Free Speech

Do Plaintiffs from Conservative Cultural/Religious Groups (e.g., Muslims) Have More Right to Proceed Pseudonymously in Sex Assault Lawsuits?

That's what an Eleventh Circuit opinion seems to suggest, in a case where a Trinidadian Muslim plaintiff said she "come[s] from a strict Muslim household where under [their] cultural beliefs and traditions such a sexual assault would have the tendency to bring shame and humiliation upon [her] family."

|The Volokh Conspiracy |

From Doe v. Neverson, a nonprecedential opinion decided today by the Eleventh Circuit (Judges Wilson, Jordan & Anderson):

The plaintiff, proceeding as "Jane Doe," appeals the district court's denial of her motion to proceed under a pseudonym in her sexual assault and battery action against Tremaine Aldon Neverson. Ms. Doe claims that proceeding under her real name would bring great shame to her and her family due to their religious beliefs, as well as subject her to online bullying and harassment….

Ms. Doe alleges that Mr. Neverson, an internationally acclaimed musical recording artist, sexually assaulted her while the two were partying at a nightclub in Miami on January 1, 2018. Specifically, Ms. Doe alleges that Mr. Neverson invited her to a nightclub after they spent New Year's Eve celebrating together at the house of hip-hop mogul Sean "P. Diddy" Combs on Star Island. Upon arriving at the nightclub, Ms. Doe accompanied Mr. Neverson to a VIP table, where he forcefully placed his hand under her dress and attempted to insert his fingers into her vagina without her consent.

Doe tried to sue Neverson pseudonymously:

Ms. Doe argued that she should be permitted to proceed under a pseudonym because she will be required to disclose matters of the "utmost intimacy," including Mr. Neverson's sexual assault. She further asserted that she comes from a devout Muslim family from Trinidad, and the nature of the allegations would bring shame to her and her family because of their cultural and religious traditions.

In addition, Ms. Doe argued that if her identity were publicized, she and her family would be subject to online bullying, harassment, and threats. She claimed that because Mr. Neverson is a well-known music artist, this lawsuit "has made national news and has been picked up by multiple blogs and websites including The Shade Room," and that "The Shade Room's Instagram post of the story garnered nearly 80,000 likes and received over 7,000 comments." She further asserted that using a pseudonym would not prejudice Mr. Neverson because she would provide him with her real name under a protective order so that he could conduct discovery and build a defense….

She also attached examples of comments made by readers of The Shade Room's post, such as:

  • "THESE H0's GOTTA STOP WITH THIS BS";
  • "Just another female tryna get some money from a celebrity";
  • "Man get tf outta here … where she at #LeaveTreyAlone #ThirstTraps";
  • "I know someone can pull up Diddys 2017 New Year's Eve photos let's find out who this chick is roomies";
  • "how much would it have been if he killed the same person …";
  • "Y'all Gon stop lying on my man, I'm ready to fight!"; and
  • "She lying. Idc who it is. She lying."

Federal Rule of Civil Procedure 10(a) requires that "every pleading" in federal court "must name all the parties." Although this creates a "strong presumption in favor of parties proceeding in their own names … the rule is not absolute." A party may proceed anonymously by establishing "a substantial privacy right which outweighs the 'customary and constitutionally-embedded presumption of openness in judicial proceedings.'" …

[T]he "first step" [in the weighing] is to consider whether the party seeking anonymity "(1) is challenging government activity; (2) would be compelled, absent anonymity, to disclose information of the utmost intimacy; or (3) would be compelled, absent anonymity, to admit an intent to engage in illegal conduct and thus risk criminal prosecution." … [W]e have also considered "whether the plaintiffs were minors, whether they were threatened with violence or physical harm by proceeding in their own names, and whether their anonymity posed a unique threat of fundamental unfairness to the defendant." …

[I]n denying Ms. Doe's motion, the district court reasoned that "by filing the lawsuit, [Ms. Doe] should have appreciated that the case could result in a public trial in which she would have to appear, her identity would be made public and she would have to be questioned. Consequently, the protective order [Ms. Doe] proposes would only serve to postpone the inevitable."

