No Sealing or Pseudonymity for Sexual Assault Defendant

"[I]f the purported falsity of the complaint's allegations were sufficient to seal an entire case, then the law would recognize a presumption to seal instead of a presumption of openness."

Chalmers on behalf of J.C. v. Martin, decided yesterday by Magistrate Judge Reid Neureiter (D. Colo), involved a lawsuit alleging sexual abuse by the plaintiff child's maternal grandfather. (A criminal investigation had been "closed without any charges.") Defendant sought to seal the case, or at least to proceed under a pseudonym, because,

Notwithstanding his denials, Defendant asserts that merely being associated with such allegations in public court documents will do irreparable harm to his reputation and standing in the community….. Defendant claims it would be 'fundamentally unfair' to expose him to 'speculation and uninformed judgments within the court of public opinion" before he has the opportunity to challenge the veracity of the allegations.

No, said the court:

"We begin with the fundamental presupposition that it is the responsibility of judges to avoid secrecy, in camera hearings and the concealment of the judicial process from public view. Courts are public institutions which exist for the public to serve the public interest. Even a superficial recognition of our judicial history compels one to recognize that secret court proceedings are anathema to a free society." "[L]awsuits are public events and the public has a legitimate interest in knowing the facts involved in them."

There is a strong presumption that documents essential to the judicial process are to be available to the public…. The presumption against restriction may be overcome if the party seeking to restrict access to records "articulate[s] a real and substantial interest that justifies depriving the public of access to the records that inform [the court's] decision-making process." …

In this case, Defendant has not made a sufficient showing to justify either restriction of the entire case or that he only be identified via initials. The suggestion that he is suffering clear injury merely by being named as a defendant in a lawsuit alleging sexual assault is not enough. A lawsuit is a means of seeking public judicial relief for a claimed injury. The public has an interest in the allegations of a lawsuit, the nature of the claims being made, and the parties involved…. "The public has a fundamental interest in understanding the disputes presented to and decided by the courts, so as to assure that they are run fairly and that judges act honestly."

At the same time, the public should know that a complaint filed in court is nothing more than a claim—an allegation—and nothing has yet been proved. Defendant in this case denies the allegation. People who learn of this case may make assumptions about what has happened, but as of now, the allegations are only allegations. The supposed harm from being the target of a lawsuit alleging sexual abuse is not enough to justify shrouding this case with a veil of secrecy. As Magistrate Judge Bennett of the District of Utah held in denying a Defendant's motion to completely seal a lawsuit because the plaintiff there was a vexatious litigant who supposedly was making false and damaging claims:

In nearly all civil and criminal litigation filed in the United States Courts, one party asserts that the allegations leveled against it by another party are patently false, and the result of the litigation may quickly prove that. However, if the purported falsity of the complaint's allegations were sufficient to seal an entire case, then the law would recognize a presumption to seal instead of a presumption of openness.

Miller v. Fluent Home, LLC (D. Utah 2020).

It may appear to be unfair that the supposed victim of the alleged assault is identified only by his initials while Defendant's full name is available for the public to see. But the victim is a minor, and the Federal Rule of Civil Procedure 5.2 (a)(3) specifically provides that for lawsuits involving minors, only the minor's initials, and not full name, are to be used in court filings. There is no similar rule protecting the identity of someone being accused of sexual assault.

There is one final reason why this case should not be restricted or the name of Defendant hidden by use of initials. There is an existing public police report of the episode underlying the allegations of this case created by the Greeley Police Department. That document is available to the public through a public records search. Restricting this case to conceal material that is already publicly available serves no legitimate purpose and runs counter to the general principle that court proceedings and filings should be open to the public….

This represents the overwhelming majority view in courts that have considered such matters; in both civil and criminal sexual assault cases, defendants are generally named. But there are some exceptions; see, e.g., here. For more on the law of pseudonymous litigation, check out this draft article that lays out the whole mess.

Comments

[Henry Cowell]

There is an asymmetry in these types of cases (leaving aside the rule for minors in FRCP 5), which is that the court accepts as true the plaintiff's allegations, but not the defendant's denial.

By allowing a sex abuse plaintiff to proceed as a Doe, the court impliedly takes the allegations to be true. (If the allegations were false, there would not be a basis for proceeding pseudonymously.)

