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Should Civil Defendants Accused of Sexual Assault Be Allowed to Proceed Pseudonymously?

|The Volokh Conspiracy |

A well-crafted argument from a Connecticut court filing (by lawyer Doug Varga of Lucas & Varga), which also rests in part on the plaintiff's request to proceed pseudonymously. (Alleged sexual victims are often allowed to proceed pseudonymously in civil cases.) But how is this case different from criminal sexual assault prosecutions, where the defendant is routinely named? And is it different enough from civil lawsuits over other serious but nonsexual intentional behavior—e.g., alleged fraud or even alleged intentional homicide—where the accusations against a potentially innocent defendant can still badly damage the defendant's reputation, even if the defendant is eventually vindicated in court?

From a motion in Doe v. Yellowbrick Real Estate LLC (Conn. Super. Ct.):

Plaintiff filed her Complaint under a pseudonym, claiming that her allegations of sexual assault raise privacy rights that override the public's interest in knowing her identity. The Court granted preliminary relief pursuant to Practice Book § 11-20A and scheduled a hearing regarding Plaintiff's continued use of a pseudonym for August 17, 2020. During that hearing, the Court (Krumeich, J.) granted the Plaintiff's request to submit additional evidence in support of her motion, and agreed to continue the hearing to a later date to allow her to do so….

The Defendant denies the allegations in Plaintiff's Complaint and in the Affidavit supporting her application to proceed under a pseudonym, and will vigorously defend the salacious claims made against him. Nevertheless, Defendant will suffer irreparable and unnecessary injury if the Plaintiff's allegations against him remain open to the public. Accordingly, the Defendant moves the Court to allow him to use a pseudonym in this case and that the Court's file be sealed to protect his interests….

When deciding a motion seeking permission to use a pseudonym, "the trial court must consider whether a substantial privacy interest exists to override the public's interest in open judicial proceedings. Such consideration is not reserved solely for questions of court closure or the sealing of documents, but extends to whether any individual may proceed by a pseudonym." The burden is on the party moving to proceed anonymously ….

"[N]ot all substantial privacy interests are sufficient to outweigh the public's interest in open judicial proceedings. The ultimate test for permitting a [party] to proceed anonymously is whether the [party] has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings … A party's desire to avoid economic and social harm as well as embarrassment and humiliation in his professional and social community is normally insufficient to permit him to appear without disclosing his identity …

"The most compelling situations [for granting a motion to proceed anonymously] involve matters which are highly sensitive, such as social stigmatization, real danger of physical harm, or where the injury litigated against would occur as a result of the disclosure of the [party's] identity …. There must be a strong social interest in concealing the identity of the [party]." "The privilege of using fictitious names in actions should be granted only in the rare case where the nature of the issue litigated and the interest of the parties demand it and no harm can be done to the public interest." …

"Character is much easier kept than recovered." Application of Maria C., 294 Md. 538, 540 (1982) (Smith, J., dissenting) (quoting Thomas Paine, The American Crisis XIII (1783)). The Defendant respectfully submits that he will be unable to recover his character and reputation once they are lost due to the public's access to the claims made against him in this case.

In a publicly-available Complaint, the Plaintiff has accused the Defendant of committing a sexual assault and attempting to rape her. The Plaintiff was a 32 year-old adult at the time of the alleged assault. The Plaintiff did not report the alleged assault to the police. The Plaintiff claims the assault occurred while she and the Defendant were alone, so there are no witnesses to consult. The Plaintiff's allegations make clear that she brings a classic case of "he said, she said" to recover money from the Defendant. Plaintiff has every right to file a lawsuit, and she ultimately will bear the consequences if it is determined that her allegations are false. However, she should not be allowed to ruin the Defendant's reputation in the process.