It is true that the analysis of whether a plaintiff may proceed anonymously may change at different stages of the litigation. See Lawson v. Rubin (E.D.N.Y. 2019) (vacating order that initially allowed the plaintiffs to proceed under pseudonyms before trial because a different balance of interests comes into play at the trial phase when the jury will have to resolve critical issues of credibility). See also Does I thru XXIII v. Advanced Textile Corp. (9th Cir. 2000) ("We recognize that the balance between a party's need for anonymity and the interests weighing in favor of open judicial proceedings may change as the litigation progresses."). But it is incorrect to assume that Ms. Doe cannot proceed at trial under a pseudonym. For instance, in Francis we held that, subject to First Amendment concerns, women who were videotaped engaging in sexual conduct when they were minors were entitled to proceed anonymously at trial. The district court therefore erred in concluding that proceeding under a pseudonym is only "postpon[ing] the inevitable."

{As Ms. Doe notes, the vast majority of civil cases are settled or dismissed before trial. One option available to the district court is to allow Ms. Doe to proceed under a pseudonym for now, subject to review at future stages in the litigation upon a motion from Mr. Neverson.}

Second, the district court concluded that Ms. Doe failed to show that the allegations involve matters of the utmost intimacy. In doing so, it rejected Ms. Doe's argument regarding the shame the allegations would bring to her and her family due to their religious beliefs, relying on cases that hold that "personal embarrassment" is not enough to warrant proceeding anonymously in sexual assault cases. The district court is correct that "personal embarrassment" alone does not justify proceeding under a pseudonym.

But … in other cases, we have held that "social stigma" is sufficient to warrant proceeding anonymously. As we have explained, "[c]ourts have permitted plaintiffs to proceed anonymously in cases involving mental illness, homosexuality, and transsexuality" because "the social stigma attached to the plaintiff's disclosure was found to be enough to overcome the presumption of openness in court proceedings."

Here Ms. Doe does not just allege that the sexual assault allegations in this case might result in "personal embarrassment." Instead, she asserts that because she is from a "devout Muslim family," the "very nature of her allegations would be sufficient to bring harm to [herself] and shame to her family under the cultural/religious traditions that her family practices." She supported this claim with her declaration, in which she attests that she seeks to proceed under a pseudonym in part because she "come[s] from a strict Muslim household where under [their] cultural beliefs and traditions such a sexual assault would have the tendency to bring shame and humiliation upon [her] family." The district court erred by treating Ms. Doe's motion as merely alleging personal embarrassment, without accounting for what she actually alleged or considering our social stigma cases.

We also note that, under our precedent, the district court may have too easily discounted evidence that Ms. Doe would be subject to threats and harassment if she were required to proceed under her real name. In Stegall, we held that the district court had to allow the plaintiffs to proceed under a pseudonym in their suit challenging prayer in school, explaining that there was evidence that the plaintiffs "may expect extensive harassment and perhaps even violent reprisals if their identities [were] disclosed[.]" That evidence consisted of local newspaper reports of public reaction to the lawsuit voiced at a school board meeting, which included threats such as "Christians must beat the evil out of these people." As noted earlier, here Ms. Doe submitted an example of a website post about this lawsuit and eight threatening or harassing comments made by Mr. Neverson's fans. In today's digital age, Ms. Doe's evidence seems similar to the news report we relied on in Stegall….

Now some courts have indeed concluded that people generally are entitled to sue pseudonymously when they are alleging sexual assaults, because those can be embarrassing for many victims. Courts have also concluded that people can sue pseudonymously when they would have faced serious public hostility, though I think that category has to be sharply limited. There's much to be said for generally adopting such rules, regardless of the group to which the plaintiff belongs.

But here the court's reasoning seemed to focus in large part specifically on the embarrassment and social stigma stemming from the reactions of her cultural and religious community. This suggests that the same objection brought by a nonobservant Christian or an atheist, who nonetheless felt the risk of the normal social stigma that may accompany public revelation of one's (even involuntary) sexual contacts, might be rejected.

