Shitty Men, CanLit and the Legal Ramifications of the Whisper Network

Going public with sexual assault and harassment allegations can have serious repercussions—even if you’re doing so to protect other people from harm

An image of a twentysomething woman looking seriously at her computer-inline

(Photography: Getty)

In January, NYC based-journalist Moira Donegan published an essay in New York magazine identifying herself as the creator of the Shitty Men in Media List, amid reports that another magazine planned to out Donegan in an upcoming cover story. The controversial Google doc, which was circulated last October for just 12 hours before being taken offline, named male editors/writers/journalists from the U.S., their workplaces and their alleged acts of misconduct—from “creepy” direct messages to rape—and would grow to identify more than 70 alleged abusers.

Our culture is in the midst of the #MeToo and #TimesUp reckoning, and over the past year countless women, non-binary individuals, and men have sought justice outside of the legal system, instead coming forward to publicly name sexual predators—often at great personal risk. What was once a private whisper network—a friend warning another not to go to drinks with a certain colleague, or to skip the office hours of *that* professor—has become a public conversation. With the Shitty Men in Media list, Donegan gave public form to the whisper network. Doing this was contentious—some have called creating the document irresponsible, asserting that it denied the accused due process. Others have claimed that it’s a necessary step to expand the reach of traditional whisper networks and keep more women safe. It was also, at the end of the day, groundbreaking, as other long-rumoured, chronic instances of harassment or assault soon came to light—including within Canada’s literary community.

On January 8, a Canadian writer and former Concordia University creative writing student, Mike Spry, published a piece which makes allegations of unwanted affection, groping and inappropriate propositions by Concordia University creative writing faculty towards female students. The piece didn’t name names, but it did refer to specific examples of what Spry referred to as a “community of misogyny, toxic masculinity, and privilege” in CanLit. A few weeks later, Buzzfeed writer Scaachi Koul reported that a well-known Canadian poet and editor has been anonymously accused of sexual harassment in a Canadian equivalent of Donegan’s list, which was sent to Koul privately in late 2017. Most recently, Canadian novelist Zoe Whittall wrote an essay for The Walrus, entitled “CanLit Has a Sexual Harassment Problem.” In it, she describes the CanLit community’s response to allegations of sexual harassment and assault against Stephen Galloway, a Canadian writer and former University of British Columbia professor (about whom the #UBCAccountable movement started). The piece quickly gained traction online and was both lauded for its courage and derided by critics who felt the representation of the allegations unfairly represented the situation. (At the time this piece was initially published, Whittall’s essay had been removed from the site to undergo additional fact-checking. It has since been republished.)

“I’m overwhelmed by the supportive feedback I received about my Walrus piece today. It means so much that it resonated,” Whittall wrote on Twitter on February 6. “For legal reasons there are now some changes to the text.”

The consequences for going public with accusations like these varies. In her New York essay, Donegan writes about the toll administrating the list took on her mental health, as well as her professional and personal relationships. After publishing the essay, she faced online harassment, including threats of doxxing—in which trolls release private information, like someone’s home address or bank account information, online.

In Canada, Spry’s essay ignited controversy, especially from those who felt he glossed over his own complicity in perpetuating an abusive culture at Concordia. Still, both Spry and Koul’s pieces have started urgent conversations about sexual abuse in CanLit.

These can be difficult conversations to have, and, because of Canada’s strict defamation laws, going public can have serious legal repercussions—even if you’re doing so solely to protect other people from harm.

“Many women who have accused their perpetrators have had to face retaliatory defamation claims,” Dr. Constance Backhouse, a law professor at the University of Ottawa and co-author of The Secret Oppression: Sexual Harassment of Working Women, explains. “These are often brought with inflated dollar demands—for example, a claim for one million dollars in damages…  I believe it is very rare for these lawsuits to actually go forward, but they are certainly effective as an intimidation tactic.”

Defamation is a legal term which refers to any time a person says or writes a false statement which could harm another person’s reputation, explains lawyer Lisa Jean Helps of Vancouver.

