Free Speech

Defendant in Civil Sexual Assault Case Allowed to Proceed Pseudonymously


The court reasoned:

Even if the defendant has not provided medical documentation of the potential mental harm he would suffer if he were named, the court finds that the chance that he would suffer reputational harm is significant. The defendant is a partner of a well-known law firm in New York and an adjunct law school instructor.

But wouldn't nearly all people who are accused of sexual assault risk "reputational harm" and even "mental harm," even if they aren't law firm partners and law school teachers? Indeed, wouldn't that be true of people who are accused of other serious misconduct, such as embezzlement, fraud, and the like?

Here's the heart of the analysis—a minority view, I think, though one I've seen in various forms in some other cases—from Doe v. Doe, decided late last year by Judge Kiyo Matsumoto (E.D.N.Y.):

The plaintiff … alleg[es] that the defendant committed multiple torts against her, including sexual assault and battery….

"[W]hen determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff's interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant." …

The plaintiff has made sensitive and personal disclosures in her complaint, including that she availed herself of a website through which young women meet older men who are potential "sugar dadd[ies]," and that she contracted sexually-transmitted diseases as a result of the defendant's alleged tortious conduct. The plaintiff has also provided a letter from a therapist whose "clinical opinion" is that the plaintiff "would be mentally and emotionally impacted if … her information is made public in this case," which weighs in favor of her anonymity …. The defendant acknowledges that he is aware of the plaintiff's identity, so even if the plaintiff's name is not disclosed in court filings, the defendant is not being anonymously accused by an unknown plaintiff….

The court finds that for many, if not more, of the same reasons that the plaintiff may proceed anonymously, the defendant should be able to do so as well….

Though the court agrees that the defendant has not offered any evidence beyond his own sworn statement that he would suffer mental harm if he were identified, that is only one factor under Sealed Plaintiff, and the harm to "innocent non-parties" is also considered under that factor. The defendant's former spouse and minor child are innocent third parties who would be vulnerable to mental harm if his name is disclosed.

Moreover, … [the fact that] the litigation involves matters that are highly sensitive and personal, weighs in favor of allowing the defendant to also proceed anonymously. The defendant is accused of meeting the plaintiff through a website that caters to potential "sugar dadd[ies]," then paying the plaintiff approximately $6,500 "for companionship and sex," transmitting two sexually-transmitted diseases to the plaintiff, and sexually assaulting her.

Even if the defendant has not provided medical documentation of the potential mental harm he would suffer if he were named, the court finds that the chance that he would suffer reputational harm is significant. The defendant is a partner of a well-known law firm in New York and an adjunct law school instructor. He is not alleged to have committed the tortious acts against a client, thus breaching his professional obligations and ethical canons, a circumstance which would present a stronger argument against allowing him to proceed anonymously. Rather, the allegations relate solely to his personal conduct.

Courts have recognized the obvious reputational harm to a defendant who is accused of downloading pornography. Similarly, the allegations that the defendant used a website to find a sexual relationship and companionship, and transmitted sexually-transmitted diseases, carry with them the clear potential for reputational harm, regardless of whether the defendant committed the sexual assault and battery he is accused of….

If the defendant were named, he would likely feel significant pressure to settle this case regardless of the merits of the plaintiff's allegations….

At this stage in the proceedings, if the plaintiff is allowed to proceed anonymously, as both parties agree she should be able to do, it would serve the interests of justice for the defendant to be able to do so as well, so that the parties are on equal footing as they litigate their respective claims and defenses. See Doe v. City of New York (S.D.N.Y. 2001) ("If we are to have a policy of protecting the names of individual litigants from public disclosure, there is a very substantial interest in doing so on a basis of equality.")….

As discussed above, the names of both the plaintiff and the defendant should be protected from disclosure, and that protection should extend to the parties' personal identifiable information, their addresses, the names of their employers, and the names of their family members. Beyond protecting the parties' identities and the identities of their families, however, the rest of the docket should remain public. There is a strong presumption of public access to judicial documents "based on the need for federal courts … to have a measure of accountability and for the public to have confidence in the administration of justice," and this "court must balance competing considerations against" that very strong presumption….

If you're interested in the substantive dispute, see the Complaint and the Answer.

NEXT: The Bureaucrat in Chief

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  1. Is there a public health interest since the defendant is a bug spreader?

    1. Dating sites should add Yelp reviews of dates.

    2. David,
      The defendant is accused of being a bug spreader by someone who accepted him as her "sugar daddy".
      That the plaintiff was given anonymity seems to be key to the reasoning. One big question is whether hers was really in the public interest. But if the accuser is given anonymity in this sort of thing, it would seem a bit unfair if the accused was not.

      1. Good points. Both parties are reprehensible, one is a prostitute, the other is worse, a lawyer. My bigger point which is being ignored by Volokh, is that publication causes no factual harm, save hurt feelings, worth nothing. Even prostitutes have feelings, and there is probably a lot of conflict between those two. The court should stay out of relationships.

        These reputational torts should be shifted away from the publishers to the real causes of the harms, those who have acted on the plaintiff, the employer, the wife, the club, the church that expelled the person. If the law firm or the law school fire the defendant, sue them.

