No Pseudonymity in Lawsuit Alleging Virginia Military Institute Hazing

From Anonymous v. Bennett, decided May 3 by Roanoke County Judge Charles Dorsey:

Virginia Code section 8.01-15.1 permits a Plaintiff to proceed anonymously under a pseudonym "if the anonymous litigant discharges the burden of showing special circumstances such that the need for anonymity outweighs the public's interest in knowing the party's identity and outweighs any prejudice to any other party." Courts may consider:

whether the requested anonymity is intended merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a sensitive and highly personal matter; whether identification poses a risk of retaliatory physical or mental harm to the requesting party or to innocent nonparties; the ages of the persons whose privacy interests are sought to be protected; whether the action is against a governmental or private party; and the risk of unfairness to other parties if anonymity is maintained….

In refusing to allow plaintiff to proceed pseudonymously, the court relied in part on plaintiff's identity already having become widely known at VMI, stemming from his testifying at a disciplinary hearing arising from plaintiff's internal VMI complaint. But the court also added this analysis of the "risk of unfairness to other parties if anonymity is maintained" factor, which could be more generally applicable:

To resolve this factor the court must consider if "the defendant ought to be 'required to defend [himself] publicly while plaintiff could make [his] accusations from behind a cloak of anonymity."' The court must also consider the disadvantage based on embarrassment defendants must contend with when these types of claims are legitimized through the plaintiff's use of a pseudonym.

Defendants are accused of conspiring to, and ultimately completing, hazing, assault, battery, and false imprisonment. They have been publicly identified as potential tortfeasors in both state and federal courts. As Plaintiff notes, this case has received attention throughout the VMI alumni community, with such attention focused on Defendants' identity while Plaintiff receives the benefits of anonymity.

Each of the concerns Plaintiff fears—professional and social retaliation, loss of his reputation, loss of career opportunities—Defendants also contend with publicly. Here the personal and professional embarrassment on these claims against them risks unfairness to Defendants and weighs in favor of identifying Plaintiff.

On the merits, the court allowed plaintiff's assault, battery, false imprisonment, and civil conspiracy claims to go forward, at least as to some defendants.

Here is the court's account of the factual allegations:

The Virginia Military Institute (VMI) houses its entire student body—The Corp of Cadets—in military barrack style housing. The Corp is organized into various companies and the governed by a variety of committees. Within each company are fourteen cadre selected from the upperclassmen who are responsible for training their company's freshmen, known as "Rats." The entire class of freshmen is referred to as the "Rat Line" and does not earn full cadet status until they participate in a tradition known as a "breakout" sometime during the spring semester. The cadre have immense power over Rats and control practically every minute of every day. Outside of this formal Cadre-Rat power system, upperclassmen traditionally subject Rats to extracurricular activities known as Rat Missions; VMI explicitly prohibits Rat Missions.

The Evening of January 31, 2018

On the evening of January 31, 2018, Plaintiff and his classmate John Doe 2 participated in a Rat Mission organized by Carter McCausland. McCausland ordered another Rat to steal John Doe 2's mattress and place it in an upperclassmen's room. Once stolen John Doe 2 was ordered to recover the mattress. When his initial attempted failed he was ordered to try again and recruited Plaintiff to assist in the recovery effort.

After John Doe 2's initial failure McCausland took efforts to plan for his return. These efforts including informing the residents of the room in which the stolen mattress was located that another recovery attempt would occur. Jordan Bennett and Brayden Carver called other upperclassmen for assistance with the Rat Mission. Tyler Hamilton and Alec Hoopes arrived at some point during this preparation stage. Hamilton assisted in clearing the center of the room for Plaintiff and John Doe 2's safety and the door hinges were duct taped to make the door harder to open. At some point an aerosol air freshener or cleaning product was located or brought to the room along with water and towels.

Once these preparations were complete, McCausland contacted the VMI Tactical Officer to ensure he would not discover the mission. John Doe 2 and Plaintiff informed McCausland they did not want to come to the room; McCausland read this message aloud before responding "No, you guys have to come down tonight."

Plaintiff and John Doe 2 arrived at the room and John Doe 2 was immediately summoned in and physically assaulted by Carver and Bennett. Soon thereafter Plaintiff was also summoned in and physically assaulted by Carver and Bennett. Once both Rats were subdued, they were bound at the legs and wrists with duct tape, forced into a makeshift cage formed by the upperclassmen's beds, and informed they were prisoners; to amplify this prisoner effect Carver requested his Amazon Echo device play "ISIS Music."

John Doe 2 was then ordered out of the cage and instructed to lie on his back. Carver placed a towel over his face and poured water over it-a technique known as waterboarding-to simulate drowning. Plaintiff was next ordered to assume the same position. Carver placed a towel over his face, Bennett forced it further into his mouth, and they together poured two cups of water over his face causing him gasp for air. Following the waterboarding incident both Rats were ordered into a smaller cage under a desk. During this captivity Hamilton and Hoopes saw the Rats crowded onto each other but did nothing to help.

Following another period of captivity, Plaintiff and John Doe 2 were ordered to wrestle half-naked for their freedom. Plaintiff defeated his classmate but refused to leave without his fellow Rat. Finally, sometime later, Defendants released the Rats into hallway after duct taping them shirtless and back-to-back.

Following this Rat Mission, Plaintiff informed his upperclassmen mentor who determined the mission had crossed a line and filed a report within the chain of command. Carver, McCausland, and Bennett were each punished by the VMI Administration for their role with one Administrator testifying during a disciplinary hearing that it "was probably the worst or one of the top three worst incidents … that [he] kn[e]w of in the entire time" he was employed at VMI. Plaintiff was forced to testify at McCausland's hearing and began to experience backlash shortly thereafter. Due to this backlash he was forced to transfer to another institution to complete his education.