While the district court suggests that "if the purported falsity of the complaint's allegations were sufficient to seal an entire case, then the law would recognize a presumption to seal instead of a presumption of openness," in practice there IS a presumption to seal (as needed to shield the plaintiff's identity) in cases based on alleged sexual abuse of a minor.

If the defendant defeats the claim, then maybe the pseudonymity of the plaintiff can be eliminated. But this is not much of a remedy to someone falsely accused of sexual abuse.

The benefits of pseudonymity for legitimate victims of sexual abuse, unfortunately, also inure to the benefit of plaintiffs who falsely allege sexual abuse. For the latter, the court system provides a mechanism to commit anonymous libel, shielded in most cases by the litigation privilege. Because of the American rule and the extreme difficulty with proving a negative (to support a malicious prosecution claim), even a defendant who wins the case is unlikely to have any real remedy for the reputational and financial harms incurred. These issues run a lot deeper than the allowance or denial of pseudonymity to litigants.

By the way, I think Part II of your article should be "Rebutting the Presumption Against Pseudonymity" not "Rebutting the Presumption of Pseudonymity"

[Eugene Volokh]

Thanks -- fixed the Part II heading.

[DaivdBehar]

Why does the scumbag lawyer say, "Believe the accuser?" Then proceeds to privilege the accuser. To generate case and fees in rent seeking, for garbage proceedings.

In this case, the presumption should be of innocence of the defendant, cleared by the police, and the lying of a vicious plaintiff. Expose the plaintiff, not the defendant.

Of course, the stinking, toxic, dumbass lawyers on the bench decide the reverse of logic.

[KenveeB]

The plaintiff's pseudonymity isn't because he's presumed to be telling the truth, but because he's a minor.

[gormadoc]

"At the same time, the public should know that a complaint filed in court is nothing more than a claim—an allegation—and nothing has yet been proved."
There are lots of things "the public" should know but doesn't. "The public" should know that being a victim of a sexual crime shouldn't be shameful, which would have the added benefit of needing far fewer pseudonyms, but we don't take that into account.

[Cal Cetín]

Wait, don't sex abuse *plaintiffs* seek anonymity? Could someone explain the process here?

[starlord1988]

"Courts are public institutions which exist for the public to serve the public interest"

I don't think it is in the public's interest for persons who are not convicted of a crime to be judged by the public as having committed that crime. It is doubly not in the public interest for a person whose charges were closed with no conviction to be stuck with the label of a sex offender. Even not being found guilty, much of the public will still judge the person as guilty.

In this case, the justice system is not actually providing justice.

[Dilan Esper]

You should favor closed trials and sealed indictments then.

Look, it sucks when an innocent person is falsely accused. But the court system has to operate in public, for reasons that are bigger than a single person's privacy.

I'd favor greater remedies on the back end- i.e., I think the government should have had to pay Richard Jewell $30 million, and it should have partially come out of the salaries and/or pensions of every person in law enforcement who leaked false information about him to the press. And we should get rid of sovereign immunity and qualified immunity and find ways to do that.

But you can't make the judicial system private.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I've sometimes wondered what would happen if trials, and everything leading up to them, were conducted privately -- no spectators, no news, no perp walks, no press releases -- by either side -- until the verdict was issued, when everything would be published. My first thought is how much fairer it would seem to everyone -- plaintiffs, defendants, witnesses -- and my remaining thoughts are everything that could go wrong.

* Once the verdict is in, the urge to remain sealed would be especially open to abuse without the urgency of getting the trial underway. I simply don't trust the government to hinder itself, especially prosecutors, but including judges to an extent. It's easy to imagine witnesses and lawyers adjusting their actions in support of post-trial motions to remain sealed. Oh the trauma! I didn't realize my parents would find out about this! The horror, the humanity!
* The lack of pre-trial publicity would make it harder for people to realize they had been witnesses or knew anything about the case.
* One of the purposes of open trials is for spectators, including reporters, to observe the trial in progress. Once the trial is over, transcripts are a lousy way of observing demeanor and competence, whether of lawyers, judges, jurors, or witnesses.

The idea is akin to socialism. Sure sounds good to children, but a little thought shows it as a sure path to corruption.

[Cal Cetín]

I think that your ideas are the direction we should be going. /not sarc

I'm sure the ruling circles in this country will be on it. /sarc

[benji]

Just another example of Eugene Volokh being paid by Big Tech to undermine the law probably. Why I hear he's opposed to any crimes being prosecuted at all!

