Right of Access

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.).