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Indiana Judges Disagree: Should Targets of Protective Orders Be Pseudonymous?

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From Judge Ezra Friedlander's opinion, joined by Judge Paul Mathias, in R.W. v. J.W., decided by the Indiana Court of Appeals Friday:

R.W. appeals from the entry of a permanent protective order against him, contending that the trial court erred by denying his motion to dismiss the petition for an order of protection filed by J.W., a woman with whom he was in a romantic relationship, and by finding that there was sufficient evidence to support the legal conclusion to issue the order. We affirm….

To sum up the evidence before the trial court and in the words of the trial court, "[s]ome time between August 10th and September 11th the matter blew up and all of the parties involved, [K.B.], [R.W.] and [J.W.] were saying nasty things to each other, back and forth imploring the other to leave them alone." [K.B. was an acquaintance of J.W., and an ex-girlfriend of R.W.] The evidence and inferences therefrom supporting the issuance of the protective order in favor of J.W. was that K.B. was with R.W. after his relationship with J.W. soured. When they were together, R.W. had shared with J.W. his plans to send the video of a nude K.B. to the man she was then dating. A part of the plan involved creating a new account on social media through which to reach that man at work. J.W. counseled against R.W.'s plan.

R.W. left a threatening voicemail for J.W., which made J.W. feel threatened and terrified. R.W. made several attempts by various means to contact J.W.'s husband. During a period of time where K.B. was with R.W. in Chicago, she [presumably K.B.-EV] downloaded semi-nude and nude pictures of J.W. from R.W.'s password-protected phone. She then sent them to J.W. and R.W. with her own disparaging commentary about what was depicted, further adding commentary purported to be from B.O. {a man … with whom J.W. had previously had a sexual relationship}.

R.W. contacted J.W. to inform her that "somehow" K.B. had come into possession of those photographs. He did nothing to stop any action by K.B. despite this awareness. K.B. feigned sympathy for J.W., adding that she did not want those photographs to come into the hands of J.W.'s four young sons or husband or be disseminated to her children's school and through the City of Valparaiso even though "someone" had told her that those actions were a possibility.

Just prior to the hearing set for the Illinois protective order, J.W. discovered that a Bumble account had been created with her email address containing pictures of her, one of which she had only sent to R.W. and the other of which had to be taken down from the account. The words used in that account to describe J.W. bore a striking similarity to the language used by K.B. when discussing her theory that J.W. had herpes and that her behavior was trashy or tramp-like.

At the hearing on J.W.'s protective order request, R.W. refused to answer 32 separate questions pertaining mostly to how K.B. came into possession of the pictures of J.W. that were meant only for R.W. and the creation and existence of the Bumble account, citing his Fifth Amendment privilege against self-incrimination. "Although the refusal to testify in a civil case cannot be used against the one asserting the privilege in a subsequent criminal proceeding, the privilege against self-incrimination does not prohibit the trier of fact in a civil case from drawing adverse inferences from a witness'[s] refusal to testify."

The trial court correctly found from the evidence and the inferences from the evidence that "there is no evidence that R.W. tried to stop or block [K.B.'s] harassment or stalking behavior utilizing or threatening to use the photos against [J.W.]," and correctly concluded that "like [K.B.], [R.W.] was engaged in bringing harassment to bear on [J.W.]" There was more than sufficient evidence to support the trial court's findings of fact which, in turn, support the conclusions of law in favor of granting J.W.'s petition for a permanent protective order against R.W….

And here's Judge Terry Crone's concurrence:

I agree with the affirmance of the protective order against Rafer Weigel, but I write separately because I respectfully disagree with my colleagues' decision to refer to Weigel by his initials instead of his name.

