Can Plaintiffs Alleging Rape Sue Pseudonymously?

The question remains unsettled, with lots of courts decisions on both sides.

From today's decision by Judge Roy Walton in Doe v. Wyndham Vacation Ownership, Inc.:

In this employment discrimination case, Plaintiff sues her former employer after she was allegedly raped by one co-worker and sexually harassed and assaulted by another…. Federal Rule of Civil Procedure 10(a) requires that "every pleading" in federal court "must name all the parties." But a narrow exception exists when a party can establish "a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings." …

Plaintiff argues for the use a pseudonym because the sexual assault allegations concern information of the utmost intimacy and revealing her name will subject her to substantial social stigma. In cases involving sexual assault, personal embarrassment alone does not justify use of a pseudonym. See Doe v. Sheely (11th Cir. 2019) ("This Court has said that 'personal embarrassment' alone is not enough for leave to proceed anonymously."); see also Plaintiff B v. Francis (11th Cir. 2011) ("courts 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"). And while social stigma can overcome the presumption of openness in court proceedings, Plaintiff must establish that concerns of social stigma are well-founded and particularized. See E.K v. Walt Disney Parks & Resorts U.S., Inc. (M.D. Fla. 2022); Doe v. Neverson (11th Cir. 2020) (differentiating general allegations of potential personal embarrassment from the situation there where plaintiff made specific allegations of being from a "devout Muslim family" who would experience shame and harm to her family and reputation and submitted examples of specific harassing and threatening comments posted online). Plaintiff's conclusory allegations that "this matter is likely to be highly contentious" and that "potential customers and employers will simply google her name and discover" this case are speculative and insufficient to overcome the presumption of openness in judicial proceedings.

The court also noted, in a footnote, that, "Plaintiff also voluntarily posted her allegations on social media which undercuts her claim of possible social stigma or public harassment.  Plaintiff cannot avail herself of a public forum to make her claims against Defendant and then shield her identity from public disclosure against the strong presumption that judicial filings are matters of public import." But this seems not to have been central to the court's analysis—it was, after all, a footnote. Note also that the posting was apparently on Facebook, and thus presumably aimed at people who are relatively close to her; it wasn't searchable by the world at large.

For a sense of just how broad and deep the split on these questions, see Apps. 2a & 2b (pp. 1430-37) of my The Law of Pseudonymous Litigation.

Comments

[Gasman]

At minimum a plaintiff wishing anonymity should grant the same to the defendant.
After all, the unspeakable taint of allegation never goes away for the defendant once their name is forever searchable.
Once a plaintiff identifies the defendant in any way(whether legal proceedings or publicly visible posts), then anonymity for plaintiff should not be considered.

[Rossami]

I could live with that rule.

[David Welker]

It is better for society if the accused are properly identified. Why? Because re-offending is such common behavior.

Thinking that the only interested person is the current victim is likely incorrect.

[Martinned]

So publish their identity after the court has ruled for the plaintiff, not before.

[KenveeB]

You're assuming the accused is guilty. Granting psudonymity until a finding is made would protect future victims but not victimize someone who might be the subject of a false allegation. I'd be in favor of this rule.

[Commenter_XY]

Fair is fair; I have to agree.

[Martinned]

Me too.

[David Welker]

There should be no social stigma attached to being a rape victim. Rape is unwanted.

I believe that some victims are very concerned about being believed. Which is understandable. But people understand that people who are correctly and accurately accused of a crime will often deny it and try to distract from their own behavior by focusing on the victim.

The solution of pseudonymity to minimize trauma is understandable. But a better approach is just to bite the bullet and sue without shame. Rape is unfortunately a very common crime and victims shouldn’t feel like they have something to hide.

Ultimately, we need to teach our daughters to be strong and proud so that they are not easily re-victimized by feelings of embarrassment. It is bad enough to be raped, but the feeling that many victims have that they are the ones that have something to hide makes it even worse. The perpetrators are the ones with something to hide.

[damikesc]

Duke lacrosse players were openly accused of rape...in spite of it 100% not happening.

People accused have massive problems getting their names cleared.

[David Welker]

The Duke Lacrosse case was an example of the justice system working just fine. The DA was disbarred. Each player received approximately $20 million from Duke University to settle their cases.

It is true that accusations can be false. This is why we have trials.

The narrative that men are typically victims of false rape charges brought by women rather than perpetrators of rape is not true from a statistical standpoint.

[ReaderY]

The Rev. Ian Pseudonymously seems to be getting sued a lot these days.

[Magister]

My reaction was certainty that Sue does not want to be raped, whether under a pseudonym or not, by any persons, plaintive or otherwise, no matter that they might or might not be alleging as an intransitive verb.

[ReaderY]

Hmmm…I think “alleging” as you’re using it would be a post-positive present participal adjective. We have present participle adjectives. Coming attractions, running water. Why not alleging plaintiffs? In formal and legal English we have post-positive adjectives. Attornies general, courts martial. So why not a post-positive present participal adjective? Plaintiffs alleging.

[Magister]

Good point, ReaderY, I was thinking just of allege.

Narrator: ReaderY, the secret identity of Y. Reader, Speed Reader's older brother.