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Sexual Assault Claims and Pseudonymity

An interesting 2014 case I just found.


Many cases allow people who allege they had been sexually assaulted to be pseudonymous,[1] including when they are defendants being sued for libel and related torts.[2] Indeed, some allow pseudonymity for the alleged attacker as well as the alleged victim, if the two had been spouses or lovers in the past, because identifying one would also identify the other, at least to people who had known the couple.[3] But again, many other cases hold otherwise, some in highly prominent cases (for instance, against Kevin Spacey, Harvey Weinstein, and Tupac Shakur[4]) but others in much less prominent ones.[5] Here's a rather unusual fact pattern I came across, where a court rejects pseudonymity, Doe v. JBF RAK KKLC (D. Nev. 2014):

The complaint alleges that Plaintiff and the principal individual Defendant entered into a personal relationship by telephone, text messages and email in November 2012 which continued in that manner until late January 2013 when they met in person in Las Vegas for the first time. Plaintiff alleges that during a meeting on January 25, 2013, Defendant became intoxicated and conducted himself in an inappropriate manner. Plaintiff does not allege that Defendant committed any physical or sexual assault against her during that encounter.

Defendant thereafter provided Plaintiff with expensive gifts, including expensive jewelry, watches and handbags. He also allegedly promised to purchase luxury automobiles for the Plaintiff. During a subsequent meeting with Plaintiff in Switzerland in March 2013, the Defendant again became intoxicated, was verbally abusive to the Plaintiff and demanded and obtained the return of expensive items he had given her. Defendant thereafter apologized for his conduct and gave additional expensive gifts to Plaintiff. Plaintiff alleges that during a private airplane trip with Defendant in April 2013, he again became intoxicated and behaved in an inappropriate manner. Plaintiff does not allege that Defendant was verbally or physically abusive to her during this trip.

Plaintiff alleges that on or about July 11, 2013 while she was in India with the Defendant, he physically attacked her and caused bruising and injury to her. Plaintiff alleges that she subsequently engaged in communications with Defendant's relatives and associates who advised her that Defendant was attempting to control his behavior and asked her to give him another chance. Plaintiff alleges that on August 2, 2013, Defendant again became intoxicated, physically forced Plaintiff to leave their joint hotel room and stated that he wanted "20 men to rape" her.

After further communications with Defendant and receiving additional gifts from him, Plaintiff alleges that she traveled to Dubai to meet with Defendant in September 2013. During this visit, she signed a contract of employment with Defendant. Defendant, however, again engaged in excessive alcohol consumption and Plaintiff was forced to leave. This incident was also followed by further apologies from the Defendant, promises to correct his behavior and additional expensive gifts or promises of expensive gifts.

Plaintiff alleges that she traveled to Dubai in November 2013 to meet with Defendant. Plaintiff alleges that while riding in the backseat of a Bentley automobile with Defendant in Dubai, he strangled and choked her. The pattern of apologies, gifts and promises to reform was again repeated. Plaintiff returned to Dubai in late January 2014.

Plaintiff alleges that on January 30, 2014, Defendant entered her separate bedroom without warning and physically attacked and attempted to sexually assault her. Plaintiff alleges that as a result of Defendant's conduct, she suffered physical pain and mental anguish, including a diagnosis of P.T.S.D. (post-traumatic stress disorder). Plaintiff seeks to recover damages for her allegedly physical and mental injuries. She also seeks to recover the gifts or value of the gifts that Defendant either promised her or which he forced her to return.

The parties' positions on Plaintiff's motions to proceed anonymously and to unseal the complaint [more on that below -EV] are mirror opposites. Plaintiff wants to unseal the complaint in its entirety on the grounds that the public is entitled know the full nature and extent of her allegations against Defendants. She desires to proceed anonymously, however, to avoid the humiliation and trauma that she will allegedly suffer if her true identity is publicly disclosed.

Defendants argue that Plaintiff should be required to litigate under her true name. They argue that it is unfair and prejudicial that they are publicly subjected to infamy while Plaintiff is protected from such consequences by the cloak of anonymity. Defendants also request that the previously sealed allegations of the complaint remain under seal. Defendants argue that it is uncertain whether this case will ever be adjudicated on the merits, and it is therefore still premature to unseal the complaint in its entirety….

