There’s no one like Professor Maybell Romero in the legal academy (I say this, a la Violet Chachki, as a compliment, not a read).
In a searing article from several years ago, Ruined, Romero used her own experiences with rape and sexual assault to critique how the law and legal profession describe survivors as “ruined,” “broken,” or “destroyed.” Then, in Shamed, Romero expanded the lens: She used personal narrative and auto-ethnographic methods and applied them to individuals and institutions within the legal academy. That piece explored how survivors are shamed, in addition to being described as ruined—sometimes by members of the legal academy, as Romero recounts when describing (some of) the reaction to Ruined.
Romero’s latest intervention, Gossip, is even more laser focused on the legal academy. It explains why the legal academy relies on gossip as a governance structure (meaning an informal system of regulation) for addressing sexual misconduct. The piece is, once again, a difficult but necessary read.
Gossip defends (at least some forms of) gossip as a limited, imperfect tool that fills in gaps left by the structure of the legal academy, its inhabitants, the contours of the law, and other factors. As Romero describes, there are several reasons why sexual misconduct may escape formal legal regulation, in which case gossip may be “a rational response to institutional silence and legal voids.” Romero recounts situations that arise “outside the traditional employer-employee context, such as those between mentor and mentee, junior scholars and senior scholar in a same field but not necessarily the same school” and more, which laws might not reach. Romero also notes that professors are intimately familiar with the risks of legal action and that the structure of the legal academy relies heavily on networks, connections, and reputations—all of which might scare someone into not formally or publicly reporting.
Romero defends a role for gossip in small, networked communities, such as the legal profession. She defends “prosocial gossip” in particular, which she describes as evidence-grounded, accurate, and relying on direct experience. You might not think of that as gossip, but part of Romero’s project is to rehabilitate the category of gossip and encourage us to understand that not all gossip is the same. Romero acknowledges the grey area of “secondhand warnings” and encourages us to “learn[] to better evaluate gossip,” in part by evaluating the motives of the gossiper. At the same time, Romero is also clear-eyed about the limitations of gossip. Gossip is looked down upon. Gossip can be wielded against accusers to perpetuate hierarchies, inaccurate, or unavailable to people not in certain networks. And it never delivers real justice or resolution.
I’m sympathetic to Romero’s case and admire this writing.
I do, however, have some additional questions about the limits of gossip. I wonder if some of the issues Romero identifies with formally reporting misconduct also apply to gossip. The risk of retaliation might deter someone from making a formal legal claim. But similar fears about retaliation might impede gossip or repeating gossip: Do you want the powerful, connected, senior person in your field to find out you were gossiping about them? Probably not—especially if you were already worried they might retaliate against you if you filed a formal complaint against them.
Romero touches on the importance of bystander intervention in cases of sexual misconduct—the person who observes misconduct, but maybe isn’t its target, and how they need to exercise their relatively greater ability to speak up. Is gossip appropriate in cases of a failed or unwilling bystander or someone who acts as an enabler? How about someone who is a second-degree retaliator—that is, the person who retaliates against you isn’t the person who engaged in the original sexual misconduct, but someone around them (and you). Perhaps it’s someone who didn’t like the accusations against their friend or colleague, or someone who felt like they were being (unfairly) accused because of their association with the accused. In those cases, there is still a legal vacuum that makes formal complaints difficult; all of the reputational and other considerations that deter formal allegations of misconduct still exist. Is gossip appropriate then?
One potential shortcoming of gossip is also what makes it more appealing than a formal complaint—the lack of a public record. In cases of formal, public allegations of misconduct, it may (counter-intuitively) be easier to protect yourself against retaliation. If there is a record of the allegation, that is potential evidence that could support a claim of retaliation. There isn’t that same record when the remedy is gossip. There, the retaliation might be more invisible—people might not realize that the senior person negging a junior has a potentially nefarious motive for doing so. Worse still, memories tend to be asymmetric (at least in my experience). Memories about how an accuser or gossiper was brave fade. Anger…less so. That mismatch exacerbates the risk of retaliation. If people are angry about gossip or about an accusation of misconduct, they will stay angry five, or ten years later—perhaps continuing to seal off opportunities, connections, and networks to the gossiper or accuser. But the people who may have felt some admiration for the gossiper or accuser may forget. When the memory fades among people who were sympathetic, and they no longer look out for possible retaliation against the gossiper or accuser, the relative risk is fairly lopsided. It’s basically all downside, with little possibility of a safety net to protect or catch you if things go wrong.
The only reason we are even in a position to have this conversation about the limits of gossip, however, is because of Romero’s intervention in Gossip. For that reason alone, the piece is worthy of admiration and the author even more so. Gossip is a needed reminder about the shortcomings of the law – and the structures and systems that pop up in its place. When we’re aware of those dynamics, we may be in a better position to fix them. And Gossip also focuses the legal academy’s attention on a system that is within its power to address—the legal academy itself.
So, dearest gentle readers: If, as Romero persuasively argues, gossip is the legal academy’s second-best solution for sexual misconduct, how do we protect the gossipers?