[Holden C]

That's right, I'm glad you noticed this. Eugene Volokh's articles and arguments, if you strip them to its core, is basically trying to destroy all types of regulations and law that would make the Internet a bit safer and prevent crimes like cyberstalking, cyberharassment from destroying victims' lives while preserving Free Speech. It's a balancing act. Free Speech is important, but so is individual privacy and protection from malicious behavior.

Eugene Volokh's view is, apparently, that most online harms like doxing, harassment, stalking are perfectly simply because they involve "speech." He uses the First Amendment has a liability shield to absolve almost the entire spectrum of human conduct (including the vile, abhorrent, and malicious) from not just criminal liability, but also civil liability. He leaves victims of these crimes with no laws to defend themselves from purposely malicious individuals who aim to take advantage of these legal loopholes to destroy lives, and he probably makes a good amount of money from taking back-end bribes from Big Tech.

If you notice, several of his papers support "Free Speech" and lack of "search engine liability" are funded by Google. The guy is taking money from Big Tech to fight against the laws that would hold Big Tech accountable for their intentionally condoning harmful behavior online. Eugene Volokh's analysis is inaccurate, harmful to society, and he treats victims of online crimes are collateral damage.

[Michael P]

He was trolling you, and you bit. Think on that for a while.

[Holden C]

Show me a single time that Eugene Volokh has ever considered the following:

1. The impact to lives of cyberharassment or cyberstalking victims who have had their privacy invaded, lives damaged, careers destroyed, by MALICIOUS individuals who are out to destroy their lives. Often, victims did nothing wrong or bad to these malicious individuals other than LEAVING them, and the malicious individuals, many with mental illness, behavioral disorders, etc... create hostile, malicious, disgusting websites about the victims in order to use SEO and Google to destroy their future dating, career, employment prospects if people do a search for the victim's names on "Google." Show me a single time where Eugene Volokh actually took these real-life cases (there are many) into consideration in his analysis. The internet is an entirely new medium of communication, where any psycho can write about anyone else regardless of truthfulness, intention, etc..., and this information about the victims shows up immediately on a Google search. This means a stalker or a vengeful individual can ALWAYS stalk a victim regardless of how much the victim tries to distance himself or herself from these malicious individuals. Eugene Volokh, not surprisingly, does not ever talk about the unique nature of the internet, the fact that it is not practically possible for victims to ever get away from stalkers, in any of this analysis. He thinks the musings and posts of malicious mentally ill psychos are precious free speech that is "valuable" in the marketplace of ideas. Never mind that people's lives are being destroyed by these posts, never mind that people are driven to suicide by these posts, never mind that these malicious posts rarely ever have first amendment value and are just spiteful people trying to harass or ruin people's lives.

2. Eugene's analysis that these malicious actions are just protected speech is wrong, especially in the age of the internet. Most of the time, cyberharassment or stalking is a COURSE OF ACTION towards particular individuals that simply involve speech (they cannot involve anything else but speech if taking place online), but they are malicious, intentional, and courses of action intended to harm individuals. Eugene Volokh notably ignores this critical distinction and tries his best to make almost every type of bad behavior online, including doxing, shaming, maliciously posting about people to ruin their lives using SEO, etc... legal and to knock down laws that would help victims get recourse against the malicious individuals who are hiding behind anonymous usernames perpetuating these types of harms.

It is very likely (from what I've seen and heard) that Eugene Volokh gets money behind the scenes from Big Tech like Google, to peddle this expansionist and dangerous "Free Speech Absolutism" view of the internet, in order to knock down laws that would protect victims of online harassment, but burden Big Tech with increased costs for compliance.

Society is not stupid. Cyberharassment and online stalking are real crimes with real world impact to victims. That's why governments like the EU, Hong Kong, New Zealand, Australia, UK, China, Canada are all passing legislation specifically fighting all types of online harms, such as doxing, privacy violations, etc.... The world is not stupid. There is something weird and fishy going on in America, as there is a side (including Eugene Volokh and Big Tech) that seems to purposely want to de-criminalize all types of online criminal behavior. If you harass people, if you stalk people, whether online or offline, that SHOULD be criminal. It's not that hard to understand. The First Amendment did not foresee the global nature of the Internet so failing to adapt to modern communications developments suggests a stubbornness, lack of understanding, and irresponsibility on the part of Volokh and his First Amendment Absolutist supporters.