I understand the appeal of this approach: If the pseudonymity discussion should turn on the magnitude of the stigma that the plaintiff would face if identified, then it may be that people in different groups would face different levels of stigma.

But I'm skeptical of courts' ability to fairly and accurately decide the cultural norms of various groups. How do you compare the likely "shame and humiliation" that a Trinidadian Muslim woman might feel from being identified as a victim of sexual assault with the shame and humiliation that might be felt by, say, an Irish-American Catholic woman (perhaps not by her family, but by herself)? Or the shame and humiliation that might be felt by a man who is claiming to have been the victim of a sexual assault by another man, and claims that in his circle such victimization is seen as particularly shameful?

Here, the plaintiff relied just on her declaration, but understandably there might be reason to doubt such statements by the plaintiff—even if the plaintiff is sincere, it's human nature to spin such matters, even subconsciously, in one's own preferred direction, especially when one is talking about matters of degree. (How devout is "very devout"? How "strict" is one's "Muslim household"? In how many people's eyes would the revelation produce "shame and humiliation" for the family?) Presumably one could try to bring in other people who are in the same community, so they can speak to whether the "sexual assault would have the tendency to bring shame and humiliation upon [plaintiff's] family," but who aren't so close to the plaintiff that they are likely to be consciously or subconsciously biased in favor of giving the testimony she wants. But I doubt that this will be likely to yield consistently fair and accurate results.

The law does sometimes have to make similar subtle judgments, perhaps most analogously in deciding whether someone has a sincere religious belief that would entitle him to a religious or conscientious exemption (e.g., from the draft). But that at least calls for a yes-or-no judgment about what this particular person believes is right or wrong, rather than a judgment of degree about how some number of fellow community members will perceive things.

In any event, that's my tentative reaction—I'd love to hear what others think.

NEXT: Did Justice Thomas quietly dissent in Little v. Reclaim Idaho in light of his dissent from Doe v. Reed?

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  1. What about, you should be able to have anonymity for cases like these, but not because she is Muslim? Just in general. And if not, well, your sorta reinforcing the sexist and outrageous beliefs that causes the plaintiff to feel that way.

    If you can credibly make a case that it would cause embarassment of this form, the appeal of anonymity suffices regardless of whether or not it was motivated by cultural effects.

    1. What about, you should be able to have anonymity for cases like these, but not because she is Muslim? Just in general.

      I can see reasons for granting anonymity during a trial to prevent retaliation against the plaintiff. But I can also I see a few issues with granting anonymity to plaintiffs. This applies to any plaintiff not just ones in sexual assault lawsuits. Top level, is it can conflict with a fair trial for the defense, finding witnesses, etc. Also, it makes it harder to find cases of extortion (you’ve filed the same charges against 5 different people over 3 years).

      And if not, well, your sorta reinforcing the sexist and outrageous beliefs that causes the plaintiff to feel that way.

      Either I’m misconstruing what you mean to state or you’re going to have to provide some explanation for this leap of logic. I think you’re skipping a few stops from “no anonymity” to “reinforcing sexist beliefs”….which also begins with explaining what those beliefs are. Also, you better make sure those are gender neutral because the same rule should apply regardless of which sex the plaintif is.

      1. ” Also, you better make sure those are gender neutral because the same rule should apply regardless of which sex the plaintif is.”

        Or so you assume (taking notice that you don’t also claim they should be the same regardless of which sex the defendant is.)

  2. What is the legal justification for allowing a plaintiff to proceed pseudonymously, and what is the legal justification for preventing it?

    I believe the answer to the first question is that being known as a victim of some crimes re-victimizes the plaintiff, so we allow them to proceed (effectively) anonymously so that they won’t be disincentivized into letting a meritorious claim sit idle. If you can’t use your justice system without heaping more injustice upon your self, it isn’t a “justice” system.
    On the other hand, the reason to require filing under a true and accurate name is open records, so disinterested third parties can have confidence in the fairness of the proceedings.
    If these answers are accurate, then yes being in a conservative social group would make a difference in whether or not to allow a pseudonymous (or anonymous) filing. The defendant is going to know whose rights they’re accused of infringing, and if they don’t the complaint isn’t clear and detailed enough to press, so you’re left with the need to avoid disincentivising the filing of meritorious claims against the need for open records. If the plaintiff is of a group that is likely to overreact to the existence of the original offense, then the likelihood of a disincentive to file a valid claim is higher. Balanced against a desire for open records that hasn’t changed.

