Allegation Escrows: Technology for the “Me Too” Era

Callisto was a nymph and a follower of Artemis.  Disguised as Artemis, Zeus sexually assaulted Callisto.  Callisto became pregnant, and, when her pregnancy was discovered, Artemis expelled her from her group.  Unfortunately, today, like Callisto, too many survivors fear immediately reporting their sexual assault, particularly when the perpetrator holds the keys to their academic or professional future.  And too often, when they do report, their worst fears are realized. 

In 2015, spurred by her own experience and background in sexual health, Jess Ladd founded “Callisto.”  Callisto, which was originally geared toward address sexual assault on college campuses, allows survivors of sexual assault to create secure, encrypted, and time-stamped reports of their sexual assault.  The app therefore allows survivors to immediately preserve a report of sexual assault on their own terms, and at a time, place, and pace that is best for them.  No one can see the details of a report without the survivor’s explicit consent, as the reports are encrypted in a way that not even the Callisto team can view.  If they wish, survivors can input their perpetrator’s identity under the condition that, if a match is found, a coordinator will individually reach out to each survivor to identify necessary next steps.  Finally, survivors can electronically send the record that they have created directly to their academic institution to trigger an investigation or a consultation.  Universities that partner with Callisto receive a school-specific website, along with training and materials to roll it out to their students, and they may even elect to receive aggregate data reports.

Callisto is one of many “information escrows.”  These information escrows allow individuals to deposit incredibly private information with them – all with the understanding that the information will only be released under specific pre-defined conditions.  Allegation escrows, like Callisto, connect people who have encountered and reported similar experiences and enable them to file their complaints together, thus overcoming the “first mover disadvantage,” the idea that the first accuser faces the greatest risk of retaliation and skepticism.

Callisto has worked.  According to the app, without Callisto, student survivors begin the reporting process eleven months after experiencing a sexual assault.  And yet, survivors who visit their school’s Callisto platform are six times more likely to report their assault and are three times more likely to connect with medical or emotional resources.  Amazingly, fifteen percent of survivors who enter the matching system match with another victim of the same assailant, causing them to report simultaneously.  Thus, Callisto has helped college campuses make enormous strides toward educating survivors about their school’s and police department’s reporting channels, has helped connect students with local resources, and has helped students take action to record or report their assault.

Title IX of the Education Amendments of 1972 prohibits sex discrimination in education.  Both sexual harassment and sexual violence are forms of sex discrimination covered under Title IX, and the law protects students from sexual harassment and violence that occur in the course of a school’s education programs and activities.  Once a school knows or reasonably should have known about sexual harassment or sexual assault on campus, Title IX requires the school to promptly investigate the complaint and take steps to protect its students.

A university’s relationship with Callisto or similar apps therefore comes with a number of legal consideration.  On the one hand, a school might be discouraged from an information escrow that does not inform them until there are multiple reports because Title IX requires them to promptly investigate and address sexual harassment and assault when they reasonably should know about the conduct – not merely when multiple complaints have been brought against a particular individual.  On the other hand, to the extent that the escrow encourages victims who might otherwise be reluctant to report and provides them a convenient way to do so, the escrow might be viewed as an additional tool that a school might utilize to satisfy its Title IX obligations. 

Fueled by its success, Callisto has begun exploring expansion into the professional and political realms.  Launched in 2018, Callisto Expansion is designed to detect serial perpetrators of sexual assault and professional sexual coercion.  Like the original app, survivors can securely and anonymously store information about their perpetrator in Callisto.  If more than one survivor names the same perpetrator, they will each be connected to a coordinator who will help them understand their options for taking action to protect their community.  Like universities, employers may also partner with Callisto Expansion.

Employers, of course, also have a duty to prevent and address sexual harassment and sexual assault in the workplace.  Title VII of the Civil Rights Act not only prohibits gender discrimination and sexual harassment in the workplace, but it also requires employers to provide mechanisms for employees to report sexual harassment and assault, to investigate those complaints, and to take appropriate action.  In fact, in some ways, Title VII requires employers to take a more active role than schools in preventing, investigating, and routing out sexual harassment. 

While an employer’s partnership with Callisto Expansion raises some of the same legal considerations as it does for schools, it could also provide a powerful tool.  Callisto and other allegation escrows not only provide an additional mechanism for employees to report sexual harassment or assault, but they also may encourage employees to report incidents that they were too fearful to discuss with their co-workers.  Furthermore, the collection of aggregate data may also allow companies to identify and decisively address systematic issues without particular departments, locations, and organizations.  In the end, if an employer takes cutting-edge steps to prevent and route out sexual harassment and sexual assault, it will not only create a much more enjoyable and productive working environment, but it may also limits its liability if a lawsuit is brought.  

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