‘There Will be Lists:’ The Issue of Anonymous Rape Accusations in Elliott v. Donegan

He has many identities. He is a face belonging to a name on the notorious Shitty Media Men list. He is the novelist, the group home runaway success story, the recovered addict, the former sex worker, the Stanford Stegner Fellow. He is the pariah of the literary world. He is the alleged rapist. He is Stephen Elliott, and he wants his life back.

Though today he is the guy in the marled gray t-shirt, with the closely-cropped haircut and the unassuming smile. In the light of the Saturday sun as it reflects off Stumptown’s bronze-plated countertops, situated next to a miniature cactus while Britney Spears’s “Hit Me Baby One More Time” plays in the background, Elliott is uncharacteristically tame. Still, Britney is a fitting choice; Elliott wrote an essay about her “clueless genius” back in 2008.

Photo courtesy of Stephen Elliott.

Compare this distilled version of Elliott to the one in “Sunday with Aleta.” The short film, uploaded one month before his life changed, features Elliott in a pale blue latex baby doll dress and porcine mask, hands and feet bound with pink duct tape, as dominatrix Aleta Cai unflinchingly pierces his nipples.

Seven months after he filed a lawsuit against the individuals who accused him of rape via an online spreadsheet, Elliott has emerged from seclusion, hoping to clear his name and repair his shattered reputation by challenging what he describes as false accusations. In doing so, Elliott is not only taking on women of the #MeToo movement, but he is also confronting Google, the tech company that has refused to disclose the names of his accusers.

“I understand the good that’s happening with the #MeToo movement, but at the same time, I’m not guilty of raping anybody,” Elliott said.

In October of 2017, one week after the New York Times published an article chronicling Harvey Weinstein’s decades-long history of sexual harassment, a female journalist created the Shitty Media Men list. The List was a crowdsourced Google spreadsheet, circulated via email, which allowed anonymous contributors to describe actions of sexual misconduct allegedly committed by men in the media industry. Stephen Elliott was number 12 on the spreadsheet.

In March, Elliott’s attorneys drafted a subpoena for limited discovery which would compel Google to disclose the account information for the individuals who contributed to Elliott’s row in the spreadsheet. The document instructs Google to provide, “any and all identifying information for individuals who entered information to, and/or contributed, edited, input, highlighted or otherwise manipulated entries, words, data, and/or information pertaining to the cells, rows and columns attributed to Stephen Elliott. Identifying information shall include, but not be limited to, email address and/or Gmail account name, IP address, IP address history, name, handle, alias and address of said individuals.” This proposal raises serious internet privacy concerns, and could be instrumental in defining the privacy rights of both accused individuals and their accusers. Elliott’s case ultimately requires that the court balance privacy protections with sixth amendment rights.

“I think that there are going to have to be very difficult conversations had on both sides,” said Legal Fellow Josef Ghosn of the Media Law Resource Center, “especially when we look at this policy-wise. Obviously, we don’t want to set the #MeToo movement back, but you definitely want to make sure that it’s fair to all parties involved, and that’s tough. That’s really tough to do. I think that the court is really gonna have to do a little bit of a balancing act here and see which side they want to come down on. That’s the difficulty with these kinds of cases, that you have to balance the victims versus the accused, because obviously we live in a society where the accused and defendants have rights, too, and we cannot just ignore those rights.”

The List’s creator, Moira Donegan, described her motivations for starting the spreadsheet in an article for the Cut, titled, “I Started the Media Men List: My name is Moira Donegan.”

She wrote, “When a reporting channel has enforcement power, like an HR department or the police, it also has an obligation to presume innocence. In contrast, 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.”

The spreadsheet included the following disclaimer:

“This document is only a collection of misconduct allegations and rumors. Take everything with a grain of salt. If you see a man you’re friends with, don’t freak out. . . . Men accused of physical sexual violence by multiple women are highlighted in red. . . . You can edit anonymously by logging out of your gmail. Please never name an accuser, and please never share this document with a man. Please don’t remove highlights or names.”

