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From Doe v. Neverson, a nonprecedential opinion decided today by the Eleventh Circuit (Judges Wilson, Jordan & Anderson):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