Personal, societal, and professional considerations fully support the Defendant's motion. The Defendant has never had non-consensual physical contact with the Plaintiff. The Defendant has never threatened the Plaintiff with non-consensual physical contact. The Defendant has never physically detained the Plaintiff or impeded her freedom of movement in any way. The Defendant has never engaged in, or even been accused of engaging in, the type of behavior alleged in the Complaint, whether with respect to the Plaintiff or any other person….

The Defendant acknowledges that he and the Plaintiff often worked closely together and had a flirtatious relationship. He also acknowledges that (at the Plaintiff's request) he and the Plaintiff shared intimate photos of each other on their respective cell phones. However, he vehemently denies the allegations of sexual assault and related inappropriate conduct the Plaintiff includes in her Complaint and in the Affidavit supporting her application to use a pseudonym in this case.

The Plaintiff apparently did not report the alleged sexual assault to the police; if any such complaint was made, law enforcement authorities obviously did not pursue the claim because the Defendant has never been contacted about any such charge. The Defendant did not become aware of the Plaintiff's allegations concerning the alleged sexual assault she describes in her Complaint until December 12, 2019—nearly seven months after the date on which she claims it took place.

The Defendant currently enjoys a stellar reputation in the community. He was a member of the United States Army, serving from 1997 to 2003—including a seven- month tour of duty in Afghanistan following the terrorist attacks of September 11, 2001. He received an honorable discharge in 2003, having attained the rank of Sergeant. The Defendant has never been arrested or charged with a crime (other than a minor traffic violation). The Defendant has been married for 12 years and has three daughters, ages 1, 7, and 9. He has been an active member of a church community in Stamford for more than 14 years, and has served as a mentor in its young men's ministry program.

The Defendant also has an unblemished professional reputation. He has been a licensed real estate professional since 2013. He has provided mentoring services to professionals affiliated with his employer. These mentoring activities are important to Defendant and to his employer. He has been, and continues to be, involved in media and marketing campaigns for his employer.

The public filing of this lawsuit already has interfered with the Defendant's ability to engage in his profession as a licensed real estate professional, as a mentor to his colleagues, and as an active contributor toward his employer's marketing of its services. For example, the Defendant recently declined a request for a media outlet to feature him in a news article for fear that the false and salacious allegations made in this lawsuit would be discovered….

The false and salacious allegations made against Defendant in this case currently are open to the public and already have had an adverse effect on his personal and professional relationships. If the allegations made against the Defendant in this case remain open to the public, he will continue to suffer additional irreparable harm to his name and reputation in that there is a legitimate risk that the allegations will become known to, and cause harm to, his children, members of his church, professional colleagues, and potential clients….

The Defendant submits that, for him, this case involves matters of a highly sensitive and personal nature. Indeed, the Plaintiff's allegations against him—that he committed a sexual assault and threatened her if she refused to have sex with him—could not be more sensitive or personal, not to mention damaging to his reputation.

There can be no doubt that if the Plaintiff's claims remain in public view, the Defendant will suffer familial, social, and professional stigmatization and irreparable damage. The Defendant fully intends to defend himself against the false and salacious allegations made against him in this case, but he should not be forced to do so in public. "If a plaintiff in a civil case such as this one were to fabricate charges of sexual assault, the defendant's reputation might suffer irreparable harm during the proceedings, even if the plaintiff ultimately fails to prove him liable. In such a case the use of a pseudonym by the defendant could prevent the completely unjustified damage to his reputation."

In light of the strong potential for irreparable harm, numerous Superior Court judges have allowed parties defending against claims of sexual assault or sexual abuse to use pseudonyms. [Citing some such cases, and one to the contrary; my review of the Connecticut trial court decisions suggests that they are fairly evenly split on the subject.-EV]

In Doe v. Doe, 2014 WL 4056717 (Conn. Super. July 9, 2014) (Markle, J.), the adult plaintiff alleged that the adult defendant sexually assaulted her when both were minors. Both parties moved to proceed in the case using pseudonyms. The trial court acknowledged the strongly-contested defense to the plaintiff's allegations, which involved conduct alleged to have occurred 41 years earlier when the plaintiff was five and one-half years old and the defendant was 13 years old. The court further found "that the defendant is now 54 years of age and she has strong ties to the community; that the sensitive nature of the allegations would like cause social stigma and would likely cause irreparable harm to the defendant." Based on these findings, the court held "that the burden has been met of establishing the existence of a substantial privacy interest that outweighs the public interest in open judicial proceedings."

