Opinion | What Do You Do When You Are Anonymously Accused of Rape? - The New York Times

Mon, 15 Oct 2018 12:28

What do you do if you are accused of sexual misconduct and believe yourself to be innocent?

If you're Brett Kavanaugh, you go nuclear. But if you're a progressive man who sees himself as a feminist ally, the politically acceptable strategy is to keep quiet and lay low. If you do anything at all, put out a statement saying you support the #MeToo movement, that it's an overdue and necessary corrective, and that you are taking some time for self-reflection. Spend some months ordering takeout and avoiding parties where everyone is whispering about what they think you did.

Stephen Elliott, the founder of the left-wing website The Rumpus, followed that script. A year ago this month, his name appeared along with some 70 others on an anonymously sourced Google spreadsheet. It was called the Shitty Media Men list and the accusations ranged in severity from ''weird lunch dates'' to ''rape.''

Rape is what Stephen Elliott was accused of. His entry, along with more than a dozen others on the list, was highlighted in red to denote physical violence. It read: ''Rape accusations, sexual harassment, coercion, unsolicited invitations to his apartment, a dude who snuck into Binders'' (a women-only Facebook group).

But on Wednesday, the day before the statute of limitations ran out, Mr. Elliott stopped lying low and sued the creator of the list for defamation. He filed a federal lawsuit in the Eastern District of New York against ''Moira Donegan and Jane Does (1-30)'' seeking $1.5 million in damages.

Ms. Donegan declined to comment for this article. But in January, in a widely read, affecting essay for New York Magazine in which she outed herself as the list's creator, she explained its purpose: It was an ''attempt at solving what has seemed like an intractable problem: how women can protect ourselves from sexual harassment and assault.''

It may have served that purpose for some women. But did it tell the truth about all of the men on it? In an interview on Wednesday, Mr. Elliott said: ''No one is going to come forward and say that I raped them. I don't believe even my enemies believe I raped somebody.''

So what does he want? ''An apology would be good,'' he said. ''Legal fees would also be good. But maybe seeing it argued out in the court of law will help good people come to their senses and distance themselves from the rotten parts of this movement.''

Of the dozens of men accused of sexual misconduct this year, many proclaim their innocence. But Mr. Elliott is the first from the list who is known to have sued. Some apologized. Some denied and carried on. Others were subject to internal investigations and kept their jobs. Some were fired. A few recently wrote widely panned articles about how the accusations ruined their lives. (Mr. Elliott checked this box with an essay in Quillette last month.)

Five of the men on the Media Men list on Thursday spoke to The Cut on the condition of anonymity to condemn Mr. Elliott's lawsuit. What's fascinating is that even as they expressed anger toward Mr. Elliott, most insisted that they, too, are not guilty of what they are accused of. But the collective sense is that Mr. Elliott should do what they're doing: ''taking one for the team,'' as one of them put it.

A year ago, that's where Mr. Elliott was. ''Multiple people asked me at first if I was O.K. just taking a bullet for the movement,'' he told me. ''Because of their politics and, frankly, because of mine.''

''If I was to come out and say, 'Hey, I was falsely accused of rape,' it would be like I was attacking this movement which at the time, was a movement that I believed in,'' he said.

So Mr. Elliott hid out.

''I sat in my apartment and got high for three months,'' he said. ''I was in the closet.''

Over those months, he says his life started to fall apart. He lost friends. His Hollywood agent stopped calling him back. Already prone to depression, he became suicidal.

I met him in early February for the first time. He had reached out to me via Facebook asking if I would read the essay he'd written about his experience '-- it had been accepted and then rejected by New York Magazine and The Guardian, at that point. When we met for coffee in a Beverly Hills hotel lobby, I found him to be shaky and depressed.

No longer.

When I interviewed him this week, he seemed energetic. He's moved from Los Angeles to New Orleans. He's sober.

''I really feel like I'm happy for the first time since this started,'' he said. ''I have a politics. I know who my friends are.''

What are those politics? ''I still think of myself as a liberal,'' he said. ''But the left moved away from liberalism and I hadn't realized that yet. If you are a liberal, by definition, you believe that it's better to let a certain amount of guilty people go free than to jail one innocent man. That's almost the definition of liberalism. These people on the left aren't liberals at all, actually. What I've come to realize is how close they are to the people on the right.''

Even if Mr. Elliott is innocent of the rape accusations, he is, by his own admission, a damaged person. By 12, he was drinking and dropping acid. At 13, after the death of his mother, he ran away from home. He lived on the streets and ultimately became a ward of the state. In his 20s, he was a stripper and used heroin. Now 46, he is a cross-dresser who gets off on being tied up. He says he almost never has penetrative sex.

