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She Who Seeks Pseudonymity Must Provide Pseudonymity

Or, to be precise, her lawyers must do so.

|The Volokh Conspiracy |


From today's decision by Judge Elizabeth Dillon (W.D. Va.) in Doe v. Virginia Polytechnic Inst.:

Jane Doe was enrolled as an undergraduate student at Virginia Tech, where she met another student, Jill Roe. Doe and Roe began a dating relationship. Over the next few weeks, Doe and Roe went on multiple dates and spent a substantial amount of time together. In September 2020, after a night out, Roe asked Doe to spend the night at her apartment where the two engaged in sexual activity.

The next day, Roe accused Doe of taking advantage of her. Roe then filed a complaint with the Virginia Tech Office of Equity and Accessibility, alleging that Doe sexually assaulted her at an off-campus apartment after a night out drinking. An investigator with the university, Kristin Barnett, investigated Roe's complaint.

During the investigation, Barnett opened a second case against Doe involving a claim by Doe's freshman roommate, Joy Smith. Smith alleged that, during the prior year, she and Doe had a sexual relationship and Doe engaged in nonconsensual sexual activity with Smith. Smith became acquainted with Roe, and she filed her complaint against Doe shortly after Roe filed her own complaint against Doe….

On January 20, 2021, Doe received a letter from McCrery and Sloan stating that they found Doe responsible for violating Virginia Tech's policies on rape and sexual battery, and not responsible for assault or stalking. In addition, Doe was dismissed from the university…. Doe filed suit against Virginia Tech [and Virginia Tech officials] alleging that they violated: (1) the Due Process Clause of the Fourteenth Amendment; and (2) Title IX. Specifically, Doe argues that Virginia Tech should have adjudicated Roe and Smith's allegations separately and should have applied the Title IX procedures to the adjudication. In addition, Doe claims that "Virginia Tech's decision to render the harshest available sanction against Ms. Doe—expulsion—is significantly harsher than comparably similar student conduct cases involving male students accused of sexual assault involving heterosexual activity at Virginia Tech, who were on average suspended, but not expelled.["]

The question then turned to whether Doe could proceed pseudonymously, and the court said no:

Recently, in Doe v. Virginia Polytechnic Inst. & State Univ., the undersigned held that a student may proceed under a pseudonym where he sued Virginia Tech for violations of his due process rights related to the university's investigation of allegations of dating-related violence against him. Id. The court reasoned that the litigation was "'a matter of sensitive and highly personal nature' because [the plaintiff was] an accused perpetrator of domestic violence."

"Like sexual misconduct, allegations of domestic violence or abusive dating relationships involve sensitive and highly personal facts that can invite harassment and ridicule." [See] Doe v. The Rector & Visitors of George Mason Univ. (E.D. Va. 2016) ("There can be no doubt that the litigation here focuses on a matter of sensitive and highly personal nature. Plaintiff has been accused of sexual misconduct, the mere accusation of which, if disclosed, can invite harassment and ridicule.")…. In addition, the court noted that "Doe's identification may put him at risk for physical or mental harm by persons who know that he has been found responsible for domestic violence" and anonymity would not prejudice Virginia Tech because the university already knew Doe's identity.

Here, and unlike the case discussed above, … plaintiff … is not seeking to preserve her own privacy in any legitimate way. Instead, she seeks privacy while naming two non-parties—one is named approximately 91 times and the other approximately 36 times—who assert that they are plaintiff's victims. Moreover, plaintiff imbedded photographs of herself and one of the non-parties in the complaint.

As this court has stated previously, "… the trial court must 'carefully review all the circumstances of [the] case and then decide whether the customary practice of disclosing the plaintiff's identity should yield to the plaintiff's privacy concerns.'" Given the fact that plaintiff decided to name others repeatedly and include photographs of herself and another, the court cannot, and does not, find that her motion to proceed under a pseudonym is genuinely for the purpose of preserving her privacy or avoiding retaliatory harm….

The court went on to grant Virginia Tech's motion to (in effect) redact the accusers' names from the Complaint and other papers:

The third parties are named in a highly sensitive and personal matter; they did not voluntarily disclose their identities by including photographs of themselves in any pleading; there is a risk of harm to them as non-parties by being known as persons who asserted that they were victims of sexual violence; they have an interest in not having their sexual orientations publicized without their consent; they were college students at the time; and defendants are not prejudiced as they know the identities of the third parties. Accordingly, the court will grant the third-party motion to seal.

See also Doe v. Kidd, 19 Misc. 3d 782, 789 (N.Y. Sup. Ct. 2008) (denying pseudonymity to a plaintiff alleging sexual assault, partly on the grounds that "in response to news reporters' queries, plaintiff's representatives reasserted the allegations in the complaint, and openly identified and criticized the defendant, thereby sensationalizing this case even more").

Conversely, some (but far from all) courts that have considered such matters when alleged sexual assault victims sue the alleged assaulters, some courts have concluded that the fair solution is to allow both parties to be pseudonymous: "[I]f the plaintiff is allowed to proceed anonymously, … 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." Doe v. Doe, No. 20-CV-5329(KAM)(CLP), 2020 WL 6900002, *3 (E.D.N.Y. Nov. 24, 2020); see also Doe v. Am. Fed. of Gov't Employees, No. 1:20-cv-01558-JDB, at 6 n.2 (D.D.C. June 19, 2020); Doe v. City of New York, 201 F.R.D. 100, 102 (S.D.N.Y. 2001); Doe v. Doe, No. CV146015861S, 2014 WL 4056717 (Conn. Super. Ct. Ansonia-Milford Dist.); Doe v. Anonymous #1, No. 520605/‌‌2020E (N.Y. Sup. Ct. Kings Cty. Feb. 24, 2021); Doe v. Moravian College, No. 5:20-cv-00377-JMG, at 2 n.2 (E.D. Pa. Jan. 11, 2021); Doe v. Smith, 105 F. Supp. 2d 40, 44 (E.D.N.Y. 1999); Doe v. Tenzin Masselli, No. MMXCV145008325, 2014 WL 6462077, *2 (Conn. Super. Ct. Oct. 15, 2014) (leaving open the door to Doe v. Roe lawsuits in some such cases); Bike v. Sollene, No. CV126027065S, 2012 WL 5476887, *2 (Conn. Super. Ct. Oct. 15, 2012) (discussing some Connecticut cases where pseudonymity was allowed to such defendants). I'm not saying this to endorse categorical mutual pseudonymity in such cases, but to note the tendency  in some cases to favor treating the parties equally with regard to pseudonymity—and, as we see in this case, to bristle at plaintiffs who seek pseudonymity for them but not for their adversaries.

Thanks to Prof. KC Johnson for the pointer.