No statute, court rule, or court policy entitles Weigel to anonymity. In fact, pursuant to the Rules on Access to Court Records adopted by the Indiana Supreme Court, Weigel's name is presumptively accessible to the public. See Ind. Access to Court Records Rule 4(A) ("A Court Record is accessible to the public except as provided in Rule 5."). Some of the stated purposes of those rules are to "[c]ontribute to public safety" and "[p]romote governmental accountability and transparency[.]"These overlap with the stated purposes of the Civil Protection Order Act, which was enacted by the Indiana General Assembly "to promote the: (1) protection and safety of all victims of domestic or family violence in a fair, prompt, and effective manner; (2) protection and safety of all victims of harassment in a fair, prompt, and effective manner; and (3) prevention of future domestic violence, family violence, and harassment."

As described in lurid detail above, Weigel threatened and publicly humiliated J.W., who sought and obtained a protective order against him. Weigel has challenged the sufficiency of the evidence supporting that order. If we had ruled in his favor, he could have petitioned to expunge all records relating to the protective order pursuant to Indiana Code Chapter 34-26-7.5. But since we have affirmed the trial court's determination that Weigel harassed J.W., I can think of no principled reason why this Court should shield his identity from the public.

Indeed, naming the perpetrator of such depraved acts could only contribute to public safety, promote governmental transparency and accountability (by this Court and by any law enforcement agency that might have occasion to enforce the protective order, respectively), and prevent future harassment of J.W. and others….

For a media account of the underlying scandal, see the Chicago Tribune (Sophie Sherry); Weigel had been a Chicago TV news anchor.

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  1. The trial court correctly found from the evidence and the inferences from the evidence that 'there is no evidence that R.W. tried to stop or block [K.B.'s] harassment or stalking behavior utilizing or threatening to use the photos against [J.W.],' and correctly concluded that 'like [K.B.], [R.W.] was engaged in bringing harassment to bear on [J.W.]'"

    Would I be wrong if I assumed that R.W.'s failure to try to stop K.B.'s harassment wouldn't, by itself, be a sufficient bases for the issuance of the protective order? Meaning, if the court didn't find that R.W. otherwise harassed J.W., the protective order wouldn't have - or shouldn't have - been issued?

    Also...

    "...the pictures of J.W. that were meant only for R.W. ..."

    Is that particularly relevant? Would R.W. have had some duty not to share those pictures with, e.g., K.B. because they "were meant only for R.W.?" Absent some kind of confidentiality agreement or perhaps copyright or right of publicity issues, do ex-lovers not have a right to share photos which legally came into their possession? Under what circumstances would they not have such a right?

    1. My kingdom for an edit button!

    2. Regarding your first question, good question! (IANAL) Part of me thinks R.W. should be held responsible for not trying to stop a crime (in the non-legal sense). But cops apparently don't have any legal duty to try to stop a real crime (such as the cop at the school shooting in Florida who just waited outside until the shooting was over, and was fired and (I believe) reinstated with no criminal charges). If a friend tells me he is going to shoplift and I don't step him or try to discourage him or tell store employees, am I liable? Assuming I don't actually encourage him or help him, of course.

      So as much as I personally think there should be some consequences, I don't think there are, legally.

    3. Regarding your second question, isn't this sort of related to a will which leaves property with strings attached, such as if married by age 25? Or is that only a feature of fiction? How about real estate with covenants, even when not illegal (can't be sold or rented to blacks)? This differs from an easement granted to a neighbor or utility.

      Those are all conditions applied after the sale or bequeath, and have always seemed dodgy to me. How can a sale be undone if the new owner violates the conditions?

      But if any of those are valid, legally, could not the same principle be applied to these pictures? "I send these pictures which are for your eyes only." That would be unusual wording, I think; more likely would be "I send these pictures for you only" which doesn't expressly bar publishing them or even selling them.

  2. Sending a person purloined seminude photos and claiming she has herpes and is a tramp is emotionally disturbing, but isn’t a true threat. Given his position that protective orders for speech activities should apply only to true threats and not to speech which is merely emotionally disturbing, I’m surprised Professor Volokh is commenting only on the anonymity and not the underlying protective order.

  3. Was R.W.'s name already known to the public such that the majority's decision to anonymize the order could have had not effect? If not, I think it's pretty uncollegial (at the very least) of the dissenter to put R.W.'s full name in his opinion. Doing so may have the effect of undoing the court's order.

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