Like the Defendant in Doe v. Doe, the Defendant here is an adult with strong ties to the community, and the sensitive nature of the factual allegations asserted against him undoubtedly will cause social stigma and irreparable harm.

Finally, the Defendant seeks balance and fairness. The Defendant submits that he should receive no less insulation from social stigmatization and personal and professional harm than the Plaintiff. If the Court is not inclined to provide the relief requested in this motion, the Plaintiff likewise should be required to proceed in this action without the use of a pseudonym: "In choosing to file a civil lawsuit for money damages, the plaintiff has determined to shed at least some degree of privacy in favor of claiming compensation from the defendant for the tortious conduct she alleges against him. Also by filing the case under the defendant's true name, the plaintiff has declined to afford the defendant the opportunity utilized by the plaintiff, to proceed via pseudonym." Doe v. Martin, 2004 WL 2669274 at *2 (Conn. Super. Nov. 1, 2004) (Pittman, J.).

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  1. I feel like, at least for me the most convincing argument is that a civil suit was filed versus a criminal one. I am aware this is not a legal argument, just that it seems more readily to work in favor of granting pseudonymous usage.

    As well in an age where mere accusations are enough for some to render the defendant guilty and worthy of being vilified and threatened, this seems a reasonable protection for a civil suit where the plaintiff requests anonymity.

    Either both or neither should have the benefit here, at least to me. Again, not a basis in legality. Just more of a ‘good for the goose’ kind of thing.

  2. Sounds fair to me. If she can be anonymous so should he.

    1. Yeah, that is about how I feel. If the plaintiff requests to proceed under a pseudonym, then the defendant should get to as well. Anyone can file a civil case, unlike a criminal case which at least has some protections of having to convince the police and prosecutor to proceed. So let them have pseudonyms until there’s an actual decision.

  3. Neither party should be anonymous. We can’t have a fair system without transparency. For example, a comment claims that an accuser wrote an op-ed under her real name attacking Laura Kipniss while suing her as a Jane Doe. Is this true? Who knows? And we are deliberately being kept in the dark.

    1. The public is the ultimate enforcer of all judicial decisions, and the more they conduct cases in secrecy, the less the public will back them.

      If people want privacy, stay out of the public courts. If that discourages them from seeking justice, so be it. Your private problems are not my concern.

      1. Which is another reason I’m more sympathetic to a defendants request for pseudonyms than a plaintiffs. The defendant doesn’t get a choice in being there. My sense of justice says we should be sensitive to preventing the process from being the punishment.

        1. I agree to a point; but I would resolve it with loser pays, which should include all the inevitable repercussions. This also applies to criminal procedures: for instance, charges should always be brought to trial unless the defendant agrees to dropping. Any acquitted charges should be deducted from the convictions, and if the total comes out negative, the prosecution is the loser and has to pay the difference plus defendant costs. IOW, discourage overcharging.

          1. If the loser can afford to pay….then what? Your disincentive is gone.

            1. That’s a problem regardless. Take it from the lawyer who brought the case? Frankly, I’d like to see something in a justice system which is biased towards being poor. There’s not much else is.

              But in the bigger picture, in my libertopia, all claims would be for monetary damages period, and if you owe, say, $10,000 in unpaid verdict restitution, then you can’t file claims for less than $10,000. In the extreme, someone owing restitution could be robbed blind, as long as each theft was less than $10,000. It would be a strong incentive to pay restitution. Some people might be satisfied with the loser walking around all day with a humiliating sign. Wouldn’t matter to me as long as it was agreed to.