“Libel is where those statements are written,” Helps says, “Slander is where those statements are spoken.”

And you don’t have to actually mention anyone’s name. According to Helps, if you’ve said or written something with enough details about a person or circumstances that they can argue they’ve been identified, you can still be accused of defamation. Helps adds that in instances in which the person isn’t named, they’re generally less likely to file a defamation suit in order to avoid “outing” themselves.

If found liable of defamation, you may be obligated to pay damages—which can sometimes be thousands or even hundreds of thousands of dollars—depending on the amount of harm done to the person’s reputation. In the case of libel, future publications of the defamatory writing will also be banned.

Because lawsuits can be onerous and expensive, cease and desist letters are sometimes used as a silencing tactic before further legal action is taken—the threat of a lawsuit can often be enough to make someone stop talking, even if they’re telling the truth.

“My biggest concern is the way the justice system is used by powerful people as a bullying tactic,” Helps says.

If you receive a cease and desist, you should seek the advice of a lawyer. Can’t afford one? Helps recommends seeking out civil pro-bono projects in your province.

“Provincial law societies often have a lawyer referral service where the first hour or half hour is free or a minimal charge,” she says, “Most law schools have some kind of free legal clinic and many arts alliances have relationships with lawyers or law firms who will consult for a minimal [fee], or [for free].”

At McGill University in Montreal, the Radical Law Students Association has recently experienced an uptick in legal questions related to harassment and assault claims.

“We [have been] in contact with students at both McGill and Concordia who have encountered threats of defamation after allegations of sexual misconduct against professors,” says Sydney Lang, a second-year law student at McGill University and member of the association. As a result, the organization is currently developing a series of legal information workshops, covering topics such as defamation and making sexual assault complaints.

“This is particularly important,” Lang notes, “given the pre-existing power imbalances between students and professors, often the former being women and latter being men.”

While there is no time limit in Canada on making sexual assault complaints—or filing a civil lawsuit related to a sexual assault complaint—making public allegations can have also have ramifications if the case ends up in criminal court. It can be more difficult to testify in a criminal case if you’ve spoken to the media or to other complainants, because any statement you’ve made in any forum, including on social media, can be the subject of cross examination and possibly used to undermine your credibility as a witness. This tactic was seen in the Jian Ghomeshi trial—the complainants’ correspondences were used in court to demonstrate inconsistencies in their accounts of the alleged assaults. Helps advises anyone wishing to bring a criminal charge against their abuser to decline media interviews and avoid discussing the details with other witnesses or complainants, even in a theoretically private forum such as a whisper network.

Ultimately, disclosing harassment or assault can be a damned-if-you-do, damned-if-you-don’t scenario.

“The idea that women have an obligation to report does a disservice to women,” says feminist activist and educator Julie Lalonde, “It’s a lose-lose situation. If [a survivor] doesn’t name her abuser, she is often blamed for keeping other women in danger. But if she does, her motives are questioned… she is assumed to be lying.”

Lalonde was stalked for 11 years by her ex-boyfriend. But despite being an outspoken advocate for women’s rights, she couldn’t speak publicly about it, due to safety concerns, until his death. Even still, after Lalonde published an essay about her experience, she received an email from individuals close to her abuser threatening to sue her for libel. Lalonde still does not disclose her abuser’s name or any identifying details out of fear of a libel suit. Her best advice? Only disclose if you feel it’s safe to do so.

“Ultimately, [survivors’] safety is what matters most to me,” Lalonde says, explaining that for many, the consequences of speaking out are simply not worth the risk and potential for harm, “I was well-positioned and well-protected as an educator with a history of police records and proof, and even I had to deal with threats of legal action.”

At the end of the day, the calculus surrounding going public with allegations of abuse is personal and complex—and survivors who decide not to come forward need our support just as much as those who do.

This piece was updated on February 10, 2018 to reflect that Zoe Whittall’s essay has now been republished by The Walrus.

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