He is not private about any of these details. Indeed, he has mined them for several of his books, including ''The Adderall Diaries,'' ''Happy Baby'' and ''My Girlfriend Comes to the City and Beats Me Up.''

Mr. Elliott and his lawyer think this is fundamental to the case. That given how public he has been about his proclivities, Ms. Donegan and the others who used the list would have been aware of his sexuality. As the complaint puts it: ''In these nonfiction works, of which Defendants are aware, Plaintiff openly describes his sexual preferences in detail so that it is clear he could not physically participate in the false, unsubstantiated allegations published about him in the List by Defendants.''

Of course, none of this means he couldn't have attempted to rape someone.

And the Shitty Media Men list was not the first time Mr. Elliott was publicly accused of bad behavior. In a 2015 essay in Tin House, the novelist Claire Vaye Watkins portrayed Mr. Elliott as a tone-deaf misogynist '-- and made the case that his ''professional sexism'' exists on a continuum with sexual violence.

In the wake of his Quillette essay, two more women came forward with complaints.

Lyz Lenz, who is now the managing editor of The Rumpus, tweeted about an instance where Mr. Elliott ''invited me up to your room to watch a movie'' and didn't ''take no for an answer.'' Ms. Lenz says that he ''hounded'' her and she ''hid under a table.'' And Marisa Siegel, who is now the editor of The Rumpus, wrote in an essay about how she was ''shaken'' after Mr. Elliott ''barged'' into her hotel room during a conference and stayed for at least 30 minutes.

When I asked him about these stories, Mr. Elliott said: ''I've certainly been unaware of boundaries and transgressed them without realizing.'' But he insists that Ms. Lenz's and Ms. Siegel's accounts are not only full of half-truths or lies, but beside the point. ''These people are trying to get me to engage in any argument that is not about the fact that I was falsely accused of rape,'' he said. ''Because they don't want to talk about that.''

He added: ''If your position is that it's O.K. to falsely accuse someone of rape because you don't like them, just own that position. That's clearly what a lot of people believe.''

On the one hand, Stephen Elliott v. Moira Donegan and Jane Does (1-30) is a straightforward defamation case.

The complaint says that the statements on the list were ''abusive, vulgar, intentionally misleading,'' that ''the Defendants' actions were malicious in nature,'' and that the list was ''sent to numerous members of the parties' shared profession, the media industry to intentionally harm Plaintiff's reputation and further cause harm to Plaintiff's career.''

This account of maliciousness does not at all square with how Ms. Donegan has described her aim in creating the list.

She wrote in New York Magazine that the list was ''meant to be private'' '-- a written version of a whisper network '-- and that, unlike an HR department or the police, ''the 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 '-- and yet, once it became public, many people immediately saw it as exactly that.''

''I thought it was a good essay,'' Mr. Elliott offered when I ask him about it. ''The problem with it is that it's not honest. She deliberately mischaracterizes her motivation. If you create something with the intention of hurting your enemies, that's a weapon.''

He is planning to provide documents to the court that he thinks prove Ms. Donegan's intent was malicious. Chief among them are since-deleted tweets, like:

On Oct. 26, 2017, she tweeted: ''I like the witch hunt but I love that it happened in October.'' The next day she wrote: ''Small, practical step to limit sex harassment: Don't employ any men.''

On Nov. 15, she wrote about the Paris Review Editor whose name was on the list: ''As if both of those things weren't obvious already, I'm interested in Lorin Stein and my DMs are open.'' Then, when The New York Times published an article about the resignation of Mr. Stein, who apologized for inappropriate behavior, she tweeted the article with an invitation: ''champagne anyone.''

That's the straightforward part.

The new part is that this is a case being brought against a mostly anonymous group who created an anonymous list containing potentially defamatory statements.

I asked Floyd Abrams, a leading First Amendment expert, about this case, and he said he had never seen one like it. Andrew T. Miltenberg, Stephen Elliott's attorney, admits he's never brought one like it.

That's not to say that Mr. Miltenberg is new to defending men in sexual assault cases. He is famous for it. He defended Paul Nungesser, a Columbia student who was accused of rape by Emma Sulkowicz and then made the subject of her performance art piece. Mr. Miltenberg won a major settlement against the school.

He estimates that he currently has more than three dozen cases stemming from sexual assault charges, including one being brought by the football player Keith Mumphery against Michigan State, but that Mr. Elliott's is the first where he's taken on anonymous accusers.

