The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"Huntsville School District: Seal Sex-Abuse Case"
From the Arkansas Democrat Gazette, about a school district's motion seeking to seal the proceedings in Nelle v. Huntsville School Dist. (W.D. Ark.), where "plaintiff is alleging that members of a boys basketball team were sexually abused":
"The unfortunate reality is that the only way to protect all of these children from the consequences of decisions adults make is to seal these proceedings in their entirety," according to the motion. "No live testimony and no record of this case -- be it a pleading, motion, brief, court order or otherwise, should be open to the public without a prior order of this Court." …
In her suit, Nelle said the district knew that students on the boys middle school basketball team were being sexually harassed and assaulted by older boys and did little or nothing to stop it….
In the motion to seal, the school district argues that Nelle's complaint includes information that could be used to identify every child involved.
"B.N.'s exact identity is known or knowable with surgical precision by a person with reasonable intelligence reading the Plaintiff's Complaint," according to the motion. "Likewise, the Plaintiff uses similar methodology to identify six alleged child perpetrators by initials and then goes on to say that as many as 17 members of the boys' basketball team may have been victimized." …
According to Nelle's suit, freshman players on the team would "engage in forcible sexual assault against multiple boys' middle school players by having one or more students holding an eighth-grade team member down while one or more middle school basketball players would engage in what was called 'baptism' and 'bean dipping' …"
"Baptism," according to the lawsuit, "refers to the placing of one's genitals on the face and/or in the mouth of another student. 'Bean-dipping,' as the term is used in this complaint, refers to placing a student's rectum and anus on the face and particularly the nose of another student."
I appreciate the concern for the accused students, and perhaps there is room to require refiling with more pseudonymization (for instance, replacing initials with less specific pseudonyms). And of course quasi-criminal proceedings against juveniles are generally held in secret, to protect the accused.
Still, there are limits even there: If, for instance, a stepfather is being prosecuted for molesting a stepdaughter, we don't keep that adult trial secret even when the girl's identity can be easily determined from the trial. The dangers of secret justice—the lack of the opportunity for public supervision of the process, which can lead both to unsound results and to public lack of confidence in the results—are too great to allow such secrecy in the normal criminal justice process. And likewise in the civil justice process: I can't see how court proceedings against a school district, alleging extremely serious legal violations, can take place entirely in secret, even to protect the students who are indirectly accused. Cf. In re N.B. (N.H. 2016) (striking down order requiring civil suit, related to alleged sexual abuse of children by adults, to be filed under seal to "protect[] the identities of the children and others involved in the case"); Doe v. Methacton School Dist. (E.D. Pa. 1995) (reversing decision to seal case, in part because "the case does involve public entities, and other parents have an interest in learning how their school districts address the issue of sexual molestation by teachers and whether the threat of abuse is taken seriously enough").
Thanks to Prof. Robert Steinbuch for the pointer.
