Rape Victim Asks Court to Retroactively Redact Name from 16-Year-Old Opinion

Court redacts the name from the court-hosted official record, but refuses to order private sites to remove it.

From Graber v. Bobby, decided Thursday by Judge J. Philip Calabrese (N.D. Ohio):

In 2001, an Ohio jury convicted John Graber of committing rape and gross sexual imposition against two minor victims, for which he was sentenced to a total of twenty years imprisonment. Graber pursued numerous appeals to the Ohio Court of Appeals and the Ohio Supreme Court, each of which affirmed his convictions and sentences. In 2004, Graber filed a petition for a writ of habeas corpus in federal court pursuant to On February 9, 2006, the Court denied Graber's petition. In its opinion, the Court referred to the minor victims by name.

Recently, over sixteen years after the publication of that opinion, one of the minor victims learned that her full name, another minor victim's name, and details of the criminal offenses were publicly available. That minor victim, interested party Jane Doe, now seeks an order, in Graber's habeas proceeding, which last saw activity in 2007, (1) to redact the February 9, 2006 opinion, (2) to require the immediate removal of the opinion from any publicly available website that currently publishes it, and (3) to provide notice to any print publisher of the Federal Supplement that the redacted opinion should be used in future reprints. She contends that the published opinion has resulted in emotional harm and was erroneously maintained in the public file, given the protections intended by 18 U.S.C. § 3509….

"The courts have long recognized … 'a strong presumption in favor of openness' to court records." Overcoming this burden is "a heavy one: 'Only the most compelling reasons can justify non-disclosure of judicial records.'" The greater the public interest, the greater the burden to justify sealing….

Relevant here, 18 U.S.C. § 3509(d)(2) mandates that "[a]ll papers to be filed in court that disclose the name of or any other information concerning a child shall be filed under seal." A related statutory provision permits a court to "issue an order protecting a child from public disclosure of the name of or any other information concerning the child in the course of the proceedings, if the court determines that there is a significant possibility that such disclosure would be detrimental to the child." Pursuant to the statute, as in effect in 2006, in the Court's view, there is no doubt that the February 9, 2006 opinion should have shielded the identities of the minor victims to protect their privacy. Based on the representations in Jane Doe's motion, which the Court has no reason to doubt, the unredacted opinion has caused and will continue to cause psychological and emotional trauma to one of the named minor victims.

Given the nature of the criminal offenses, the merits of redacting the February 9, 2006 opinion outweigh the public's interest, if any, in continuing to keep public on the court record the minor victims' identities…. "The court finds the great public interest in encouraging individuals to report suspected child abuse or neglect greatly outweighs any interest any party to this action has in identifying the name of the individual who reported the abuse/neglect." …. "Child abuse reports should be protected to the extent practicable from public dissemination so members of the public feel safe in making those reports." ….

Though the Court recognizes that the minor victims' identities have already been publicly revealed, it sees no reason to keep their identities public on the court record when it has the power simply to redact the names from the prior opinion, as should have happened in the first instance. In addition to the redaction of the names, Jane Doe seeks redaction of "other identifiers," "the intimate details of the criminal offenses," and certain other "private" or "personal" details contained in the February 9, 2006 opinion. However, she has not identified that information with specificity, so the Court cannot identify it or meaningfully consider that request. In any event, the opinion contains little if any sensitive or identifying information that the Court believes warrants redaction, particularly given the ruling's longstanding public availability and naming of the minor victims….

[T]he Court GRANTS Jane Doe's motion as it relates to redacting the minor victims' names from the February 9, 2006 opinion. By separate entry, the Court enters a redacted version of its February 9, 2006 opinion. The redacted opinion hereby supersedes the prior opinion and serves as the public record in the case….

To the extent that Jane Doe seeks an order requiring the removal of the February 9, 2006 opinion from publicly available websites and the print version of the Federal Supplement, the First Amendment bars the Court from awarding such relief. [Note that, to my knowledge, the February 9 opinion didn't actually appear in the printed F. Supp. volumes, and the motion was just discussing any possible future publications; but the opinion is present on at least one Google-accessible website, and on some pay services. -EV]

The use of the injunctive powers of federal courts to suppress any publication is highly disfavored and requires an exceedingly persuasive justification. The Supreme Court has held statutes prohibiting the publication of the names of rape victims to be unconstitutional when those names are then publicly available. In this case, a court order prohibiting the publication of an already public opinion would violate the First Amendment.

With print copies in circulation and the ubiquitous availability of the Federal Supplement online, the Court is without the ability to order a complete claw back of the opinion. Without that ability and recognizing that copies will continue to circulate, the Court cannot conclude that there is adequate justification for enjoining further publication of February 9, 2006 opinion, either online or in any reprints of the Federal Supplement.