This case does not involve an alleged fear of retaliation if Plaintiff's identity is publicly disclosed. Plaintiff's identity is known to the Defendants. There is no evidence that Defendants have attempted to retaliate against her because of this lawsuit, but even if they did, "the retaliation would not be prevented by allowing Plaintiff to proceed anonymously at this point." …

In general, federal courts balance the severity of emotional distress or mental injury the plaintiff appears likely to suffer against the unfairness or prejudice that defendant will suffer if plaintiff is allowed to proceed anonymously, and the public's interest in knowing the identities of all litigants…. [Some cases have given] greater weight to the potential harm that the plaintiffs would suffer if their identities were disclosed, and the deterrent effect that this would have on other potential plaintiffs, than to the unfairness or prejudice that allowing anonymity causes to the defendants. The contrary view is set forth in [other cases] ….

Both lines of cases make legitimate arguments for and against granting of anonymity to plaintiffs in sexual assault or abuse cases. The stronger the showing that plaintiff makes regarding the psychological injury she will suffer if her identity is publicly disclosed, the more likely it is that the motion to proceed anonymously will be granted.

The allegations in this case are somewhat unusual even in the context of cases involving allegations of sexual assault or sexual abuse. The complaint alleges that Defendant engaged in dissolute and personally degrading behavior that, at least initially, was not directed at harming the Plaintiff. Despite Defendant's alleged behavior, Plaintiff made several long distance trips to foreign countries to be with him. She continued to make such trips even after Defendant allegedly physically attacked and verbally abused her. Plaintiff's willingness to continue to associate with Defendant appears to have been based, in part, on the gifts that he made or promised to make to her.

Plaintiff not only seeks to recover damages for the physical and mental injuries she allegedly suffered as a result of Defendant's abusive conduct, she also seeks to establish her legal right to the expensive watches, earrings, rings and luxury automobiles that Defendant either gave or promised to give her. These allegations and claims call Plaintiff's credibility into question in a manner not generally found in other cases involving sexual assault or abuse.

Although Plaintiff alleges that she suffered mental anguish, including a diagnosis of P.T.S.D. that will require treatment in the future, she has not submitted a declaration describing her physical or mental injuries in any detail. Nor has she submitted any treatment records or declarations by any physicians, psychiatrists or psychologists that support an assertion that she will suffer substantial additional mental injury if her identity is publicly disclosed. While the Court can infer some such injury, Plaintiff has not demonstrated that it will be particularly severe in her case. Defendants also point out that Plaintiff disclosed her real name in filing a motion for temporary restraining order against Defendant in the Illinois state court which was based on the same allegations alleged in this case.

The Court finds that Plaintiff has not made a strong showing that she will suffer substantial emotional harm if she is required to prosecute this case in her true name. Plaintiff's claim to recover the expensive gifts allegedly given to her by Plaintiff also distinguishes this case from those in which courts have protected the identities of sexual assault plaintiffs so that others similarly situated will not be deterred from filing suit.

Under these circumstances, the unfairness and prejudice caused to Defendants, as well as the public's interest in knowing who is using the courts to seek justice for an alleged wrong, outweigh the Plaintiff's interest against public disclosure of her identity. The Court therefore denies Plaintiff's motion to proceed anonymously in this action and directs her to file an amended complaint in her true name….

The Court also rejected the defendants' motion to seal the complaint:

[T]he Court [had earlier] partially granted Defendants' motion to seal the complaint subject to reconsideration by the Court. At the time the order was entered, Plaintiff had not yet served the complaint on Defendants and it appeared possible that the complaint might never be served. The Court stated that the complaint would remain sealed until "this action proceeds further in the litigation process," at which time "the balance will shift in favor of full public access to the factual details of the complaint." The complaint has since been served, or arguably served, on the Defendants….

This Court held in its July 18, 2014 order that a motion to seal all or part of a civil complaint must satisfy the compelling reasons standard to overcome the strong presumption in favor of public access …. Because the complaint in this case contained fairly detailed allegations of the principal Defendant's alleged dissolute, degrading or abusive behavior, and because the complaint had not been served on Defendants and might never be served on them, the Court partially granted Defendants' motion to seal.

