The Volokh Conspiracy
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Can #TheyLied Lawsuits, Alleging Defamatory Allegations of Sexual Assault, Be Litigated as Doe v. Doe?
That's the question raised by Doe v. Doe, just filed today; you can see the Complaint and the motion to proceed pseudonymously. Here, John Doe accuses Jane Doe (together with Sue Roe, who isn't included as a defendant) of falsely accusing him of sexual assault, and causing John to be expelled from Tulane University "less than one month before he was due to graduate."
My question: How is this defamation case different from any other defamation case brought over accusations of serious misconduct (especially when the defamation hadn't yet been made available to the general public)? Consider John Doe's argument in favor of pseudonymity:
[I.] Allegations of Sexual Assault Are a Highly Personal and Sensitive Matter
The underlying facts in this case relate mainly to allegations against the Plaintiff of sexual misconduct communicated to third parties, including classmates and Tulane's Title IX office, by two female students. Ultimately, John Doe was erroneously found responsible and expelled from Tulane. John Doe seeks to minimize the harm of Jane Doe's claims that he engaged in any sexual misconduct, and to prevent further harm. Requiring John Doe to proceed under his real name, or disclose the names of his accusers, would cause the precise harm that he seeks to avoid and presumably his accusers would also choose to avoid.
In light of the nature of this case, private and intimate details regarding the lives of John Doe and Jane Doe will be at issue. Moreover, the reason for bringing the lawsuit is to restore John Doe's good name. If John Doe is required to disclose his identity in this litigation, the harm would already be done. John Doe's name will forever be publicly associated with allegations of gender- based misconduct, specifically, sexual misconduct. For these reasons, courts have routinely found that in cases involving allegations of this nature, the parties should be allowed to proceed under pseudonym.
Since the interests at play here are of a highly sensitive nature, this factor weighs heavily in favor of anonymity. John Doe is seeking in this litigation to have his good name restored. If his name is public, then he can never be made whole because this sensitive and prejudicial information will be published in the public arena and the damage will have been done.
[II.] The Identification of John Doe Poses Potential Retaliatory Physical and Mental Harm
The second factor likewise weighs in John Doe's favor. If his identity is disclosed, John Doe could be targeted for retaliatory physical or mental harm based solely on the accusation of sexual misconduct.
Under the current social climate, there is no doubt that accusations of sexual misconduct are sufficient to tarnish a reputation. It does not matter that the accused has not been convicted of a crime. In this instance, Jane Doe spread false and highly damning claims of a sexual nature about John Doe to classmates, friends, and Tulane's administration, and even if this Court finds that Jane Doe conspired with Sue Roe to defame John Doe, that does not change the damage done if his request for anonymity is denied. Having to live with this public reputation would be detrimental to Doe's physical and mental health.
Moreover, it would be harmful to publicize the names of the female accusers as it would subject them to "unwanted scrutiny, harassment and ridicule." Therefore, this factor also weighs in favor of anonymity.
[III.] John Doe, Jane Doe, and Sue Roe Are All Young Adults
John Doe was in college at the time of the alleged misconduct. The female students were also college students at the time of the alleged misconduct. While they are young adults, some courts have stated that being over eighteen years old should not be held against a college student seeking anonymity. While this factor does not weigh towards providing anonymity, it does not weigh against it either.
[IV]. The Lawsuit Is Against Both Government and Private Parties
When a plaintiff challenges the government, courts are more likely to allow him or her to proceed under a pseudonym than in cases involving private parties, since actions against private individuals may harm their reputations…. (Courts are more likely to permit a plaintiff to proceed under a pseudonym in actions against the government because government entities typically do not involve injury to reputation[.]) … Here, the Defendant is a private person, but John Doe requests to maintain Defendant's anonymity as well for the reasons explained above.
The only information that the public needs regarding John Doe and Jane Doe is that they were all students at Tulane. There is no public interest in learning the identities of John Doe or Jane Doe through this litigation; it is sufficient that the underlying facts and legal claims are public. Therefore, this factor is neutral, at worst, and at best, favors proceeding under a pseudonym.
[I think the section heading here is factually wrong; there is no government defendant in the case. -EV]
[V.] There Is No Risk of Unfairness to Defendant
Allowing John Doe to proceed under a pseudonym will not inhibit the Defendant from defending herself against the allegations raised by John Doe in this suit. Jane Doe is well aware of John Doe's identity, as Jane Doe was party to the investigation process conducted by Tulane, during which his identity was disclosed. Therefore, permitting John Doe to remain anonymous will not result in any prejudice to Defendant. This factor also weighs against revealing John Doe's identity to the public.
It seems to me the same could be said of a vast range of libel plaintiffs, whether they are suing over accusations of sexual assault or over other accusations that could be devastating to reputation if publicized—accusations of fraud, embezzlement, professional incompetence, racist actions, and more. And while part of the argument stresses the plaintiff's age (he must be in his early 20s), surely that can't make a legal difference here, no? Does it follow that defamation cases should indeed generally be litigated under pseudonyms?
I should note that courts have indeed allowed pseudonymity for plaintiffs challenging universities' Title IX determinations, and I'm not sure that's right. But in any event, those were quite unusual cases; extending them to normal defamation lawsuits, even arising out of accusations at a university, strikes me as quite a step. For more on all this, see my The Law of Pseudonymous Litigation article.
