District Court in Title IX Sexual Assault Case Rejects One-Sided Pseudonymity

"Plaintiff has sought to avail herself of the protections of anonymity (without prior Court order), all the while single-handedly precluding the Named Defendant from the ability to avail himself of similar protections."

From Doe v. Liberty Univ., Inc., decided Friday by Judge Norman Moon (W.D. Va.):

Plaintiff has sued Liberty University and another student at Liberty, alleging that student raped her and, when Plaintiff reported it to the Title IX office, Liberty was deliberately indifferent to her sexual assault claim and later retaliated against her. She also sued the other student for assault and battery.

This decision concerns Plaintiff's request to proceed anonymously as "Jane Doe," at the same time she has repeatedly, publicly identified the accused student-defendant—whom she alleges is a "rapist." Thus, on account of Plaintiff's drafting of her complaint, the student-defendant cannot be afforded privacy in defending against this suit.

While Title IX and sexual assault cases often proceed with anonymous litigants, typically both the alleged accuser and alleged accused are afforded those privacy protections. The Court finds, upon consideration of the relevant factors, that Plaintiff has not established her request for anonymity that would only apply as to her while the student defendant would be publicly named. The Court will deny Plaintiff's ability to proceed under a pseudonym but will afford her the opportunity to amend her complaint to include her name….

At the outset, the Court must emphasize the rare posture that this Court is confronted with a substantial motion challenging party anonymity and seeking dismissal for a Rule 10(a) violation. That is even rarer, given that this is a Title IX case alleging rape. However, this was an entirely preventable issue, solely of Plaintiff's own making.

This Court and others in the Fourth Circuit frequently have afforded litigant anonymity in Title IX claims concerning sexual assault or rape. In this case, as in other such cases, claims of sexual assault concern "matter[s] of [a] sensitive and highly personal nature." Had Plaintiff filed a complaint in which she identified herself as Jane Doe and Named Defendant as "John Doe"—i.e., providing anonymity both for herself and the accused—the Court would have granted the request for relief with little hesitation. Indeed, … privacy interests of both accused and accuser in a sexual assault case support a determination that both sides be allowed to proceed anonymously. Furthermore, affording anonymity to an accused perpetrator of sexual misconduct can also have the effect of supporting the anonymity of the alleged victim.

Plaintiff's litigation posture and framing of her complaint establish that Plaintiff has sought to avail herself of the protections of anonymity (without prior Court order), all the while single-handedly precluding the Named Defendant from the ability to avail himself of similar protections. She named him as a Defendant in the caption of the case; identified the Named Defendant nearly 60 times in the complaint; and called the Named Defendant a "rapist" right in the introduction of the complaint. Equity does not support parties' strategic use of litigant anonymity as both sword and shield….

Because "the mere filing of a civil action against … private parties may cause damage to their good names and reputation," courts have held that "[b]asic fairness" generally dictates that plaintiffs who publicly sue defendants in civil suits "must [sue] under their real names." S. Methodist Univ. Ass'n of Women Law Students v. Wynne & Jaffe (5th Cir. 1979).

That concern is not merely academic here. The Named Defendant submitted a declaration under oath in which he attested that he was fired when his former employer learned he was named as the defendant in this case, and that such publicity has further diminished his job prospects. But the fact that the Named Defendant (and Liberty) have knowledge of Plaintiff's identity and are therefore able to prepare a defense on that basis does not mean there is no unfairness. It only means that the Named Defendant is not as prejudiced in defending this case as he otherwise might have been. See Doe v. Court of Common Pleas of Butler County, Pennsylvania (W.D. Pa. 2017) (explaining that, "[i]f Plaintiff were permitted to proceed anonymously, Defendants would be placed at a serious disadvantage, for they would be required to defend themselves publicly while plaintiff could make her accusations behind a cloak of anonymity") (cleaned up)….

{That is not to say that adverse repercussions cannot follow from one's bad conduct as found in litigation or a criminal proceeding and must be shielded from public scrutiny. That is especially true were this case to proceed to trial or final judgment.} …

The Court further notes … that the ages of the litigants may provide some additional support for anonymity for both parties, and that even though they are not minors, they were college-age students at the time of the alleged rape. Finally, the Court has taken into account Plaintiff's arguments concerning whether there is a risk of retaliatory physical or mental harm, on account of her identification …. Concerns about stigma in cases such as this are not lightly brushed aside, especially given the substantial authority recognizing privacy interests. Nor does the Court seek to minimize difficulties Plaintiff may face on account of her identity in this case being made public, given its sensitive subject matter. However, the Court also notes that any such concerns are lessened on account of Plaintiff's allegation she intends to graduate from Liberty this year, so reducing her profile and the opportunity for retaliation which Plaintiff alleges she'll face.

At bottom, the Court concludes that Plaintiff has violated Fed. R. Civ. P. 10(a) by filing the complaint without including her name. Moreover, … the Court … [rejects] Plaintiff's request for unilateral anonymity, where she has already identified Named Defendant….

Accordingly, the Court, … permit[s] Plaintiff fourteen (14) days whether to file an amended complaint, which identifies Plaintiff, or to file a notice of voluntary dismissal as against Named Defendant.

