No Pseudonymity for Employment Plaintiffs Alleging Rape and Other Sexual Harassment, Says Fed. Court in N.Y.
From Judge Lewis Liman’s decision Wednesday in Doe v. Branca USA, Inc. (S.D.N.Y.); cases throughout the country are split sharply on this question, see Apps. 2a & 2b of my The Law of Pseudonymous Litigation:
Plaintiffs allege that they were sexually abused by the Chief Executive Officer of Branca USA. The complaint alleges that Jane Doe 1 was drugged and raped, and that Jane Doe 2 was sexually assaulted on numerous occasions. It further alleges that both women were groped and harassed, and that when they complained, they suffered retaliation….
Plaintiffs argue that they should be permitted to proceed pseudonymously. They note that the complaint contains detailed allegations of rape and sexual assault and argue that they will suffer significant psychological harm if they are forced to reveal their identities to the public. They also assert that the defendants will suffer no prejudice if Jane Doe 1 and Jane Doe 2 are permitted to pursue their claims anonymously, as counsel has identified their names to counsel for defendants. Finally, they assert that they have sought mental health treatment and would experience significant harm if forced to reveal their identities to the public.
Federal Rule of Civil Procedure 10(a) requires that the title of a complaint name all the parties to a litigation; this requirement “serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly.” “[W]hen determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff’s interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant.” “The people have a right to know who is using their courts.” …
The courts in this District have considered in several cases whether to permit a plaintiff who alleges that she or he has been raped or been the subject of sexual assault to proceed pseudonymously…. [T]he results across the board come down to this: A claim by an adult plaintiff to have been the victim of sexual abuse and to have suffered physical or psychological damage as a result, accompanied by sufficient facts to support that claim, is not enough to entitle a plaintiff to proceed anonymously.
Were it otherwise, virtually all claims of adult sexual assaults would ipso facto proceed anonymously. It is a rare case where a plaintiff who has been sexually assaulted or raped has not suffered some physical or psychological injury. The rule is the same for a plaintiff as for a defendant who is accused and who might want to keep his or her identity confidential. Courts have put weight on the right of the public to know the identity of the litigants as well as on the interest of the accused to be able publicly to confront the accuser. Thus, something more is required to rebut the presumption of public access, at least in cases involving adult sexual assault, and that something more frequently has to be evidence of real (and not conclusory) harm that is substantial and that will flow directly from and is directly linked to disclosure of the party’s name.
In Rapp v. Fowler (S.D.N.Y. 2021), the court denied the application to proceed pseudonymously of one of two plaintiffs who alleged that he had been the victim of a sexual assault by the actor Kevin Spacey thirty-five years earlier when he was a teenager. The court recognized that “[a]llegations of sexual assault are ‘paradigmatic example[s]’ of highly sensitive and personal claims and thus favor a plaintiff’s use of a pseudonym” and stated that “allegations of sexu
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