        1. "Both parties are reprehensible, one is a prostitute, the other is worse, a lawyer."

          Neither is an Internet crank, so there's at least some positive.

          1. How do you know without knowing their names?

            1. Internet cranks don't use their real names when they're cranking, so how would knowing their names help?

    3. "Is there a public health interest since the defendant is a bug spreader?"

      Defendant is a Republican? Are you sure?

  2. Seems valid to me and something that should happen more often. Being found not guilty didn't matter as far as reputational damage goes. The accusation is enough to have long lasting consequences.

    1. If you have a strong-enough reputation, the accusation won't stick.

  3. It is difficult if not impossible to not reach the conclusion that this is a special case whereby the legal profession as embodied by the judiciary is not closing ranks to protect a member of the legal profession who is likely a well known and prominent member of a well known law firm.

    One seriously doubts if the same consideration and deference would be granted to a general member of the public and that the court is just using the fact that the plaintiff is proceeding anonymously is just an excuse to allow the defendent to have protection.

    Both plaintiff and defedant should be required to have their identity disclosed. Yes, it may be harmful and possibly destructive to their reputations, but that is the way our legal system works. Don't like it, then don't indulge in behavior that could give rise to litigation.

    1. "this is a special case whereby the legal profession as embodied by the judiciary is not closing ranks to protect a member of the legal profession who is likely a well known and prominent member of a well known law firm."

      OR, is it a case that a member of the general public wouldn't know who or how to ask to be charged anonymously?
      Obviously, the decision to charge anonymously has to be made fairly early in the process, and most people aren't even talking to a lawyer about the charges until after they've been charged, much less making a case that they should be charged without being named.

  4. Everybody wants the plaintiff to be anonymous in these cases, but it has looked strange in cases where the plaintiff is anonymous but the defendant is not, since the defendant has a much stronger case for autonomy, until the claim is resolved.

    The defendant is accused of an especially heinous crime.

    And in the current environment, people are flooded with bogus claims from the media that there is a body of empirical evidence that such accusations are rarely false.

  5. Being accused of a crime can have very large impact on a person's future income prospects. Now, if being found not guilty established that a person was factually innocent of the charge would go a long way to justifying naming the accused. Being factually innocent is only one of several ways a person charged with a crime can end with a "not guilty" verdict. Because of this, a person charged with a crime may still incur many of the reputational harms even if the trial ends with a "not guilty". Since one of the ways a powerful man charged with a sex crime can end up with a "not guilty" verdict is by using power rather than actual innocence, a portion of the population likely assumes that any "not guilty" verdict in a case involving a powerful man is tainted by the possibility that the "not guilty" verdict was reached despite guilt, rather than because of innocence. The thing is, I bet the people who actually interact with this particular fellow already know what he is charged with, so declining to name him in court isn't protecting him much.

    1. This is a civil case...

      1. If you're sued in civil court for a tort that is also a crime, is that unlikely to have ramifications? Or are people likely to treat you like a sex criminal?

  6. If the plaintiff wants to be able to proceed anonymously, she should be required to agree to the defendant being able to be anonymous as well. If he's found liable, then his identity can be revealed if necessary. But a plaintiff should not be able to do an anonymous smear campaign against someone forced to reveal their own identity.

    1. Or the plaintiff could just skip going to court, and smear the defendant in public.

  7. Zero reason to id the defendant until judgment in plaintiff's favor. Not just here but in all such cases.

    Anyone can file a lawsuit, it is not proof he did anything wrong.

    1. If you think there's "zero reason" then you haven't thought it through in the slightest. Of course there's a reason: public accountability of the legal system. How could the public know if powerful defendants are being given special treatment if the very fact of that special treatment — judgment in their favor — allows them to remain anonymous?

      1. Bob's afraid of being outed via being named in court records. So there's no reason to believe anything anyone says about Bob, either in a court record or anywhere else.

  8. It strikes me that allowing either party to proceed anonymously does not preclude anyone from talking about it, and using the party's real names, on the internet. In this day and age I can't imagine being able to keep that kind of secret a secret for very long.

    1. Ask Bill Cosby how it works.

  9. Remember Morgan Mischaune Hammerskjold Wright? It turned out her allegations against a respected Minnesota law professor were phony and malevolent. Nonetheless, he got thrown into jail and was unable to attend his mother's funeral in Italy. It took a while before Morgan Wright's perjuries were exposed and the professor was set free and exonerated.

    But with a $1.2 million verdict against Morgan Wright, he had the last laugh.

    Read the article, and watch the video... and you'll understand why a male defendant in such a case will be more or less ruined whether he is exonerated or not. So I vote for anonymity for the male defendant where there are such alarming allegations.

    Morgan swore to police he committed sodomy rape against her and otherwise caused her broken teeth and a permanently damaged colon. Now he's permanently damaged her pocketbook for sure.

    1. "Remember Morgan Mischaune Hammerskjold Wright?"


        1. "Hope this helps:"

          Nope. Didn't help me care at all. I still don't.

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