Such insistence on mutuality as to pseudonymity—whether mutual pseudonymity or mutual lack of pseudonymity—isn't the norm, but it's also not that rare. For other examples of decisions such as the one quoted above, see Doe v. Garland, No. 1:22-cv-00722, at 5-6 (D.D.C. Mar. 10, 2022) (plaintiff who claimed to have been falsely accused of sexual assault was barred from suing pseudonymously, because he named the accuser); Doe v. Va. Polytech. Inst. & State Univ. (W.D. Va. 2022) (likewise); Ayala v. Butler Univ., No. 1:16-cv-1266, at 6 (S.D. Ind. Jan. 8, 2018) (likewise). More broadly, other courts have indeed cited fairness as a basis for rejecting pseudonymity for either party. A.B.C. v. XYZ Corp., 282 N.J. Super. 494, 501 (App. Div. 1995) (noting that the state high court had concluded that "a sexual harassment plaintiff" would not be pseudonymized, so "there is no reason in logic or law that a perpetrator [of sexual misconduct, such as exhibitionism,] should be protected, when a victim is not").

For cases that allow pseudonymity so long as it's mutual, see Doe v. Doe, No. 20-cv-5329, 2020 WL 6900002, at *4 (E.D.N.Y. Nov. 24, 2020) ("[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."); see also Roe v. Doe, No. 18-cv-666, 2019 WL 1778053, at *3 (D.D.C. Apr. 23, 2019); Doe v. Smith, No. 119-cv1121, 2019 WL 6337305, at *2-3, *3 n.1 (N.D.N.Y. Nov. 27, 2019); Doe v. Ind. Univ., No. 1:19-cv-02204 (S.D. Ind. Oct. 2, 2019) (where the judge who decided Ayala nonetheless allowed plaintiff to proceed pseudonymously, distinguishing Ayala in part on the grounds that "the plaintiff's complaint here respects the privacy interests of others in ways the complaint in Ayala had not"); Doe v. City of New York, 201 F.R.D. 100, 102 (S.D.N.Y. 2001) ("If we are to have a policy of protecting the names of individual litigants from public disclosure, there is a very substantial interest in doing so on a basis of equality."); B.R. v. F.C.S.B., No. 1:19-cv-00917RDATCB, 2020 WL 12435689, at *24 (E.D. Va. Mar. 10, 2020) ("[T]his Court will do what Plaintiff's counsel should have done at the outset of this litigation, and order that, from this point forward, in this litigation, each party will be referred to by the initials set forth on page one of this Order. The Court recognizes the seriousness of the alleged offenses and the wide-ranging ramifications that these accusations may hold for each of the named parties. The Court finds it necessary to not only protect the privacy interests of the accuser, but also the accused."), aff'd as to other matters, 17 F.4th 485 (4th Cir. 2021); Doe v. Am. Fed. of Gov't Emp., No. 1:20-cv-01558, at 6 n.2 (D.D.C. June 19, 2020); Doe v. Anonymous #1, No. 520605/‌‌2020E (N.Y. Sup. Ct. Kings Cty. Feb. 24, 2021); Affidavit in Support of Defendants' Motion to Dismiss the Complaint, id. (Dec. 21, 2020); Doe v. Moravian College, No. 5:20-cv-00377, at 2 (E.D. Pa. Jan. 11, 2021); Doe v. Smith, 105 F. Supp. 2d 40, 43-44 (E.D.N.Y. 1999); Doe v. Immaculate Conception Church Corp., No. CV09-501-1968, 2009 WL 4845449, at *1 (Conn. Super. Ct. Sept. 22, 2009); Doe v. Doe, No. CV146015861S, 2014 WL 4056717, at *2 (Conn. Super. Ct. Ansonia-Milford Dist. July 9, 2014); Doe v. Weill Cornell Medical College of Cornell Univ., No. 1:16-cv-03531, at *1 (S.D.N.Y. May 12, 2016) (so providing "as a temporary measure," but the order was apparently never modified during the six months while the case was being litigated between filing and settlement); Doe v. Tenzin Masselli, No. MMXCV145008325, 2014 WL 6462077, at *2 (Conn. Super. Ct. Oct. 15, 2014) (endorsing such mutual pseudonymity in principle, but rejecting it when the defendant had already pleaded no contest to a criminal charge arising out of the same facts).

Of course, such mutual pseudonymity, while providing more protection to the parties' privacy and reputations, also undermines public access still more. Imagine being a reporter who has to write about a Doe v. Roe lawsuit, with no ability to track down people who can offer the story behind the case (except to the extent that the lawyers are willing to provide access to those people)—you could still see the allegations, the parties' arguments, and the court's decisions, but without any ability to independently investigate the facts. And of course, if that is accepted as the norm in, say, sexual assault lawsuits (or libel lawsuits over allegations of sexual assault), whole areas of the law could become difficult for the media and the public to monitor, outside the constrained accounts of the facts offered up by judges and lawyers. This may be a reason why such mutual pseudonymity remains comparatively rare. See, e.g., Doe v. Doe, 189 A.D.3d 406, 406-07 (N.Y. App. Div. 2020) (allowing pseudonymity for such a plaintiff but rejecting it for the defendant); Doe v. Diocese Corp., 43 Conn. Supp. 152, 163-64 (1994) ("In the instance where a plaintiff presents a credible case for anonymity based on neither economic harm nor on hope of gain but, rather, on concerns for substantial privacy interests, the court should not consider whether it might give the same relief to the defendant. To do so unfairly treats the privacy claim and allows the introduction of considerations having no relevance to the merits of the plaintiff's particular claim, which should stand or fall on its own."); Doe v. Purdue Univ., No. 4:18-cv-89, 2019 WL 1757899, at *6 (N.D. Ind. Apr. 18, 2019) (likewise).

For more on pseudonymity generally, see The Law of Pseudonymous Litigation. Congratulations to John Ernest Falcone and Luke Joseph Malloy, III (Petty, Livingston, Dawson & Richards), who represent the individual defendant and who prevailed on this motion.