              And that would be the counterbalancing incentive for the poor to not file frivolous claims.

              1. And how would you address the ‘Raymond Donovan’ problem? I do not think your framework is going to work.

                The justice system should have no bias whatsoever. Rich and poor alike must be judged by the same measure.

          2. Any acquitted charges should be deducted from the convictions

            What does that mean?

            1. I assume:
              You are changed with bank robbery (10 year sentence if convicted) and kidnapping (15 year sentence if convicted). You are acquitted re robbery but convicted on kidnapping. Your max 15 year sentence is now a max of 5 years (ie, 15-10).

              I think it’s a sill and un-serious idea. But–assuming I’m correct–there it is.

              1. sill = silly

                stupid lack of Edit button. 🙁

              2. Imagine if you’re convicted of bank robbery but acquitted of kidnapping!

                1. Heh. Really nice point. I guess the prosecutor owes you 5 years in some form. Maybe pay for your rent? Put you up in one of her guest bedrooms?

                  As I said before; silly and un-serious proposal. Reductio ad absurdum.

              3. How would the prosecutor “pay the difference” as Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf is advocating?

          3. The side effect of your proposed system is that an unethical prosecutor is forced to double down on harassing the defendant. “OK, you were innocent of that one. But you have to be guilty of something, and now I have to find out what.”

            There’s a case from Oregon where the prosecutor wanted to charge a crime, but the grand jury returned no bill. Defense attorney didn’t notice this important development, and advised client to accept the plea deal. Fast forward to the defendant about to be released, and the release being in the local newspaper, which brings it to the attention of one of the grand jurors, who remembers that they voted not the charge the guy. So, the defense attorney has to write a letter to the former client advising that a valid malpractice claim exists, plus a claim against the county as restitution for months spent in jail. The local DA then turns the guys life upside-down, trying to find something, anything they could have charged this particular defendant with to defeat the claim against the county for putting him in jail after being no-billed in the Grand Jury.

      2. “If people want privacy, stay out of the public courts. If that discourages them from seeking justice, so be it. Your private problems are not my concern.”

        Because if any word spells justice, it’s vigilantism. Nothing like a justice system that doesn’t even pretend to offer justice.

  4. How, precisely, is “social stigmatization” different from “economic and social harm” or “embarrassment and humiliation in his professional and social community”? How is the former a justification for pseudonimity but the latter is not?

    Credible threat of physical harm is a defensible standard. And I’m sympathetic to claims that social harm might justify pseudonimity. I’m unsympathetic to the claim that you can reach a different legal result depending on which synonym you use to describe the situation.

    I am also unsympathetic to claims that the plaintiff’s alleged social stigma automatically outweigh the defendant’s alleged social stigma. False accusations are very damaging whichever side makes them. Remember that this is during the period when the facts have not yet been determined. My vote would be to allow pseudonymity more liberally for both parties during the trial but revoke it for everyone once the verdict is issued. Then, the public will know not only that justice was done but by whom and to whom.

    1. I’m going to take a wild guess that its probably a legal term. In common speech no difference, but in a court case there is probably one.

    2. My vote would be to allow pseudonymity more liberally for both parties during the trial but revoke it for everyone once the verdict is issued.

      One thing I’ve seen is that when cases proceed under real names, especially for sexual assault cases, other plaintiffs/alleged victims will come forward. See Harvey Weinstein and Bill Cosby as an example. If the case proceeds anonymously, I don’t understand how the additional people would know to come forward. Thoughts?

      1. Same argument could be made for the plaintiff. When her name is known its more likely that evidence that would favor the defendant is to come out. It didn’t go to a trial, but the Rolling Stones girls accusations against the frat really fell apart once people knew who she was. Once her name was out there, multiple realized the person that had told them fabrications in the past was telling new ones.

      2. In addition to Illocust’s comment about balance, I would add that it’s a tactical decision. If the plaintiff wants to go public with names, the other side won’t (and probably can’t) stop them. That means the plaintiff has to balance the harm of publicity against the potential benefit of recruiting co-plaintiffs.