    QED

  3. Perhaps I missed it but does she claim to be a devout Muslim? It seems she is protecting her family, however if Wikipedia is correct only 5% of the populaion of Trinidad and Tobago is Muslim and most are of South Asian descent, not a group noted for extremely conservative views. Most of the rest appear to be descended from African Muslims, again not generally considered to be extremely conservative Muslims. Further the behavior described is not indicitave of any devout Muslim I know. None of which is dispositive but sugestive.

    1. “Perhaps I missed it but does she claim to be a devout Muslim?”

      Who cares? Why do you?

  4. Seems to me a bit of hypocrisy on the plaintiff’s part, that going along with the familial shame theme requires not taking the rapist to court. I mean …. the idea that a rape victim can bring shame to a family means accepting the idea that rape is the victim’s fault, and that is incompatible with blaming the rapist in court. Refusing to play the part of the victim implies that she thinks her family and culture and religion are wrong to assign any shame to her. Can’t have it both ways.

    I have mixed feelings about any plaintiff suing anonymously. Murder victims, assault victims in general, burglary victims, all feel some shame at being victims, and all have to relive the crime in some fashion to pursue justice. Where do you draw the line in allowing anonymous charges? Allowing anonymous charges also reinforces the public perception that crime victims somehow deserved it or bear some responsibility for the crime. Better to have it all out in the open so the public knows the truth.

    Sort of related to the idea that punishing a criminal hurts his family who depend on him, his employer who needs him, costs taxpayers money, and other side effects. Once you start bringing in all these side issues, you make a real mess of things and tie your brain in knots.

    1. “Seems to me a bit of hypocrisy on the plaintiff’s part, that going along with the familial shame theme requires not taking the rapist to court.”

      The fact that the family and the broader community finds shame in being a rape victim doesn’t mean that she has to. How other people feel is beyond our control. If you believe the person who deserves blame for a rape is the rapist, that doesn’t mean that other people do to. If they think that blaming the victim is appropriate, then they will.

  5. If a devout person gets one sort of treatment before the law but an atheist gets another sort of treatment how can this not be an equal protection violation?

    1. “If a devout person gets one sort of treatment before the law but an atheist gets another sort of treatment how can this not be an equal protection violation?”

      If the circumstances are different. For example, if a devout person is guilty of the crime charged but the atheist is innocent, then they should get different treatment and it isn’t an equal protection violation. (works the same way with the roles reversed, if you prefer to imagine it that way.)

  6. This does not seem to me to be a case of religious bias in the decision. The court focused on the embarrassment and social stigma from the reactions of her community. The court had to explain why it thinks that particular community will react with stigma to prevent the court’s decision from being overturned as arbitrary and capricious but other than that, the source of the stigma is irrelevant. What matters is the magnitude of stigma in that community. A nonobservant Christian or atheist might face less stigma – or maybe not. It depends on the standards of their community.

    I read the court as merely recognizing that communities are different and the pseudonymity analysis should consider the community’s reaction as one of many factors.

    Okay, I’ll grant that the conclusion about community stigma appears based to be solely on the plaintiff’s possibly-self-serving statement. Maybe they should have required more evidence. But what evidence would be sufficient that could be collected without doing the very harm that the request for anonymity is supposed to prevent? How do you get evidence of public stigma then unring the bell to get your anonymity back?

  7. I think this is unmitigated bullbleep.

    First, Tremaine Aldon Neverson isn’t going to suffer “embarrassment and humiliation”? Or is the court simply deciding the CIVIL suit as it is being filed?!?

    He is publicly defamed, and he can’t even name his accuser. What kind of justice is that?

    Second, if one wishes to live under Sharia Law, there are places where one can — this is American where we have AMERICAN law and we need to expect that everyone who moves here is willing to live under it.

