Free Speech

Pseudonymity Controversy in Kevin Spacey Sex Abuse Case

May plaintiffs alleged sexual assault proceed pseudonymously, when the defendant is being publicly named?

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Rapp v. Fowler is a sexual assault case against Kevin Spacey (whose legal name is Kevin Spacey Fowler), "aris[ing] out of alleged sexual misconduct involving the two then minor plaintiffs 34 and 40 years ago." One of the plaintiffs is Anthony Rapp, but the other wants to proceed pseudonymously as C.D. Should he be allowed to do so?

Pseudonymity is a rare exception in American court cases (especially in federal court), though it sometimes is allowed when sexual assault claims are involved. Here is an excerpt from C.D.'s argument for pseudonymity:

C.D. feels extreme anxiety and psychological distress at even the thought of being required to proceed publicly in this action. As a result, C.D. has reluctantly decided that in the event the Court denies his motion to proceed anonymously, he is emotionally unable to proceed with the action and will discontinue his claims…. Indeed, denial of the motion [would force] C.D. into a Hobson's choice—reveal to the world forever the traumatic events suffered as a minor at the hands of Kevin Spacey or abandon his efforts to seek justice for these egregiously wrong acts.

And here's one from Fowler's argument against pseudonymity:

Mr. Fowler categorically denies C.D.'s claims. They are simply untrue. But he is skeptical C.D. will walk away from claims for which he asserted just weeks ago he is seeking $40 million in damages. And if C.D. chooses to dismiss his claims because this Court follows the law and facts in denying the Motion, then that is no one's decision but his….

Mr. Fowler has not sought and does not seek special treatment. He simply wants C.D. to play by the same rules applicable to all litigants and those by which Mr. Fowler was  forced to abide when C.D. levied his public accusations against him.

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  1. You can’t ask the public to back the verdict you think you deserve if the public doesn’t know who you are.

    1. You can ask…

      1. Yes 🙂 my mistake

        1. No time to do a deep dive but I did read both letters and the only case cited was in the letter penned by Spacy’s counsel. In that case, the judge denied the motion of the alleged “victim” to plead pseudonymously.

          One of the great hallmarks of Anglo / American law is the right of one to publicly face one’s accuser. Alleged victims of sexual assault are not special exceptions. If anything, it is even more important to require those who aver that they were molested 30 years ago to step right up to the microphone and be prepared to be ruthlessly cross-examined.

          1. A pseudonymous plaintiff’s real name is still released to the defendant, and they still have to appear in court. Their names just aren’t on the public documents of the case. I’m not in favor of anonymity except for those who are currently minors (not just minors when the action occurred), but it’s not like NO ONE knows who they are. It’s just not public.

  2. I’m surprised (as, likely, are many other readers) that the statute of limitations has been extended so much for cases like this. Extending some, so that an abused minor will have at least a year or three after reaching adulthood makes perfect sense, of course. But extending for a period of decades? I see lots of procedural due process concerns, in addition to the laudable goal of allowing victims to seek redress for their harms. (I’m speaking in generalities…I know nothing about this particular case.)

    I find the request for anonymity here to be particularly weak. Of course sex assault victims are vulnerable. But demonstrating that decades-old abuse should override the default “open” standards seems incredibly high. Or, at least, should be.

    1. I would further say that requests for anonymity are stronger the younger the victim. The passage of time weakens the plaintiff’s arguments for vulnerability here, too.

    2. because for all our pretensions we’re still essentially puritans that can’t get over our hangups about the S thing sex crime allegations have been elevated into this super special category above everything else, even murder and genocide where due process and other protections can be ignored.

    3. I’m sure the statute of limitations for a criminal case has expired, but I know the Sol for a civil case is much longer.

      Dylan Farrow still has the option of trying to sue Woody Allen for a few more years… although I’m sure she won’t as she’d almost certainly lose.

  3. “Indeed, denial of the motion [would force] C.D. into a Hobson’s choice—reveal to the world forever the traumatic events suffered as a minor at the hands of Kevin Spacey or abandon his efforts to seek justice for these egregiously wrong acts.”