In the twelve hours of activity between Oct. 11th and 12th, 72 men were accused by the professed “whisper network.” The List used a column format with the headings: “LAST NAME . . . FIRST NAME . . . AFFILIATION . . . ALLEGED MISCONDUCT . . . NOTES.” On the morning of Oct. 12, BuzzFeed News published an article about the list’s existence. Copies of the list became available online. Whispers quickly turned to shouts.

Elliott’s name was outlined in red, and his row included the description, “Rape accusations, sexual harassment, coercion, unsolicited invitations to his apartment, a dude who snuck into Binders???” Elliott is now suing the List’s creator, Moira Donegan, and the anonymous contributors for defamation.

“I can 99% prove not having raped anybody,” Elliott said. “I can’t prove definitively that I’ve never raped anybody, because you can’t prove innocence on an anonymous accusation, when you don’t know who the person is, you don’t have a time stamp or anything.”

“In the ordinary world,” writes Justia columnist and Cornell Law Professor Sherry Colb, “publishing a false accusation would qualify as libel against the accused and might result in a hefty monetary judgment. But with a list of names in which all accusers remain anonymous, the law of defamation may have little to offer the wrongly accused innocent.”

In order to prove a defamation claim, a plaintiff must show that a statement of fact was published about him/her by the defendant, with some level of fault and without any applicable privilege, resulting in harm to his/her reputation. The requisite standard of fault differs depending on whether the plaintiff is considered a private, public, or limited-purpose public figure under the law. A limited-purpose public figure is someone who puts themselves into the spotlight, and therefore has the ability to reach and influence public opinion.

“With public figures, you need the actual malice standard,” said Ghosn, “which is knowledge of the truth or reckless disregard of the truth, and you have to show that in order to prevail. When you’re a private figure, you just have to show negligence. Obviously, the journalist [Elliott] is gonna want to have a private figure standard, so that he can just show negligence and win easily. Obviously, the defendant [Donegan] is going to want a public figure standard, so that the plaintiff has to show actual malice.”

Elliott, 47, is the author of eight books, most notably “The Adderall Diaries,” and founder of The Rumpus, an online literary magazine. He is a connoisseur of the culturally taboo, often writing about sex, drugs, abuse and depression – from personal experience. He is also an active member of the BDSM kink community and isn’t afraid to say the word “dominatrix” in a crowded coffee shop at three in the afternoon. Suffice to say that with Elliott the strange is familiar.

Elliott was out to breakfast with a friend on the morning of Oct. 27, when he first discovered his name on the Shitty Media Men list. More than two weeks had passed since its circulation, but it was still news to Elliott, who was working as a screenwriter in Los Angeles. In between sips of coffee, bites of yogurt and granola, appeared a word that was difficult to swallow: rape. The word would follow him wherever he went.

First, the invitations dwindled, Elliott said. Readings were canceled, as was an interview with the Paris Review. He was uninvited to the LA Festival of Books. Then, his friends in the literary community began to disappear. Those who supported him, did so privately.

“But that whole year is really hard,” Elliott said, “because I don’t know who knows and who doesn’t know. And I don’t want to spread the rumor that I’ve raped somebody or that I’ve been accused of rape. So I’m walking around with this giant secret and it’s really just killing me. And a lot of people do know and they’re avoiding me or they’re treating me as a person of lower status, and then a lot of people don’t, so it’s super tricky.”

Almost a year after the list became public, Elliott came to New York to file the lawsuit. Elliott said that had his row on the spreadsheet not included the word “rape,” he would not have filed. “Without the rape charge, there’s no lawsuit,” he said. “If somebody says that I made them uncomfortable or pressured somebody or manipulated them or whatever . . . those are feelings, and if somebody feels that way, I’m probably just going to honor it. I’m certainly not going to sue, because I can’t disprove that. Those are subjective experiences, but rape is not subjective.”