The complaint has now been served or arguably served on Defendants, who have moved for its dismissal primarily on jurisdictional grounds. This action is now before this court for decision on contested issues relating to jurisdiction and whether the complaint alleges a claim upon which relief can be granted. Just as the public has a right to know the Plaintiff's identity, it also has the right to know what allegations are being made in this action in evaluating the outcome of any judicial action that may take place, including the possibility that the action may be dismissed for lack of personal or subject matter jurisdiction.

Defendants argue that the complaint should remain partially sealed because it contains allegations that are highly embarrassing and damaging to the reputation of the Defendants. The courts have determined, however, that the "mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records."

Defendants have also not demonstrated that the allegations in the complaint have been made for an "improper purpose" that would justify the continued sealing of the complaint. Any complaint that contains allegations of egregious misconduct by a defendant could be considered to have been filed for an improper purpose if the allegations are, in fact, false. A defendant, however, is not entitled to have a complaint sealed merely by asserting its falsity. If this were the standard, virtually any complaint that contains allegations that are embarrassing or damaging to the defendant's reputation could be sealed until the allegations are proven. That, of course, does not comply with the legal standard for sealing judicial records.

The complaint in this case involves alleged conduct, some of which occurred solely between the Plaintiff and the Defendant, and other conduct which was allegedly witnessed by others and which can potentially be established by witness testimony or through records such as the exhibits attached to the complaint. No determination can be made from the face of the complaint, that it is based on nothing more than unsubstantiated rumors, gossip or innuendo….

[1] Doe v. Lund's Fisheries, Inc., No. CV 20-11306 (NLH/‌‌JS), 2020 WL 6749972, *3 (D.N.J. Nov. 17, 2020); Doe v. Evans, 202 F.R.D. 173, 176 (E.D. Pa. 2001); Doe v. Kenyon College, No. 20-cv-4972-MHW-CMV, at 3 (S.D. Ohio Sept. 24, 2020); Doe v. Blue Cross & Blue Shield United of Wisc., 112 F.3d 869, 872 (7th Cir. 1997); Doe v. Eckerson, 5:20-cv-06135-GAF (W.D. Mo. Oct. 8, 2020); Doe v. Trishul Consultancy, LLC, No. CV1816468FLWZNQ, 2019 WL 4750078, *4 (D.N.J. Sept. 30, 2019); Doe v. Streck, 522 F. Supp. 3d 332, 334 (S.D. Ohio 2021); Nationwide Affinity Ins. Co. of Am. v. Brown, No. 2:20-cv-02355-EFM-TJJ, at 2 (D. Kan. Aug. 28, 2020); E.V. v. Robinson, No. 1:16-CV-01419, 2016 WL 11584907, *2 (D.D.C. July 8, 2016); Doe v. Cabrera, 307 F.R.D. 1, 3–4, 6 (D.D.C. 2014) (permitting plaintiff alleging rape to use a pseudonym); Doe v. De Amigos, LLC, No. 11-1755, 2012 WL 13047579, at *2–3 (D.D.C. Apr. 30, 2012); Doe v. OPO Hotel Mgmt., No. 2020 CA 003630 B (D.C. Super. Ct. Oct. 7, 2020); Doe v. Diocese Corp., No. CV93 0704552S, 1994 WL 174693 (Conn. Super. Ct. Apr. 21, 1994).

For cases specifically involving allegations of sexual trafficking, see, e.g., B.M. v. Wyndham Hotels & Resorts, Inc., No. 20-cv-00656-BLF, 2020 WL 4368214, at *10 (N.D. Cal. July 30, 2020); Doe v. Penzato, No. CV10- 5154 MEJ, 2011 WL 1833007, at *3 (N.D. Cal. May 13, 2011); Doe v. Steele, No. 3:20-cv-01818-MMA-MSB, at 5 (S.D. Cal. Nov. 16, 2020). For cases involving allegations of child pornography, see Doe v. Streeter, No. 4:20-cv-11609-MFL-APP (E.D. Mich. Nov. 12, 2020); Doe v. Fowler, 2018 WL 3428150 (W.D.N.C. July 16, 2018).