    That’s a dilemma, not a Hobson’s Choice.

    1. I also wondered about that. Is it considered bad form to point out (in a responsive brief; in oral argument; in a written decision) that a word or phrase is being used absolutely incorrectly?

      1. I don’t know about bad form, but — as a non-lawyer — unless either the correct meaning of the phrase or use of the correct phrase would support my side, I would think it an inefficient use of the space and (judicial) attention that is available to me. It is better to graciously let the error slide than to spend scant resources on scoring irrelevant points.

    2. Isn’t it both?

      1. 12,
        My first response was going to be, “No. If you have no real choice, then it’s Hobson’s. If you have 2 bad choices, then it’s a dilemma.”

        But even though that’s the way I learned it; it might not be the way it’s used. I recall RGB using it in an arbitration case. If an employer has a mandatory arbitration clause, then she can either quit or accept this clause. I would think of this as a “dilemma,” but RGB saw it as a Hobson’s Choice.

        So, you might be right. I guess there is no clear line between these two terms.

        1. RGB: A woman of color?

          1. RGB, RBG. Potayto, Potahto.

    3. Actually, no, this is one of the rare correct usages of the phrase “Hobson’s Choice”.

      The phrase comes from the practices of a Mr Thomas Hobson, a livery stable owner in Cambridge. He had a fairly large stable of horses but the only “choice” he allowed his customers was to take the horse in the stable closest to the door. A “Hobson’s Choice” is any ‘take it or leave it’ scenario.

      Henry Ford’s “you can have it in any color as long as that’s black” is another example. In the scenario above, denial of the motion would indeed force the plaintiff to either make the case without anonymity or abandon the case entirely.

      Note that calling something a “Hobson’s Choice” is usually a pejorative that attempts to present the other side’s policy as arbitrary and capricious while carefully ignoring the reasons for the policy. In the original Hobson’s case, the policy allowed him to control his stable and kept the best horses from being overselected. In Ford’s case, it kept costs way, way down (because the black paint he used bonded better and dried much, much faster than the other color paints available). And in this case, the policy prevents all sorts of mischief by unscrupulous plaintiffs.

      1. Excuse me – typo. That should have been “in the stall closest to the door.”

  4. If C.D, gets to stay anonymous and loses for whatever reason, does Fowler get to know who he is so he can sue for defamation? If C.D. loses his motion to proceed as C.D. and walks away rather than be publicly known, same question.

    1. Spacey (aka Fowler), like all defendants, know who the plaintiff that is suing them is. Anonymity applies to the caption, written submissions, and public statements. But the defendant isn’t in the dark about the identity of the plaintiff.

      The real question is if he is allowed to proceed anonymously but loses the law suit does that automatically lift the order an allow, in fact require, that his real name be listed in court records.

      1. I don’t see how, or why, it could automatically lift the order. If there was sufficient reason to grant the order before the court’s decision, there should be some space for uncertainty — perhaps the fact-finder believes the allegations to have been 45% likely, rather than 51% — where the rationale still applies to an losing plaintiff.

        If the court reviews the available evidence after the decision, and finds that the complaint missed the mark widely, that should support lifting an anonymity order; but that should be based on a fact-specific inquiry, rather than automatic.

  5. Is there an order prohibiting Spacey from disclosing C.D.’s identity? Or does Spacey choose to stay silent about who is suing him? I did civil litigation for 30 years, but never had anything like this.

    1. I’ve never dealt with this issue in my own 30 years of practice. But, absent a court order; there’s nothing preventing him from disclosing the name of his accuser. It’s hard for me to imagine how any court order blocking Spacey from mentioning the name of a non-minor accuser could pass First Amendment scrutiny. But maybe we’ll hear differently from other lawyers who work in this field?

      1. A request of a plaintiff alleging sexual assault 30 years ago to proceed pseudonymously should be promptly denied and sanctioned.

    2. In my experience, when the court rules allow a party to proceed anonymously, usually a minor, the parties are expected to likewise keep the party’s name confidential.