Photo: Elliott's car, which was vandalized during the fallout.

Elliott has drawn a line in the proverbial quicksand, but it has not stopped him from sinking. The lawsuit produced even more fallout than the List. Within the span of a few days, Elliott alleges he was fired by both his editor at Graywolf and his agent, Bill Clegg. All part of what Elliott describes as a dehumanizing experience.

Elliott’s editor, Ethan Nosowsky, responded in an email, saying that Elliott’s interpretation of events, “isn’t quite right. Though Graywolf and I (via my personal Twitter account) did criticize Elliott’s pursuit of this lawsuit, the situation is this: we did not and do not have any new books under contract with him, so there was/is simply no work to be done.”

Elliott has a few theories as to why his name was included on the list. “Potentially, the Rumpus was a bigger deal and more powerful than I ever realized. I didn’t take it that seriously, or think it was that big of a deal. And so I was surprised looking back and realizing. I didn’t realize that people were volunteering on this website because it was a career move for them . . . So the power of jealousy thing, in effect. People had motives that I didn’t understand.”

No one has come forward to publicly accuse Elliott of rape since the List was published, though he has reportedly made women uncomfortable in the past. In September, Liz Lenz tweeted about Elliott, “Your career wasn't ruined by an anonymous list. Your career was ruined by your gaslighting and harassment. I've got receipts. You can come for me.”

Back in 2009, writer Claire Vaye Watkins, an MFA candidate at Ohio State University, offered to host Elliott while he was in town for a reading. Watkins described her experience in a 2015 essay for Tin House, in which she recalled Elliott repeatedly asking to sleep in her bed and writing about her refusal in the next morning’s Daily Rumpus e-newsletter. Watkins wrote, “I tend to think professional sexism via artistic infantilization is a bummer, frustrating, disappointing, but distinct and apart from those violent expressions of misogyny widely agreed upon as horrific: domestic violence, sex slavery, rape. Stephen Elliott did not rape me, did not attempt to rape me. I am not anywhere close to implying that he did. I am saying a sexist negation, a refusal to acknowledge a female writer as a writer, as a peer, as a person, is of a piece with sexual entitlement.”

Marisa Siegel was Managing Editor of the Rumpus when she and Elliott attended the 2015 AWP Conference and Bookfair in Minneapolis. In response to Watkins’s essay, Siegel published an article, “Firsthand” about her experience with Elliott at the conference. Siegel described how Elliott came to her hotel room door. “The next night, I was wrapped in a towel after taking a shower when I heard my hotel room door banging against the padlock (which I always lock). My boss thought it was appropriate to enter my room without warning.” While Siegel noted that she did not feel physically threatened, she recalled being, “shaken.”

When Siegel’s article circulated in the Rumpus newsletter, Elliot was left to wonder, “why is it so much easier to send an email to 15,000 people than just to have a one on one conversation with somebody?”

Siegel, now Editor-in-Chief of The Rumpus, would go on to buy the publication from Elliott in January of 2017. In October of 2018, Seigel published the article, “We Stand With Moira Donegan,” in which she wrote, “I knew firsthand about Stephen’s lack of boundaries and disrespectful behavior toward female employees . . . Stephen’s decision to go after Moira is hostile and reprehensible. For me, it is unforgivable.”

Ariana Chevalier is a longtime friend of Elliott’s from the BDSM community. Chevalier said that the version of Elliott portrayed by the media is inaccurate, “I don’t know this person.” The Stephen Elliott she knows is an “honest” and “giving” person, who is “always helping someone out, even if he doesn’t even know you.” Furthermore, the Elliott she knows is submissive. “I consider him an asexual male,” Chevalier said. “Basically, to me and some women that I’ve known who have been in relationships with him – not dom relationships — he doesn’t get excited unless he’s in a submissive role.” As to the allegations against him, Ariana said, “I feel that it’s a witch hunt and I don’t believe that he deserves that.”

