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Plaintiffs from Conservative Religious Groups Have More Right to Proceed Pseudonymously in Sex Assault Lawsuits

Four courts have recently said yes, in cases brought by conservative Muslims and Christians.


I blogged about one such case last year, but now I've found more, so I thought I'd raise the question again; here's a section from my draft article on The Law of Pseudonymous Litigation—I'd love to hear people's thoughts on it.

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In four cases, courts have allowed parties to remain pseudonymous in part because sexual matters involved in the cases would be particularly stigmatized within the parties' religious communities. Most prominently, a recent Eleventh Circuit case so held as to a Muslim woman who alleged that she had been raped:

"[C]ourts have often denied the protection of anonymity where plaintiffs allege sexual assault, even when revealing the plaintiff's identity may cause her to suffer some personal embarrassment[.]" … [But] Ms. Doe does not just allege that the sexual assault allegations in this case might result in "personal embarrassment." Instead, she asserts that because she is from a "devout Muslim family," the "very nature of her allegations would be sufficient to bring harm to [herself] and shame to her family under the cultural/religious traditions that her family practices."

She supported this claim with her declaration, in which she attests that she seeks to proceed under a pseudonym in part because she "come[s] from a strict Muslim household where under [their] cultural beliefs and traditions such a sexual assault would have the tendency to bring shame and humiliation upon [her] family." The district court erred by treating Ms. Doe's motion as merely alleging personal embarrassment, without accounting for what she actually alleged or considering our social stigma cases.[1]

Later cases took the same view as to another Muslim plaintiff and a Baptist plaintiff, both of whom were alleging sexual assault,[2] as did an earlier case where plaintiff was an erotic dancer who sought pseudonymity in part because "her parents are devoutly religious members of a Christian church."[3]

This seems to me to an improper form of preference for the religious, given that many nonreligious people might also feel highly upset by revelation of similar information—whether about having been sexually assaulted or choosing to be erotic dancers.[4] And while in principle courts could diminish this preference for religion by adopting their reasoning to non-religiously-defined cultural groups as well as religious ones,[5] that too strikes me as improper preference: Again, many people even in the mainstream culture view revelation of such matters as highly embarrassing or even humiliating.[6]

Moreover, any such decisions would require judges to evaluate the religious or cultural norms of various groups. A judge, for instance, would have to compare the likely "shame and humiliation" that a Trinidadian Muslim woman (the self-described identity of the plaintiff in Neverson) might feel from being identified as a victim of sexual assault with the shame and humiliation that might be felt by, say, an Irish-American Catholic woman.

Likewise, a judge might have to compare the shame and humiliation that might be felt by a man who is claiming to have been the victim of a sexual assault by another man, and asserting that in his religious or cultural circle such victimization is seen as particularly unmanly and therefore shameful. I'm skeptical that the judicial process is likely to lead to reliable results in cases such as this.

[1] Doe v. Neverson, 820 F. App'x 984 (11th Cir. 2020).

[2] Doe v. Barr, No. 1:20-cv-03553, 2020 WL 12674163 (D.D.C. Dec. 4, 2020); Doe v. City of Dalton, No. 4:21-cv-00128-LMM, at 2–3 (N.D. Ga. July 12, 2021).

[3] Doe #1 v. Deja Vu Consulting Inc., No. 3:17-CV-00040, 2017 WL 3837730, *5 (M.D. Tenn. Sept. 1, 2017).

[4] Note that this can't be justified as a religious exemption under the Free Exercise Clause or Religious Freedom Restoration Act: Religious exemptions under those regimes are generally available only when a law "substantially burdens" people's religious practices, by forbidding them from engaging in religiously motivated behavior, e.g., Holt v. Hobbs, 574 U.S. 352, 360–61 (2015), or compelling them to engage in behavior that "violates their religious beliefs," e.g., Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 720 (2014). Here, having to litigate in one's own name wouldn't violate anyone's religious beliefs—it would just reveal information that would cause condemnation from coreligionists.

[5] Consider Wolfchild v. United States, 62 Fed. Cl. 521 (2004), rev'd on other grounds, 559 F.3d 1228 (Fed. Cir. 2009), which allowed certain Sioux plaintiffs to proceed pseudonymously, because of a concern that their position in a particular lawsuit would produce retaliation among other tribe members.

[6] Compare Doe v. Dordoni, No. 1:16-CV-00074-JHM, 2016 WL 4522672, *3 (W.D. Ky. Aug. 29, 2016), which allowed pseudonymity based on a reasonable fear of physical harm (see supra Part II.B), which in that case was the fear of violent reprisal in Saudi Arabia based on a Saudi citizen's conversion from Islam to Christianity. In that case, the court was applying a general rule—risk of physical harm can justify pseudonymity—that applied to people without regard to their religion or culture.