[2] See, e.g., Adgers v. Doe, No. CV05-4014657, 2005 WL 3693816 (Conn. Super. Ct. Hartford Dist. Dec. 22, 2005); See, e.g., A.B. v. C.D., No. 217CV5840DRHAYS, 2018 WL 1935999 (E.D.N.Y. Apr. 24, 2018); Painter v. Doe, No. 3:15-CV-369-MOC-DCK, 2016 WL 3766466 (W.D.N.C. July 13, 2016).

[3] Doe v. Kenyon College, No. 2:20-CV-4972, 2020 WL 11885928 (S.D. Ohio Sept. 24, 2020); Doe v. Trustees of Dartmouth Coll., No. 18-CV-040-LM, 2018 WL 2048385, *6 (D.N.H. May 2, 2018); cf. Doe v. Billington, No. 21STCV22207 (Cal. Super. Ct. Sept. 2, 2021).

[4] Rapp v. Fowler, No. 20-CV-9586 (LAK), 2021 WL 1738349 (S.D.N.Y. May 3, 2021);Doe v. Weinstein, 484 F. Supp. 3d 90, 94 (S.D.N.Y. 2020); Doe v. Shakur, 164 F.R.D. 359 (S.D.N.Y. 1996).

[5] Plaintiff B v. Francis, 631 F.3d 1310 (11th Cir. 2011) ("courts have often denied the protection of anonymity in cases where plaintiffs allege sexual assault, even when revealing the plaintiff's identity may cause her to 'suffer some personal embarrassment'"); Doe v. Ocean Reef Cmty. Ass'n, No. 19-10138-CIV, 2019 WL 5102450, *2 (S.D. Fla. Oct. 11, 2019); o F.B. v. East Stroudsburg Univ., No. 3:09-cv-525, 2009 WL 2003363, at *3 (M.D. Pa. July 7, 2009) (reasoning that if courts were to find allegations of sexual assault alone sufficient to support anonymity it "would open up the court to requests for anonymity each time a plaintiff makes allegations of sexual harassment"); Doe v. Cook County, No. 1:20-cv-05832 (N.D. Ill. June 3, 2021) (requiring "risk of serious social stigmatization surpassing a general fear of embarrassment"); Doe v. County of Lehigh, No. 5:20-CV-03089, 2020 WL 7319544 (E.D. Pa. Dec. 11, 2020); Doe v. Gong Xi Fa Cai, Inc., No. 19-cv-; 2678, 2019 WL 3034793, at *1 (S.D.N.Y. July 10, 2019); Doe v. Townes, No. 19-cv-; 8034, 2020 WL 2395159, at *3 (S.D.N.Y. May 12, 2020); Doe v. Skyline Automobiles Inc., 375 F. Supp. 3d 401, 405 (S.D.N.Y. 2019); Doe v. Word of Life Fellowship, Inc., 2011 WL 2968912 (D. Mass. July 18, 2011); MacInnis v. Cigna Grp. Ins.; Co. of Am., 379 F. Supp.2d 89 (D. Mass. 2005); Bell Atlantic Business Systems, Inc., 162 F.R.D. at 421; Doe H. v. Haskell Indian Nations Univ., 266 F. Supp. 3d 1277, 1289 (D. Kan. 2017); Roe v. Does 1-11, No. 20-CV-3788-MKB-SJB, 2020 WL 6152174, *8 (E.D.N.Y. Oct. 14, 2020) ("general trend to disfavor anonymity in sexual assault-related civil cases"); Doe v. Sheely, 781 F. App'x 972, 973–74 (11th Cir. 2019); Doe ex rel. Doe v. Harris, No. 14-cv-00802, 2014 WL 4207599, at *2 (W.D. La. Aug. 25, 2014); Luckett v. Beaudet, 21 F. Supp. 2d 1029 (D. Minn. 1998); Doe v. Univ. of R.I., No. CIV.A. 93-0560B, 1993 WL 667341 (D.R.I. Dec. 28, 1993); Doe v. Bruner, No. CA2011-07-013, 2012 WL 626202, *3 (Ohio Ct. App. Feb. 27, 2012) (applying federal law by analogy); Balerna v. Bosco, No. HHDCV176082264S, 2017 WL 6884041, *2 (Conn. Super. Ct. Dec. 6, 2017) (rejecting pseudonymity in non-Title-IX case arising out of alleged sexual assault at college).