    Third, if she hadn’t been nearly naked, this wouldn’t have happened. I have no problem blaming the victim in a CIVIL suit because — well — comparative negligence or whatever it is called applies to all other kinds of civil suits, so why not here?

    If her vagina hadn’t been exposed, he wouldn’t have been able to allegedly insert his finger(s) into it. (There was a time when “good” girls wore underwear….)

    I once had an undergrad tell me that she had a “right” to walk into a frat party, stark naked, and expect that nothing bad would happen to her because “rape is against the law.” But so is auto theft — yet she’d never park her car with the keys left in the ignition.

    So we come back to where we started — if she didn’t want to be “embarrassed and humiliated”, she ought not have gone to that party attired as she was. If she truly is from a socially conservative Muslim family, I imagine that merely the pictures of her walking into the place would “embarrass and humiliate” her — so now we are to have a religious test for whom the paparazzi are allowed to take pictures of???

    1. if she hadn’t been nearly naked, this wouldn’t have happened. I have no problem blaming the victim in a CIVIL suit

      Good lord.

    2. “I think this is unmitigated bullbleep.”

      You’re right; your comment is unmitigated bullshit.

      And disgusting.

    3. “He is publicly defamed, and he can’t even name his accuser. ”

      If he is defamed, he should consider filing a defamation lawsuit. Then, as plaintiff, he can ask the court to consider HIS position in the community, and perhaps allow him to file under a pseudonym to protect him from receiving blowback from being accused of a crime he didn’t commit; if that seems appropriate at the time.

      If he is not defamed, but properly accused, tough shit for him if people find out he’s a rapist.

      “if one wishes to live under Sharia Law”

      Do you wish to live under Sharia Law? I don’t wish to live under Sharia Law. Nobody described in this story appears to wish to live under Sharia Law. Based on the fact that nobody said anything Sharia Law. But you show up late the party bleating about Sharia, very likely understanding very little about it.

      1. If he is defamed, he should consider filing a defamation lawsuit.

        He can’t. There’s an absolute litigation privilege against defamation.

        1. If he hasn’t been defamed, then he hasn’t been defamed.

          1. An obviously true and yet completely irrelevant comment, so… thanks?

            1. I answered the hypothetical under the terms given, specifically, that he had been defamed. If that term isn’t accurate, then neither is the answer that took that term as a given. That you need this explained for you, you are apparently out of your depth.

              1. Who said the term wasn’t accurate?

                1. “Who said the term wasn’t accurate?”

                  That would be you.

    4. “If her vagina hadn’t been exposed, he wouldn’t have been able to allegedly insert his finger(s) into it. (There was a time when “good” girls wore underwear….)”

      It’s been awhile since girls’ underwear was made of steel. Chastity belts are not currently in style…

  8. It’s a culturally deprived ghetto of a society where a man meets a random woman and attempts to insert his fingers in her vagina in a public place. This aligns with the prevalence of the “dick pics” phenomenon, or swiping right for sex. Or is it left. Anyway the younger generations are in for some real shocks on the lessons of cause and effect and consequences of their actions.

  9. It seems some of the commenters are mis-reading the issue here.

    CMIIW – but the ‘pseudonymity’ is just for public records.

    The defendant still knows the identity of plaintiff.

    Otherwise the defendant would lose 6A rights.

    Or am I the one mis-reading this?

    1. The defendant gets served with the complaint, which must spell out with specificity what the alleged wrongful act(s) were, so that they can prepare a defense before showing up in court. So, the plaintiff has to put enough details in the complaint that the defendant’s legal team can determine what their guy did to whom, and when.

  10. We know that honor killings are a thing. It doesn’t seem too much of a stretch to believe that in some cases a plaintiff will be putting themselves in serious physical danger by bringing a sexual assault complaint.

    I don’t see a problem with accounting for this. Let the plaintiff request it, and put the burden on the defense to show by clear and convincing evidence that it isn’t the case. That should safeguard against abuse.

    1. “We know that honor killings are a thing.”
      We do, but we know these are culural, not religious, so we know they are irrelevant to this woman who doesn’t belong to a culture that practices honor killings.

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