Free Speech

Should Kuwaiti Student Challenging Title IX Sexual Misconduct Finding Be Pseudonymous,

in part because he is a citizen of Kuwait, “where ‘sexual activity outside of marriage goes against religious and cultural values’ and ‘sexual relations outside of marriage are illegal"?

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Yes, held Chief Judge Beryl Howell (D.D.C.) in Doe v. American Univ. in 2019. (I just came across the decision, which isn't on Westlaw, in my research for my Law of Pseudonymous Litigation article.)

Courts are split on whether accused students should be allowed to sue pseudonymously over Title IX sexual misconduct findings, and outside such Title IX lawsuits, litigants accused of sexual misconduct, whether they are criminal defendants, civil defendants, or civil libel plaintiffs, are usually named. But in this case, the court held in favor of pseudonymity, relying heavily (though not exclusively) on the defendant's being Kuwaiti:

While the plaintiffs case for proceeding under a pseudonym remains close, his residency [in] the foreign country and the defendant's consent for his use of a pseudonym support allowing him to proceed anonymously, subject to further consideration as the litigation proceeds.

As to the nonmoving defendant's interests, the defendant has consented to the plaintiffs motion. The plaintiffs identity, moreover, as well as the identities of Jane Roe and the other students associated with the sexual assault complaint against the plaintiff, are already known by the defendant in connection with its investigation. Allowing the plaintiff to proceed pseudonymously thus will not compromise the defendant's ability to defend this action and poses little "risk of unfairness to the opposing party." Finally, any public interest in disclosing the identity of the plaintiff is outweighed, at this stage, by the heightened risk of stigma and retaliation the plaintiff alleges that faces in his home country.

In sum, weighed against the minimal apparent interest in disclosure, the plaintiffs interest in maintaining his anonymity at this early stage in the litigation is sufficient to overcome any general presumption in favor of open proceedings. See Horowitz v. Peace Corps (D.C. Cir. 2005) ("If there is no public interest in the disclosure of certain information, 'something, even a modest privacy interest, outweighs nothing every time.'").

As I understand it, the court's concern wasn't that plaintiff was especially at risk for stigma just on the grounds that he was found to have sexually assaulted someone (since that would be heavily stigmatizing for typical U.S. citizens), but rather than he would face stigma even if his story was found to be correct, and any sexual contact was fully consensual. I also don't take the court to be saying that the plaintiff would be at risk for outright criminal punishment in Kuwait; I assume Kuwaiti law wouldn't reach Kuwaitis' conduct in foreign countries.

This fits with four recent cases, which I blogged about last month, where 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. (As with Title IX, cases are split on whether sexual assault plaintiffs should generally be allowed to proceed pseudonymously.) 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.

Later cases took the same view as to another Muslim plaintiff and a Baptist plaintiff, both of whom were alleging sexual assault, 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." And two other cases granted motions for pseudonymity in sexual misconduct case brought against rabbis, where the movants argued in part (to quote the motion in one case) that,

Plaintiffs have a reasonable fear of retaliation from [Rabbi] Freundel's supporters and the broader Orthodox community. The cultural norms of the Orthodox Jewish community forbid its members of speaking poorly of a rabbi—even when that rabbi has committed wrongful acts against the member.

According to The Washington Post and other news media, approximately 10 years ago, … Kesher Israel responded to persistent complaints, concerns, and criticism of [Freundel] from members of its congregation by issuing a statement, essentially a religious "gag" order to congregants "to cease to participate in any Lashon Hara, to stop listening to insinuations and attacks, and to disassociate [themselves] from [such slanderous and negative talk about Freundel], and finally to respond forcefully in opposition to Lashon Hara" against Freundel. {"Lashon Hara" is slanderous, negative talk, which is considered sinful in Judaism.}

What do people think about this consideration of the litigant's religious or social community in deciding whether the litigant should be allowed to be pseudonymous? (This is loosely, though only loosely, connected to the "cultural defense" debate about when a defendant's culture could be considered in deciding whether he's criminally culpable, or what sort of sentence should be imposed on him; see also this post.)