allegations.136 The lawsuit immediately garnered national media attention.137

Whether Elliott ultimately prevails—or even survives a motion to dismiss138—his complaint spotlights the jeopardy that attends unofficial reporting. With the ascendance of the Shadow Court of Public Opinion and the New Court of Public Opinion, allegations that once were confined within restricted access channels (the Traditional Whisper Network and the Double Secret Whisper Network) can be disseminated in ways that make accusers especially ripe targets for libel actions. Elliott’s lawsuit not only impacts Donegan,139 but also the Jane Does who may now be “unmasked.”140 Importantly, the suit has the potential to deter accusers around the country who may be contemplating a public accusation of sexual misconduct.141 In essence, the defamation claim targets the very engine of #MeToo—unofficial reporting channels.

Compounding the chilling effects of being named as a defamation defendant142 is an unsettled doctrinal landscape that complicates efforts to predict a legal outcome or even whether litigation will reach the expensive and often grueling discovery stage.143 Apart from ambiguities surrounding the law of defamation,144 a suit like Elliott’s—that is, one that involves anonymous allegations, or allegations aggregated online by a third party, or both—raises at least two questions that continue to vex courts.145 First, when can a defendant claim immunity under Section 230 of the Communications Decency Act, which generally protects an entity from liability for third-party content, provided the entity does not at least, in part, develop or create the allegedly defamatory content?146 And, second, when can anonymous speakers who are sued prevent their identities from disclosure, thereby protecting accusers’ independent interests in preserving anonymity and foreclosing legal liability?147

For the anonymous sexual abuse complainant148 whose identity is revealed in the course of defending a defamation claim—as well as for the accuser named from the outset—the defense of truth may allow for ultimate vindication. Even so, the promise of a defamation verdict for the defendant hardly seems satisfying. In an ironic twist, a survivor who eschewed formal reporting channels may ultimately find herself in a courtroom, 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 looming in the background, no survivor could be faulted for deciding to forsake unofficial reporting altogether and simply keep silent about her abuse.

IV. Conclusion

The costs and benefits of divulging abuse have begun to shift in appreciable ways. Assuming this trajectory continues, we will surely see greater activity in the matrixes 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. The proliferation of unofficial reporting in the #MeToo era reflects and portends progress. Yet the continued rise of informal reporting against the backdrop of a mostly dormant law of sexual misconduct is of concern. A meaningful societal response to sexual misconduct must entail a commitment to activating formal mechanisms of accountability.

Tags