However, the Court notes that many digital services track the release of federal court orders such that the redacted opinion might displace the earlier version in popular databases and search engines. The Court certainly hopes for such a result. Accordingly, the Court DENIES Jane Doe's motion as it relates to requiring the removal of the February 9, 2006 opinion from publication and enjoining its future publication….

 

Comments

[DaivdBehar]

Again, the lawyer is a dumbass. This is a crime victim. She did nothing wrong. If someone harasses her about her victimization, why not sue them? Why not get damages from the people causing them? If she is triggered or made anxious by the mention of her victimization, that is PTSD, a disorder. Why not get that treated? The treatment is exposure. So the mentions are a part of therapy. Exposure is a biiological and brain based treatment, as the brain stops responding after repeated stimulation by the triggering event. The court should not be compliant with this mental disorder, or any other mental disorder, like with false beliefs about body integrity. The law is filled with false beliefs and the suborning of false beliefs. That is a factor in making the lawyer profession suck so much.

[Ken Arromdee]

>If someone harasses her about her victimization, why not sue them?

Because having your name up there can affect your life in lots of indirect ways that are impossible to prove. If a prospective employer googles her name and thinks "I'd better not hire her because a rape victim is probably more likely to file sexual harassment suits", he's not going to *say* that that's why she didn't get the job; he'll just make up an excuse.

Sometimes ti's even legal. If someone finds her name and says "rape victim, so she probably has issues, I don't want to date her" she'll be harmed by having her name in the media, but you can't sue someone for not going out with you (and he'll probably not give the reason either anyway).

[DaivdBehar]

You are saying, cannot sue for shunning. I agree. However, would you want to date someone who has no sympathy for your past experiences? Would there be an equal number of people who would think, courageous, sent a predator to prison, helped many other people not get victimized, I like that? Or, she has suffered, she will understand our clients who are also victims? Could be an employment recommendation.

[Illocust]

Seems a reasonable call. The court records for this case and is soaks should be consistent in who is anonymous, and the court has no business telling third parties to redact names.

[Rossami]

Unless the minors were abused at the age of 2 or less, the "continuing harm to a minor" seems incorrect.

Yes, the court made a mistake at the time. Yes, it's appropriate to correct that mistake where practical. But assuming the victims are not currently minors, I don't see where they have standing to complain about something only discovered now when victims who are abused as adults do not get the same presumptions of protection.

[Voize of Reazon]

Victims who are abused as children continue to be protected after they reach adulthood. Isn't that a more appropriate comparison?

[Rossami]

Let's go back to first principles, though. Do they continue to be protected because their present harm is somehow different? Or do they continue to be protected merely because unsealing their files upon adulthood is administratively expensive? I would argue that it's the latter.

Consider two scenarios. In A, a 16 year old is sexually abused. In B, a 22 year old is identically abused. While the cases are being litigated, the minor's identity must be protected in A because the minor cannot fully defend him/herself. Absent extenuating circumstances, the adult in B is expected to deal with the publicity. Ten years later, the two cases are again publicized. Yes, that can re-trigger some of the original trauma. But how is the harm to the now-26 year old in A different from the harm to the now-32 year old in B?

[Rossami]

To clarify, I am arguing that the rule for sealing should be based on a continuing need. Then when the justification for sealing passes, the documents should become eligible for automatic unsealing.

That rule is not practical while the sealing and unsealing decisions are manual and decisionally-intensive - but maybe those don't always need to be the case.

[Voize of Reazon]

I would argue that it's the latter.

So you say, but you provide an assertion instead of an argument. In the absence of data I am equally prepared to believe that abuse suffered by a child at a time when they are fully dependent on the protection of adults is far more damaging, even years later, than a similar victimization of an adult. Do you have any support for your theory?

[Trollificus]

Did I mis-read, or did the article state the decision, in the case records of an Ohio circuit court, had not been accessed since 2007?

Huh. "...now seeks an order, in Graber's habeas proceeding, which last saw activity in 2007, (1) to redact ..."

Okay, that might mean "legal" activity, as opposed to "access". Still seems mighty obscure, and maybe counterproductive to draw attention to the case now.

As when "disability advocates" for the alternatively cognitive tried to cancel a snowboarder for going to a costume party as the character "Simple Jack" from a movie within a (then) 6-year-old movie, as reported by a couple of celebrity magazines. If someone is travelling that circuitous a route to be offended, they're either not actually very retarded, or are "disability advocates" for pay. NOT mentioning the guys' costume would cause...lemme do the math...ZERO damage to any impaired person or the "cause" of advocating for them.

Someday, there may be a great movie made about this era, in which a zealous "advocate" dredges up some obscure-to-invisibility offense and by so doing ruins the "victims" life, and the perpetrators', while benefitting only the "advocate".

Forget it, Jake. It's 2022.

[Eugene Volokh]

I think "activity" refers to filings, not to access of the opinion by the public.