A review of recent studies indicated that false rape allegations occur between 2 and 10 percent of the time, according to a 2012 report by the National Sexual Violence Resource Center.

Moira Donegan, 28, wasn’t always known as the woman behind the spreadsheet. Prior to the list, Donegan wrote for various publications including Bookforum, the New Republic, the New Yorker and N+1. She identified herself as the creator of the Shitty Media Men list in January of 2018, after a fact checker for Harper’s Magazine suggested that journalist, Katie Rophie, intended to out her in an upcoming article. An assertion which Rophie calls, “a rumor.”

Donegan wrote of the List, “In the beginning, I only wanted to create a place for women to share their stories of harassment and assault without being needlessly discredited or judged. The hope was to create an alternate avenue to report this kind of behavior and warn others without fear of retaliation.”

A 2002 report by the Bureau of Justice Statistics cites rapes as the most under-reported crimes, with as many as 63 percent not reported to police. In 2016, the U.S. Equal Employment Opportunity Commission Select Task Force on the Study of Harassment in the Workplace found that, “sexually coercive behavior was reported by only 30% of the women who experienced it.”

Donegan has since signed a book deal with Scribner, and plans to write a, “primer on sexual harassment and assault as lived experience and moral and political challenge for feminists.”

While none of the men included on the List are facing criminal charges, there have been career repercussions, including the firing of Leon Wiesltier from the Atlantic and the resignation of Lorin Stein from the Paris Review. Whether one considers the List justified or unconstitutional, it is now up to the courts to determine whether it is libelous.

“The crux of the case is really: does the defendant fall under 230 protection or not?” Ghosn said.

Section 230 of the Communications Decency Act from 1996 includes the line, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This provision has been invoked, successfully and unsuccessfully, in cases dealing with everything from mattress reviews to comment threads to housing discrimination. It basically ensures the immunity of a public forum, so that someone who provides a space for discussion cannot be sued for the contributions of others.

“The difference between a provider and a publisher is important,” Ghosn said. “If she falls under 230 protection, then, as a provider, she can’t be held liable.” The court will have to decide whether Moira Donegan played some part in the List’s editorial process beyond creating a digital space.

Photo courtesy of Stephen Elliott.

Though the legal system operates with a presumption of innocence, the court of public opinion has no such stipulation. “The people that are writing about it, the people that are supporting Moira, they don’t care whether or not I’m guilty of rape,” Elliott says. “Cause you’re on the other side, you’re a bad guy, you’re a bad person. And so that’s it. Once you’re a bad person, you’re just a bad person. You’re beyond the pale. You’re not part of the conversation, you’re an untouchable. You’re not going to be dealt with, or talked to or taken seriously. You’re an exile.”

The life of an exile is lonely. Elliott says that he goes for long stretches without seeing or speaking to anyone. He passes the time as a property manager, building and rebuilding. With spackle, paint and vision, Elliott has channeled his creative energy into construction. “The people in my life right now, are carpenters and junkies,” Elliott says. Elliott is busy scouring estate sales, searching for the right décor, “to create a mood, a kind of story for the house.” And so the writer will continue to fight for the right to tell his own story.

The Shitty Media Men list is not the first of its kind, nor will it be the last. In 1990, the Times reported on a list of rape accusations written on the bathroom walls at Brown University. Another online list, called, Make Them Scared, launched at the University of Washington in September. The site is managed by a group of anonymous moderators. Its purpose statement includes the disclaimer, “We do not have the ability to determine whether any accused party is legally "guilty" or "innocent." That being said, we no longer allow names to be submitted anonymously (the point when this changed is marked on the list.)”

“The list tells us that rape victims are not receiving the justice to which they are entitled in the courthouse,” writes Professor Colb. “When police and prosecutors repeatedly send rape victims away, they convey to them the knowledge that vigilantism is the only way to hold their attackers responsible for what they have done . . . Until the system begins to prosecute and convict acquaintance rapists in earnest, there will be lists.”