''I've had cases where we know what the allegations are and we know who said them. None of that is true here,'' he said. ''The intersection between the internet and allegations like this and anonymity is very dangerous place to be. There's no protection for the accused. It's the perfect way to assassinate someone's character without having to prove anything.''

The other thing that sets this case apart is that it seems likely to snowball '-- perhaps more than Mr. Miltenberg appreciated when he took it on.

At first, Mr. Miltenberg told me that he expected 15 to 20 women to be identified as Jane Does once they got the ''underlying metadata'' '-- as in anything from IP addresses to emails '-- in discovery. (That is, assuming Google cooperates; a spokesperson told Mashable that the company would ''oppose any attempt by Mr. Elliott to obtain information about this document from us.'')

But when he described what could qualify someone as a defendant '-- anyone who wrote on the list, edited the list or published it '-- 15 or 20 seems like a fraction of what the actual number could be. I know dozens of women who have at least emailed the list or received it.

I'm one of them. I asked a friend to send me the list. Once I had it, I allowed a few others to look at it on my phone. Does that make me a Jane Doe? Does sharing it with other journalists count as publishing?

''Sending an email to one person could count as publishing under certain circumstances,'' said Mr. Miltenberg.

In that case, I suggested to him, you might have many, many more than 30 Jane Does. ''This might be like a 500-person RICO case,'' he replied, referring to the Racketeer Influenced and Corrupt Organizations Act.

That sounds a bit terrifying, not just in scope, but also in terms of free speech ramifications. If this is grounds for a suit, couldn't everyone who has ever shared an Alex Jones rant about Sandy Hook being a ''hoax'' be subject to civil litigation of this sort?

When I asked Mr. Abrams, the first amendment lawyer, about how he would defend this case, at first he said, ''If you say someone has committed rape, it's very difficult to defend the case without showing that that's true.''

Later, though, he drilled down on the specific language in the spreadsheet: It does not say ''rape'' after all. It says ''rape accusations.''

''The very first thing I would say to the jury is that she never accused him of rape, but said that he had been accused by some women of rape and that they should bear that in mind. In saying that, she protected those women and certainly didn't libel him.''

One thing is clear: There will be more cases like it. ''There are a number of professors on a similar type of list that are already clients of mine,'' Mr. Miltenberg said. Indeed, next week he'll be filing suit on behalf of the Princeton professor Sergio Verdº.

''This is not a 'save men' case for me,'' Mr. Miltenberg said of Mr. Elliott. ''This is a case of a person having their name, reputation and future ruined by anonymous allegations that can neither be tested nor challenged.''

Perhaps so. But various rumors have circulated about who might be funding it '-- and what broader political agenda this case might be serving. Is some wealthy opponent of the #MeToo movement trying to bring it down? ''Trust me,'' he said, ''these cases would be easier if I took money from billionaires to fund them. I don't.''

Over the past year, as #MeToo has morphed into a verb, I've been involved in heated discussions about any number of men who have been MeTooed. About Al Franken. About Leon Wieseltier. About Louis C.K. About Brett Kavanaugh.

In all of those cases, it is possible to ask: What is the appropriate punishment for behavior that is wrong but perhaps wouldn't stand up as a crime in a court of law?

In the case of Stephen Elliott it is impossible to say almost anything at all about the allegation. There is no named accuser. There is no night in question. There aren't even contending memories. There is nothing other than what's written in the cell of that spreadsheet.

But something that Ms. Siegel wrote in her essay struck me as one plausible explanation: ''What happened is that years of behaving badly (not criminally) caught up to him."

''There's a lot of anger out there about me,'' Mr. Elliott said. ''That's the level of anger that could produce a malicious allegation '-- especially when it's an anonymous list. I don't like this guy. So I put his name on the list, throw in a TV dinner, watch 'The Wire' and forget about it.''

That rage came pouring out on Thursday evening after news of the lawsuit broke, including from many prominent editors and writers. Isaac Fitzgerald, who was a previous managing editor of the The Rumpus, wrote on Twitter that the lawsuit was ''an outrageous act of violence against Moira first and foremost, as well as everyone who contributed to the list or found any measure of solidarity or hope or comfort or usefulness in it.'' A GoFundMe to cover Ms. Donegan's legal fees quickly went up and by Saturday morning more than $86,000 had been donated.

People are right to be concerned that the case could be used to stifle women's speech. A lawsuit can be a weapon. But so can a list. And none of the reactions seemed to address what Mr. Elliott's lawsuit is about: His claim that he has been falsely accused of rape.

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