      1. “Expected” is doing a lot of heavy lifting here. Do you mean: The judge will be annoyed at the disclosing party? Or do you mean that the judge will directly sanction this party? (eg, money sanctions; adverse pre-trial rulings)

  6. If I accuse someone of beating me to a pulp decades before when I was a minor. Can I also request with the same chance of success to be anonymous because it was traumatic or do the alleged acts have to include them touching my privates in order for the trauma to be good enough to hide my identity?

  7. Start with this: What were you doing on March 3, 1981? I’m sure you weren’t sexually assaulting CD, who says you were doing just that, but what WERE you doing? I’ll help you out: It was a Tuesday.

    In my case, I was a lawyer, and I filled out time cards every working day, so I could (if the time records are still extant and I could access them) say that I spent 4.5 hours researching something, and 1.5 hours conferring with opposing counsel, etc., but unless my records showed that I was 3,000 miles away from where CD says the offense occured, I couldn’t use them to disprove CD’s accusation.

    So because of whatever provision of law trumps the statute of limitations in this case, I (or you) start out behind the 8-ball. Now, add to that this: The Plaintiff, who is suing me (you) for $40 million wants the public not to know his name. It would be too traumatic. I’m a simple man. I think if you want the $40 million you need to stand up and demand it, in you own name. If doing so is too traumatic, then don’t sue for the $40 million.

    1. Agreed. That is why we have a statute of limitations.

      In my view, the plaintiff’s counsel should have to write Rule 11 a thousand times on a chalkboard.

    2. EXACTLY — and you’ve also summed up a lot of the kangaroo kort stuff in higher education where you would be asked where you were the entire month of March…

    3. “…so I could (if the time records are still extant and I could access them)…”

      They almost certainly are not.

  8. “a Hobson’s choice—reveal to the world forever the traumatic events suffered as a minor at the hands of Kevin Spacey or abandon his efforts to seek justice for these egregiously wrong acts.”

    I have a simple solution — he can cede the entire judgment ( including the contingency fee) to the state.

    If his goal is to simply hold Spacey accountable, this will accomplish that — and I’m guessing that there are ways that the money could be earmarked to provide services to sexual abuse victims and such.

    But if this is a Get Rich Quick scheme, which far too many of these suits are, then he deserves to be dragged through the mud as the gold-digger he is…

    1. I think you are forgetting that lawyers do work for a living. So, if we toss out the silly requirement of insisting that the lawyers give up their contingency fee…it’s a plausible idea. And, in fact, it’s not uncommon for a plaintiff or group of plaintiffs to publicly commit to donating their entire (subtracting legal expenses) award to a specific charity or to a specific type of charity.

      1. No, I’m not. There is an objective “fair market value” of the attorney’s time and I have no problem with them being paid it.

        Now above and beyond the fact that attorneys love to calculate the value of other people’s time (and their earning potential), there are public attorneys (i.e DAs, etc) and public defenders. As you mention, they do work for a living — and their hourly rates are a matter of public record.

        So what’s wrong with limiting the plaintiff’s attorney to whatever hours he/she/it can justify, at the rate of the DAs?

        After all, aren’t DAs entitled to earn a living???

  9. “the thought of being required to proceed publicly in this action” – Nobody’s requiring CD to do anything. He’s the one who wants this all to go forward.

  10. If the seal of anonymity is broken, will the mystery plaintiff turn out to be…Spacey himself?

    1. /just asking questions

  11. I’m betting that some of the justification for the $40M damage claim is how it’s affected the plaintiff’s life over the intervening decades.

    It would be completely unfair to Spacey to prevent people who hear/read C.D.’s testimony and know C.D. didn’t appear to be affected as he claimed or knew that C.D. was a serial liar who was fired from multiple jobs for making false claims of sexual assault to approach Spacey or his lawyer to reveal this information. But, if the general public is not allowed to know C.D.’s identity, the random people who would have this information would have no idea they should come forward.

