Now this is troubling. In those cases I have brought where sexual assault is a component, I have used “Jane Doe” pseudonyms to protect the privacy of my clients. Now a federal judge says this can’t be done in a case he has heard.
In a decision on the front page of today’s New York Law Journal by Judge Lynch (Southern District of New York), he denies the plaintiff the right to proceed in such fashion in Doe v. Del Rio (WL 3616963):
In this civil rights action, plaintiffs Jane and John Doe seek damages from defendant police officers and the City of New York for allegedly egregious acts of police brutality and abuse. They have brought the suit pseudonymously, with the permission of a judge of this court obtained ex parte before filing, contending that their interests in privacy outweigh the normal presumption that suits be brought in the parties’ proper names. Defendants now move to revoke this permission and require the caption to reflect the true names of the plaintiffs.
After an extensive analysis of the pros and cons of allowing such actions, Judge Lynch goes on to write:
While there may be circumstances where the sensitivity of the subject matter is so great as in itself to justify pseudonymity without a specific showing of harm, this case … is not of such extreme sensitivity. Plaintiffs allege that defendant Brady “pulled plaintiff Jane Doe towards him and attacked her sexually, by fondling her breasts, arms, neck and back, kissing her, and rubbing his body against her.” (Compl. ¶ 45.) The Court is loath to weigh degrees of violation, and does not minimize the wrongfulness of the acts alleged or the suffering of anyone subjected to them; there is no such thing as a “mere” or “minor” forcible indignity. Nevertheless, there are degrees of abuse, and the actions alleged here are no more intimate than those alleged in hundreds of sexual harassment cases that are prosecuted openly in the victims’ names every day in our courts. The facts of this case are not the sort of exceptional circumstances that in and of themselves justify overriding the constitutional presumption of openness.
Judge Lynch writes, in a conclusion I think is troubling considering the allegations:
The Court appreciates that the allegations in the complaint concern events that anyone would prefer to keep private, and that there is evidence that Jane Doe has been psychologically harmed by those events. Nevertheless, the nature of the charged acts, repulsive as they are, is not so extreme as to support sufficiently an interest in anonymity. The Court accepts that, as her therapist has attested, revisiting these events may occasion anxiety for Jane Doe. But the greater part of the distress occasioned by the lawsuit is intrinsic to the pursuit of this action, even under conditions of anonymity. Any additional burden resulting from the public revelation of plaintiffs’ identities has not been shown to be exceptional, and it must be borne in light of the larger interest in open judicial proceedings.
As plaintiffs have not established that this is an exceptional case warranting pseudonymous litigation, defendants’ motion to require amendment of the caption of the case is granted.
Federal judges are powerful. And wide discretion is given to their opinions making a Second Circuit reversal unlikely. But it seems almost as if the individual has been victimized twice, first by an assailant, and then, if she chooses to use the courts, forcing her to reveal herself to the public at large. Judge Lynch has written that he does not wish to “minimize the wrongfulness of the acts alleged”, but in forcing the plaintiff to reveal herself to the public, it seems he has done just that.
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