41734 nyu_94-5 Sheet No. 47 Side B 10/28/2019 11:39:54 \\jciprod01\productn\N\NYU\94-5\NYU503.txt unknown Seq: 1 28-OCT-19 11:04 BEYOND #METOO DEBORAH TUERKHEIMER* 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. INTRODUCTION ................................................. 1147 R I. FORMAL CHANNELS FOR (NOT) REPORTING SEXUAL MISCONDUCT ........................................... 1151 R A. Criminal Justice System ............................. 1153 R B. College Campus..................................... 1159 R C. Workplace .......................................... 1163 R II. THE WORKINGS OF UNOFFICIAL ACCUSATION .......... 1167 R A. Unofficial Reporting Channels: A Taxonomy ....... 1168 R 1. Traditional Whisper Network ................... 1168 R 41734 nyu_94-5 Sheet No. 47 Side B 10/28/2019 11:39:54 2. Double Secret Whisper Network ................ 1169 R 3. Shadow Court of Public Opinion ............... 1171 R 4. New Court of Public Opinion ................... 1172 R B. A Functional Analysis of Unofficial Reporting ...... 1174 R 1. Victim Empowerment ........................... 1174 R 2. Group Member Protection ...................... 1177 R 3. Epistemic Justice ................................ 1179 R 4. Norm Evolution ................................ 1181 R * 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 41734 nyu_94-5 Sheet No. 48 Side A 10/28/2019 11:39:54 \\jciprod01\productn\N\NYU\94-5\NYU503.txt unknown Seq: 2 28-OCT-19 11:04 November 2019] BEYOND #METOO 1147 5. Institutional Change ............................. 1184 R 6. Offender Accountability ......................... 1185 R C. The Future of Unofficial Reporting: A First Assessment .......................................... 1188 R III. TOWARD A NEXT GENERATION OF FORMAL REPORTING CHANNELS ................................. 1191 R A. Criminal Justice System ............................. 1192 R B. College Campus..................................... 1197 R C. Workplace .......................................... 1203 R CONCLUSION ................................................... 1208 R INTRODUCTION 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,1 catalyzed the #MeToo movement.2 As allegations against Weinstein multiplied in the coming weeks and months,3 the media intensified its focus on sexual misconduct4 by other powerful men.5 Soon the coverage of misconduct ranging from 1 See Jodi Kantor & Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades, N.Y. TIMES (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, NEW YORKER (Oct. 10, 2017), https://www.newyorker.com/news/news-desk/from-aggressive-overtures-to-sexual- assault-harvey-weinsteins-accusers-tell-their-stories. 2 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. TIMES (Oct. 20, 2017), https:// www.nytimes.com/2017/10/20/us/me-too-movement-tarana-burke.html. For a reflection on 41734 nyu_94-5 Sheet No. 48 Side A 10/28/2019 11:39:54 when a protest campaign like #MeToo becomes a movement, see Beverly Gage, When Does a Moment Turn into a ‘Movement’?, N.Y. TIMES MAG. (May 15, 2018), https:// www.nytimes.com/2018/05/15/magazine/when-does-a-moment-turn-into-a-movement.html. 3 See Sara M. Moniuszko & Cara Kelly, Harvey Weinstein Scandal: A Complete List of the 87 Accusers, USA TODAY (Oct. 27, 2017), https://www.usatoday.com/story/life/people/ 2017/10/27/weinstein-scandal-complete-list-accusers/804663001. 4 “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,’ FIVETHIRTYEIGHT (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). 5 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. TIMES (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 41734 nyu_94-5 Sheet No. 48 Side B 10/28/2019 11:39:54 \\jciprod01\productn\N\NYU\94-5\NYU503.txt unknown Seq: 3 28-OCT-19 11:04 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.6 By the close Seelinger, Trump, Cosby, and Why Being a Woman in 2017 Feels Harder than Ever, BUSTLE (June 17, 2017), https://www.bustle.com/p/trump-cosby-why-being-a-woman-in- 2017-feels-harder-than-ever-65066. 6 See, e.g., Patricia Cohen & Tiffany Hsu, Children’s Book Industry Has Its #MeToo Moment, N.Y. TIMES (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, THE CUT (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, DAILY BEAST (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. TIMES (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, HOLLYWOOD REP. (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, JEZEBEL (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, REFINERY29 (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, ATLANTIC (Nov. 9, 2017), https://www.theatlantic.com/entertainment/archive/2017/ 11/louis-ck-sexual-misconduct-allegations/545489; #MeToo Hits the Nonprofit World, CHRON. PHILANTHROPY (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?, WASH. POST 41734 nyu_94-5 Sheet No. 48 Side B 10/28/2019 11:39:54 (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;