        That still leaves the problem of the plaintiff wanting to out the defendant in order to recruit co-plaintiffs. I don’t know how to solve that. The defendant is presumed innocent and false accusations cause real harm. I suppose that becomes a decision that a judge would have to make on a case-by-case basis. Bear in mind that I did say “allow pseudonymity more liberally”, not “universally”.

        1. “false accusations cause real harm.”

          they can. But whether or not they stick depends on the history of the defendant.

  5. How old was the person to whom this ‘church-going family man’ with ‘stellar’ reputation sent ‘intimate photographs’ during a ‘flirtatious relationship? (but with whom he denies ‘non-consensual physical contact?)’ That’s a point the provided portion of that motion seems to omit but which seems relevant.

    1. From the article, ” The Plaintiff was a 32 year-old adult at the time of the alleged assault.”

      Reading is fundamental.

      1. You are correct.

  6. Considering the current climate, he’s got a better argument than she does that this court case will result in social stigmatization. Mere accusations have resulted in people losing their jobs, and no amount of proof they were impossible has served to undo the harm of being accused.

    1. The Raymond Donovan problem.

      1. EXACTLY — I was trying to remember his name for the “and what office do I go to get my reputation back?” quote.

        1. Glad I could help. I remember distinctly when that happened.

  7. The questions involved here, involving balancing values and priorities, are political questions, not constitutional ones.

    It does seem to me there’s a good argument here that what’s sauce for the goose should also be sauce for the gander. If she is entitled to anonymity, so is he.

    1. Regardless as to which is the accused and which the accuser.

  8. “how is this case different from criminal sexual assault prosecutions” — criminal prosecutions are brought in the name of “the People”, so the people have a stronger right to know what’s done in their name. Criminal prosecutions are less likely to be brought with the primary aim of tarnishing a reputation.

    But what stops the plaintiff from publicly accusing the defendant outside of court?

    1. “what stops the plaintiff from publicly accusing the defendant outside of court?”

      Slander or libel suits.

      If the allegation is made in the complaint in a civil case, then its privileged.

      Once made in the pleadings, then reciting the alleged facts is also generally privileged. That is why media can safely run stories based on the allegations.

      1. So Bob…I get what you’re saying. But what happens when you are an upper level exec, making a hefty salary and bonus….and you get falsely accused by some unemployed trashy tramp and lose your job. And become unhireable because every employer does a google search and background check.

        So you sue the tramp for slander and libel…and you win. Good luck collecting a lifetime income from the trashy tramp. The trashy tramp walks and your professional life is destroyed, and so is your ability to earn a livelihood.

        Then what? Tough noogies?

        1. Beats me. I was just pointing out what in theory is the remedy.

          He could shoot her I guess.

          1. Yeah, what I thought. Tough noogies. 🙂

        2. I guess this is an argument to live one’s life in such a way that false accusations don’t stick.

  9. I know this is a civil case, but it has always seemed unfair to me that in certain criminal cases, the accuser’s name is withheld and has a face protected by a big black dot, while the Prosecution is free to hold press conferences proclaiming the name of the accused and the guilt of the person who is supposed to be presumed innocent. As others have said with respect to this case, even more so in a criminal case, if she is entitled to anonymity – even if for good reason – then so should the defendant.

  10. that motion makes a very good argument but man, it includes so many details about the defendant they can probably be discovered just from that. Army during a set time period, made sergeant, combat tours, 3 kids (WITH their ages), current real estate agent. Put all of that into google and see who pops up….

  11. “Should Civil Defendants Accused of Sexual Assault Be Allowed to Proceed Pseudonymously?”

    Should they? Depends, was defendant in civil action previously convicted in criminal court of a sexual assault? If not, then pseudonymous defense seems appropriate. If they’re already convicted of sexual assault, then being accused of sexual assault doesn’t have the same impact on defendant.

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