    If an adult chooses to file a civil suit, their identity should be public except, perhaps in extremely rare cases. For example, where it would clearly put a third party (such as the plaintiff’s family) in grave danger of serious injury or death and the hard evidence is very convincing that the defendant did what the plaintiff claimed and that the effect on the plaintiff is what they are claiming so the value to the defendant of people coming forward to provide conflicting evidence is slim. This is not one of those cases as it’s probably almost entirely a “he said/he said” case.

  12. I invite people to visit places they have not seen in 40 years. Memory may be quite different from reality in the absence of a recording. I invite people to list what they did 40 days ago with referring to a recording.

    The judge is in denial of the reality of memory in the absence of a recording.

    1. WTF are you talking about??? The problems of this case have nothing to do with memory. In fact, the anonymous accuser’s memory worked so well, he had the accusations published by New York Magazine.

  13. So the defendant should remain anonymous because… he wants to? How is that a consideration?

  14. I am adding a course in brain function to a course in critical thinking to the required pre-law subjects. These are to immunize the law student against the weaknesses of the Rules of Evidence, to understand behavior, including the technical aspects of punishment. For better policy understanding of the devastation caused by the lawyer profession, take Economics 101.

    1. You don’t like the Rules of Evidence when it doesn’t work in your favor.

      When it does work for you, you applaud the strength of the court system.

      Get out of here.

  15. Prof. Volokh regularly follows, and blogs about, significant or interesting privacy cases, and probably would have written this post regardless.

    But the fact that Kevin Spacey is, allegedly, not just a child molester but also a celebrity means that his victims’ attempts to seek redress in our presumptively open court-system carries with it a privacy price that other victims don’t generally have to pay.

    If we imagine this case going through all of its pretrial proceedings to a jury trial, I guarantee you that Mr. Kevin Spacey Fowler’s lawyers will want considerable liberty to examine the prospective jurors during the voir dire jury selection process to find out about the biases and impressions they may have brought with them to the courthouse that day, because of his celebrity, which made him very rich and very famous — and, for many years, effectively bulletproof.

    Like it or not, to sue Kevin Spacey Fowler for something like sexual assault, his alleged victims must themselves become celebrity plaintiffs. Some people would view that as a feature, but most victims actually view that as a bug. The Streisand Effect can bite everybody in the room, and not always fairly.

    Were I the trial judge hearing this particular plaintiff’s application, then, I would be inclined to discount Kevin Spacey Fowler’s lawyers’ arguments. I’d say they’re equitably estopped from making them, given their client’s unclean hands, broadly considered.

    1. Have you read the legal briefs? Do you know anything about federal court rules? The question of pseudonymity is not based on how famous the plaintiff or defendant is. Its based on facts & the court’s impartiality. Whatever you think of Spacey, understand that he has paid a price for just being accused as a sexual predator. Because he’s accused does not prevent him from possessing the same due process rights as his accuser(s) just because he’s a celebrity.

      I’m going to be frank here. If “C.D.” had just kept his mouth shut and simply sued, the court should allow his anonymity to continue. But his case is weak, so he needed to recruit other people to testify to support his claim. He disclosed who he was in order to do this. That’s how his story appeared in Vulture & that’s how Anthony Rapp became a co-plaintiff. At that moment, his legal anonymity died. You can’ t be anonymous to the court and not be anonymous when you publicly try to stack the deck against the defendant. Sorry, it doesn’t work that way. C.D. can’t have his cake and eat it too. Also, it doesn’t help that C.D. has cancelled two arranged depositions and now wants to depose himself directly to the judge. It seems as if C.D. doesn’t want to be cross examined. Honestly, it sounds to me that C.D. (and Rapp) thought that Spacey would just settle, but he’s fighting this case. Its time for C.D. to put his money where his mouth is or quit and go home.

      The entire point of discovery is to uncover the facts and unearth any “unclean hands”. But those dirty details should not be assumed solely on the part of the defendant. Any holes, inconsistencies and misinformation on the part of the plaintiffs must also be brought to light. The MeToo movement has got to understand that the court system is not going to give them an advantage out of sympathy.

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